STOPPING THE BUCK

As chief justice of the United States, William Rehnquist not only
presides over the court, he serves as an advocate for judges -- and he
performed that latter chore dutifully, if not convincingly, in his
annual "state of the judiciary" message.

Congress, Rehnquist said, should have at least consulted the judiciary
last spring before passing a bill that reduced judges' discretion in
sentencing and required that records be kept of those who don't follow
sentencing guidelines.

Those records, he wrote, "could appear to be an unwarranted and ill-
considered effort to intimidate individual judges in the performance
of their judicial duties."

Judges should have been asked their opinion, he insisted, because they
have "an institutional commitment to the independent administration of
justice and are able to see the consequences of judicial reform
proposals that legislative sponsors may not be in a position to see."

As a matter of courtesy, perhaps they should have been asked. However,
it probably wouldn't have changed anything. Congress was aware of
their sentiments before voting.

The reality is that, under the Constitution, judges do not have
unlimited authority to do as they please. Congress is empowered to
decide what is illegal and what penalty is to imposed for breaking the
law. The courts are to determine whether the accused is guilty and
then impose a sentence, within the range allowed by Congress.

It hurts judicial credibility when two people are convicted of the
same crime and one gets a substantially harsher sentence than the
other. Not only is that unclear to the public, who may be unaware of
differing circumstances, it's a good way to get sentences overturned
on appeal. When judges ignore guidelines, those inconsistencies
inevitably crop up.

Some flexibility indeed is needed because the circumstances in each
crime generally vary. Judges, however, have no right to overstep their
already-vast authority.