"Starting in the 104th Congress, we have witnessed a deterioration in the relationship between the legislative and judicial branches," American Bar Association President Dennis W. Archer said in remarks prepared for the 64th Sixth Circuit Judicial Conference held in May 2004, in Louisville, Kentucky. Perhaps, he said, it was time to step back and find a way to return to the comity of past eras.

Archer, with Senator Mitch McConnell (R-KY), Chief Judge John G. Heyburn II (W.D. Ky), and former Congressman Romano Mazzoli appeared on a panel during the conference to discuss, "The Courts and Congress," with Chief Judge Danny Boggs (6th Cir.) as moderator.

Archer noted that certain judicial decisions have caused some members of Congress to label judges as activists and even call for impeachment of certain judges.

"Although robust criticism of judicial decisions is fully protected by the First Amendment and is indispensable to the well-being of a democracy," Archer warned, "misleading or intemperate judicial criticism misinforms the public, distorts their view of the judicial process, and may undermine public confidence in our courts."

According to Archer, the ABA opposes legislation to strip controversial issues from the federal courts, or to curtail remedies available to federal courts in cases involving constitutional rights for the purpose of changing constitutional law. These legislative initiatives include a resolution introduced in the House affirming the sense of Congress that judicial decisions should not be based on any foreign laws, court decisions, or pronouncements of foreign governments that have not been expressly approved by Congress; the so-called "Feeney Amendment," which substantially reduced judicial discretion to depart downward from the Sentencing Guidelines; and the renewed efforts to divide the Ninth Circuit despite lack of evidence the Circuit needs restructuring.

"The ABA steadfastly opposes these court stripping bills," Archer stated, "along with other legislative initiatives that infringe upon the separation of powers between Congress and the courts."

He noted that a funding crisis further threatens the courts in fiscal year 2005, and may have implications for the independence of the Judiciary since "inadequate court resources will surely affect the quality and timeliness of justice."

These issues, said Archer, "paint a disturbing picture of a Judiciary whose independence is being eroded as trust between the branches vanishes. Maintaining public confidence in the Judiciary depends upon Congress and the courts interacting with the necessary spirit of restraint and common purpose."

"From the judges' perspective, the challenge is for Congress to engagein its legitimate oversight role without micromanaging and in a manner that respectsthe independence of the Judiciary," Archer said. "From Congress' perspective,the challenge for the federal Judiciary is to understand that not every disagreementis a threat to judicial independence. . . . Then, and only then, can we ensurethe continued vitality of our independent Judiciary, which the late Senator SamJ. Ervin Jr., called 'the most essential safeguard of a free society.'"

From the remarks of Senator Mitch McConnell (R-KY) at the Sixth Circuit Judicial Conference in May 2004

On the problem of regulation through litigation "Courts are not in the best position to consider far-reaching public policy issues. Unlike legislatures, they cannot gather facts from a broad range of sources. Judges are confined to arguments made in court. And these arguments are made by lawyers who have a duty to act in the best interest of their clients, which may or may not coincide with the public interest."

On adequate resources and judicial pay "I am sensitive to the fact that the federal Judiciary must have adequate resources to do its job, including making sure that federal judges are appropriately compensated for their hard work. If we're going to demand a high quality of judging, we have to make sure we pay judges enough so that attorneys are willing to do the job. "One way to do this is to decouple the pay raises of federal judges from the pay raises of Representatives and Senators. Otherwise, federal judges will continue to be held hostage to the 'pay raise politics' that often infects the appropriations process."