CHIEF JUSTICE ATTACKS A LAW AS INFRINGING ON JUDGES

WASHINGTON, Dec. 31 -- Chief Justice William H. Rehnquist criticized
Congress in unusually pointed terms on Wednesday for a recent law that
places federal judges under special scrutiny for sentences that fall
short of those called for by the federal sentencing guidelines.

The legislation, enacted last spring as a little-noticed amendment to
the popular Amber Alert child protection measure, "could appear to be
an unwarranted and ill-considered effort to intimidate individual
judges in the performance of their judicial duties," the chief justice
said in his annual year-end report on the federal judiciary.

"It seems that the traditional interchange between the Congress and
the judiciary broke down" when the amendment passed without any formal
evaluation from the judiciary, he added.

At its most recent meeting, in September, the Judicial Conference of
the United States, a group of 27 judges who make policy for the
federal courts, voted unanimously to ask Congress to repeal the
amendment. Congress has not acted on the request from the conference,
which the chief justice heads, and the prospect that it will do so
appears slight.

The chairman of the House Judiciary Committee, Representative F. James
Sensenbrenner Jr., Republican of Wisconsin, issued a statement on
Wednesday defending the legislation and responding to the chief
justice's criticism. Mr. Sensenbrenner said it had been necessary for
Congress to act because the "growing problem of downward departures"
- -- the term for sentences that fall below the minimum produced by the
guidelines -- had been "undermining sentencing fairness throughout the
federal system."

Mr. Sensenbrenner said Congress was aware of the judiciary's
opposition when it adopted the amendment.

"This disagreement," he said, "resulted from a policy dispute between
Congress and the judiciary and did not result from any breakdown in
communication between the branches or a lack of opportunity for judges
to express their thoughts on this issue."

Nonetheless, it is clear that Congress is not of one mind on the
question. Senator Edward M. Kennedy of Massachusetts, a leading
Democrat on the Senate Judiciary Committee, called the chief justice's
criticism "extraordinary" and said he agreed that the amendment was
undermining judicial independence, by creating "blacklists based on
the sentencing practices of individual federal judges." Mr. Kennedy
said he had introduced a bill to repeal the amendment.

The measure at issue is known as the Feeney Amendment, for its
sponsor, Representative Tom Feeney, Republican of Florida. It
instructed the United States Sentencing Commission, the agency that
sets the guidelines, to issue new rules to "ensure that the incidence
of downward departures is substantially reduced." The commission was
ordered to maintain judge-by-judge records of sentencing departures
and to send the files to the attorney general, who in turn is obliged
to provide the information to the Judiciary Committees of both houses.

In one sense, given the Judicial Conference's official opposition to
the Feeney Amendment, Chief Justice Rehnquist's critical remarks did
little more than reflect existing judicial policy. The Judicial
Conference's action itself reflected the views of many federal judges,
who have become increasingly resentful of the limits -- mandatory
minimum sentences in some cases, in addition to the guidelines -- that
have been placed on their traditional sentencing discretion.

But the chief justice's choice of subject for his year-end statement
- -- this was his 18th -- is never casual, and by making the sentencing
debate the focus of the report, he was clearly trying to raise the
issue's public visibility and bring it more forcefully than before to
the attention of Washington policy makers. He has long been concerned
about guarding judicial independence, and it was in those terms that
he framed his critique of the Feeney Amendment.

The chief justice said that "by constitutional design," judges had "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."

He suggested that while "judges are bound to respect" the
Congressional perspective on questions of judicial administration, the
respect should run in both directions.

"Consultation with the judiciary," he said, "will improve both the
process and the product."