On the danger of wearing two hats: Mistretta and Morrison revisited.

• Author: Krotoszynski, Ronald J., Jr.

[T]he Constitution, at least as a per se matter, does not forbid

judges to wear two hats; it merely forbids them to wear both

hats at the same time.(1)

More than any other separation of powers/delegation doctrine decisions, Mistretta v. United States(2) and Morrison v. Olson(3) broadly endorsed the functionalist vision(4) of the modern administrative state. In both Mistretta and Morrison, the Supreme Court assumed that the service of federal judges in quasi-legislative (Mistretta)(5) and quasi-executive (Morrison)(6) roles would not undermine the integrity of the Article III courts. Subsequent developments suggest that the Supreme Court significantly underestimated the corrosive impact of permitting federal judges to discharge consecutively (if not concurrently) judicial, legislative, and executive functions.

Operational difficulties associated with the independent counsel provisions of the Ethics in Government Act(7) and the Sentencing Reform Act (SRA)(8) have disproved crucial assumptions that underlie the Court's decisions in Mistretta and Morrison. In the case of the United States Sentencing Commission ("Sentencing Commission"), federal judges serving as Sentencing Commissioners have refused to recuse themselves both in cases challenging the legality of particular guidelines and in cases challenging the entire system of sentencing guidelines.(9)

John Locke observed that nothing is more fundamentally unfair than a person serving as a judge in his own case.(10) Wearing the hat of "Sentencing Commissioner," federal judges serve as legislators, drafting sentencing rules.(11) Afterwards, wearing the hat of "Article III judge," they pass upon the legality of their own work product.(12) In reality, judges who serve as Sentencing Commissioners are refusing to recuse themselves in cases involving their own work product(13)--Locke's objection notwithstanding. Although it is doubtful that the Mistretta decision anticipated such a state of affairs, its real-world effects are to the contrary.

Similarly, recent events have cast serious doubts on the validity of Morrison's assumption that federal judges could appoint independent counsels without compromising the political independence--and hence credibility--of the Article III courts. Judges serving on the Special Division, which is charged with appointing independent counsels, have become deeply embroiled in what are essentially political disputes.(14) This is an incredible turn of events, given the bulwark Article III erects to protect federal judges from such influences.(15) Indeed, most federal judges abandon all partisan activity upon being named to the bench.(16)

Against this backdrop, the decision made by a judge of the United States Court of Appeals for the District of Columbia to meet with two highly partisan Republican senators, apparently to discuss (among other things) the appointment of an independent counsel in the Whitewater affair,(17) simply is inappropriate. When outraged members of the public filed formal ethics complaints protesting the judge's behavior, however, the Chief Judge of the D.C. Circuit not only defended his colleague's behavior, but embraced it openly.(18) The Chief Judge's decision later was affirmed by the Judicial Council of the District of Columbia Circuit by a vote of eight to two.(19) If service on the Special Division means that Article III judges must participate in essentially political disputes, then, Morrison notwithstanding, the independent counsel provisions of the Ethics in Government Act cannot be constitutional.

The Supreme Court has failed to appreciate the fragility of the Article III courts in our system of democratic government by rushing to show its openness to the new administrative state, in which the blending of executive, legislative, and judicial functions is to be appreciated as a necessary, if not tasty, constitutional jambalaya.(20) A fundamental difference exists between congressional schemes that redistribute the division of political power between the politically-accountable executive and legislative branches and programs that attempt to place such power in the hands of electorally unaccountable federal judges.(21)

Simply put, a scheme that vests unelected judges with powers and responsibilities that the Constitution delegates to the executive or legislative branches will create a corresponding public demand for political accountability in the exercise of these delegated functions. The net effect of such arrangements is not difficult to predict: the public's confidence in the nonpartisan nature of the Article III courts will be undermined and ultimately destroyed; independent, nonpartisan, "neutral" judges are essential to the legitimacy of the Article III courts.(22)

Part I of this Article discusses the Supreme Court's opinion in Mistretta and its aftermath in the lower courts. Part I gives particular attention to the failure of Sentencing Commissioners/judges to recuse themselves in cases involving direct challenges to the legality of the United States Sentencing Commission's work product. Part II reviews the Morrison opinion and describes the real-world effects of requiring federal judges to undertake an essentially political task. Part III examines historical counterexamples of judges undertaking extrajudicial service in the executive branch of government. Finally, Part IV offers an agenda for positive reform and takes up the broader policy concerns that necessitate reform. Significantly, Part IV argues that an element of formalism should be deemed essential in all separation of powers analyses that involve delegations of political authority to either Article III courts or Article III judges.

