In trying to figure this all out, I came across this from the American Bar Association:
"An Independent Judiciary" - Report on the Commission on Separation of Powers and Judicial Independence
http://www.abanet.org/govaffairs/judiciary/home.htmlOne of the sections is 'The History and Evolution of Judicial Independence'
http://www.abanet.org/govaffairs/judiciary/rhistory.htmlHere is their analysis of what the Framers intended:
B. THE ORIGINAL UNDERSTANDING OF JUDICIAL INDEPENDENCE
The provisions for judicial tenure during good behavior and a compensation that could not be diminished were a part of the proposed Constitution from the very beginning and do not appear to have been seriously threatened during either the convention or ratification debates. The founders thus remained steadfast in their support for judicial independence and assumed that life tenure and irreducible salary were the necessary and sufficient means to preserve the independence of the judiciary as an institution, as well as the decisional independence of individual judges. At the same time, they did not appear to consider the extent to which judicial independence might be undercut in other ways, such as through political branch manipulation of the judiciary's nonremunerative resources.
The precise language of the judicial power clause was added midway through the convention by the Committee on Detail, although from the outset the delegates supported the establishment of a third judicial branch with exclusive authority over the judicial function. While this clause obviously contributed to the judiciary's independence as a distinct department of government with powers that no other department could exercise, the framers characterized the clause more in terms of its contribution to separation of powers than independence per se, for which reasons it was not discussed alongside the good behavior and compensation clauses in the convention and ratification debates over judicial independence.
Far more volatile than the good behavior, compensation, or judicial power clauses were provisions enabling the political branches to hold the judiciary accountable for its conduct - particularly those governing impeachment, and those empowering Congress to establish the lower federal courts.
With respect to the scope of impeachable conduct, there appears to have been general agreement in the convention and ratification debates that impeachment ought to reach "political" offenses not recognized as conventional crimes at common law. In the Federalist Papers, for example, Hamilton argued that judicial overreaching was not a problem to be feared, because the judges would be unwilling to alienate Congress and risk impeachment:
"There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body entrusted with it, while this body as possessed of the means of punishing their presumption by degrading them from their stations."
As to Congress' power to constitute the lower federal courts, it needs to be emphasized that the Constitution does not establish the lower federal courts but merely authorizes Congress to establish them. Congressional authority to regulate the lower federal courts' practice, procedure, and administration, derives from its power to constitute (or not to constitute) the federal courts, which, when taken in combination with the "necessary and proper" clause, is thought to include the power to regulate the operations of whatever lower courts Congress sees fit to create.
The framers' decision to authorize Congress to establish the lower federal courts, rather than to have the Constitution establish them directly, has thus proved critical to the contemporary balance of power between the first and third branches. Even so, this appears not to have been an intended consequence, so much as a side-effect of a decision having more to do with reducing tension in the relationship between state and federal power. As originally proposed, the Constitution would have established the lower federal courts outright. Many delegates were concerned, however, that federal trial courts would ride roughshod over their state counterparts. As a compromise, the proposed Constitution was amended to empower Congress to establish lower federal courts, with no explicit requirement that it do so. The implications of that compromise for Congress' regulatory authority over the courts were unexplored at the convention, were under-explored in the ratification debates, and were thus left to be pursued by a later generation.
So the way I read this analysis, the intent of the
Framers was judicial independence and separation of powers between Congress and the courts. They left it to future generations to figure out how their decision to allow Congress to establish the lower federal courts would translate into any Congressional regulatory authority over the lower courts. So for Sensenbrenner to speak for the Framers this way is misleading.
Even more clearly, the Framers definitely did not intend Congress to have regulatory authority over the Supreme Court, as Grassley is trying to bring about.
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