Railroading Rosenbaum: GOP hunts down a sitting judge

Republicans have a double-standard going. They won't release internal memos from Miguel Estrada's tenure at the Solicitor General's Office to give the Senate a more full picture of his judicial philosophy, arguing as Norm Coleman does that doing so would "compromise the ability of the Justice Department to represent the United States in court." At the same time they're working to subpoena a sitting judge, Minneapolis' own James Rosenbaum, chief judge of the US district court, to release sealed documents on his judicial decisions. Republicans, led by James Sensenbrenner, believe Rosenbaum's sentencing has been too lenient, specifically in cases of first-time drug offenses. Rosenbaum's attorney says the Judicial Committee's requests "overstep congressional authority and threaten the separation of powers," according to the Wall Street Journal.

This unprecedented act against a sitting judge is yet another way--like stacking the judiciary with neo-conservative activist judges like Estrada--for the Republicans to reshape the courts in their own likeness. Rosenbaum's sentences don't seem to entirely match with the Bush administration's demonstrated beliefs: some drug offenders get lighter sentences, while corporations don't get a judge who falls all over himself to bend the laws. For example, in 2000 Rosenbaum threw out a lawsuit filed by the logging industry in Northern Minnesota. The loggers, desiring to do more commercial timber cutting on federal land, argued that "deep ecology"--a way of looking at the interconnectedness between all living things--was guiding the Forest Service's policies and that this is a violation of the separation of church and state ("deep ecology," they say, is a religion). Rosenbaum called this "illogical." (Under Bush, the Forest Service continues to open more federal lands to commercial logging.)

Republicans seem particularly peeved that Rosenbaum resisted handing down sentences of a decade or more for minor drug offenses; sometimes his prison sentences were significantly below the federal minimum sentence. Last November, Rep. Robert C. "Bobby" Scott (Va.), ranking Democrat on the subcommittee, defended Rosenbaum, saying the Republicans wanted to punish Rosenbaum because they didn't like his views on the sentencing guidelines.

And Rosenbaum--appointed by Reagan in 1985--has been vocal about his criticisms of strict sentencing guidelines, especially as they apply to first-time offenders with dependent children. Low-level drug offenders, he says, often end up in prison with rapists and murderers. The Wall Street Journal reports that the federal prisons are flooded with drug offenders, mainly because of harsher sentencing guidelines passed in 1987; while the crime rate declined in the 1990s, the number of inmates--the majority drug offenders--rose from 33,000 in 1987 to 128,000 in 2002. And sentences for crack cocaine possession--prevalent among black offenders and a cheaper version of the cocaine preferred by white users, include considerably longer prison stays. Rosenbaum believes these tougher guidelines, especially for first-time offenders with dependent children, hurt moms and kids.

"When a man goes to jail, he usually leaves behind his children to his wife or girlfriend,'' he adds. "But let's face it. It is mothers who primarily care for children. What happens when they go to prison?'' Rosenbaum explains. ``It is extraordinarily infrequent that a male cares for them. What happens is that these children are either sent to live with a sister or a mother or become wards of the state?"

A judge like Rosenbaum must seriously irk conservatives who seem hell-bent on throwing the book at those committing crimes involving Christian moral character--minor drug offenses or Bill Clinton's dalliances with interns--but seem to have overlooked the billion-dollar deceptions of white collar criminals like Ken Lay and Dick Cheney. And they seem more intent on putting a long-serving judge through the ringer than a tight-lipped neo-conservative lawyer who's auditioning to serve on the country's second-highest court.

Yesterday, the Republicans agreed to hold off on their subpoena of Rosenbaum, for the time being. Let's hope they call off the dogs, because as U.S District Court chief judge John Coughenour says, this subpoena could have a chilling effect on judges nationwide. "I think it would be demoralizing and very disturbing to most of us" for Congress "to focus on individual judges and their practices," he said. "Judges struggle mightily with their sentencing decisions."