The exigencies of the modern administrative state cannot be permitted to justify radical departures from the Framers' liberty-enhancing scheme of separated and divided powers. If formalism truly is dead (Justice Scalia's protestations notwithstanding),(23) Congress is free to task Article III judges with extrajudicial (i.e., nonjudicial) duties. The Supreme Court, however, must require Congress to structure these delegations in a manner that avoids doing violence to the credibility and legitimacy of the judicial branch. Unlike the executive and legislative branches of the federal government, the judiciary is not politically accountable to the electorate.(24) Accordingly, the federal courts should treat novel power sharing arrangements that involve transfers of executive or legislative responsibilities to the judiciary with greater skepticism than they treat delegations of authority between the politically accountable branches.(25) Because Mistretta and Morrison have failed to protect adequately the institutional integrity of the Article III courts, the Supreme Court must adopt more detailed rules to govern the participation of judges in extrajudicial undertakings. If federal judges are to wear two hats (or more), these new accoutrements must not clash with their old wardrobes.

1. MISTRETTA: WHO WILL JUDGE THE JUDGES?

   1. A Brief Review of the Mistretta Holding

      In 1984, Congress created the United States Sentencing Commission under the auspices of the SRA.(26) The SRA established the Sentencing Commission to oversee the reform of federal sentencing policy; its objective was to "review and revise" federal sentencing policy.(27) Incident to this duty, the Sentencing Commission would consult with authorities on the federal sentencing system.(28) Ultimately, Congress charged the Sentencing Commission with developing and maintaining a comprehensive system of guidelines that would govern federal district judges' sentencing decisions.(29) Mistretta presented a facial challenge to the constitutionality of the United States Sentencing Commission.(30)

      The Sentencing Commission was itself somewhat unique; unlike most independent federal commissions, Congress placed the Sentencing Commission "[with]in the judicial branch of the United States."(31) Notwithstanding Congress's placement of the Sentencing Commission within the judicial branch, it vested the President with the power to appoint each of the Commission's seven members.(32) The SRA also required that no fewer than three of the Sentencing Commissioners be federal judges selected from a nomination list consisting of six judges submitted by the Judicial Conference of the United States."

      The facts of Mistretta were fairly simple. John M. Mistretta had pled guilty to a single count of conspiracy related to the sale and distribution of cocaine.(34) At his sentencing, after rejecting arguments regarding the legality of the sentencing guidelines,(35) the district court applied these guidelines and sentenced Mistretta to eighteen months of imprisonment, to be followed by a three-year period of supervised release.(36)

      Mistretta's challenge to the constitutionality of the Sentencing Commission eventually found its way to the Supreme Court.(37) Before the Court, Mistretta argued that the Sentencing Commission was unconstitutional because the SRA unlawfully delegated legislative authority to an independent commission.(38) Mistretta also argued that the composition of the Sentencing Commission violated separation of powers principles.(39) This separation of powers argument had three components. First, Mistretta argued that Congress could not locate the Sentencing Commission within the judicial branch of government;(40) second, Mistretta claimed that the composition of the Sentencing Commission, i.e., the inclusion of federal judges, was constitutionally problematic;(41) and, third and finally, Mistretta claimed that the President's authority to appoint and remove Sentencing Commissioners impermissibly vested control of a judicial entity within the executive branch.(42)

      Writing for an eight to one majority, Justice Blackmun rejected the delegation challenge, noting that "we harbor no doubt that Congress'[s] delegation of authority to the Sentencing Commission is...