Jewish World Review June 9, 2004 / 20 Sivan, 5764
When judges investigate judges
Chief Supreme Court Justice William Rehnquist did the right thing by appointing a committee to evaluate how the federal judiciary deals with issues of misconduct, although he stumbled in selecting its members. Every powerful institution can benefit from occasional examination, and this is especially true of the judiciary. Federal judges are appointed for life, with almost no occasion for post-confirmation review. They do most of their work behind closed doors, making critical decisions that affect nearly every aspect of contemporary life, yet without any democratic accountability. An independent judicial branch is essential to the rule of law, of course, but that does not mean that judges' conduct should be free from public scrutiny.
It is therefore unfortunate that Justice Rehnquist did not reach beyond the judiciary when he named the committee. Five of the six members are judges (including the chair, Supreme Court Justice Stephen Breyer), and the sixth is Rehnquist's administrative assistant. The credentials of the individuals are impressive, but they sorely lack the perspective of ordinary citizens.
The committee might remedy this shortcoming by holding public hearings, inviting testimony from lawyers and litigants. Better yet, the committee could set up a group of advisers or liaisons, with representatives from the bar and business organizations, as well as civil rights and consumer groups. To do a good job, it will be necessary to get a solid view from ground level or preferably, the trenches rather than from the lofty heights of the bench.
Whatever its format, the committee has its work cut out. In the past few years, the court system has been repeatedly challenged on issues of transparency, impartiality and responsiveness. If it is to enhance public confidence, here are just a few of the questions that the committee must address.
- The Supreme Court continues to duck important conflict-of-interest questions, by assigning recusal motions to the individual justice whose impartiality is being questioned (as in the case of Justice Antonin Scalia's famous hunting trip with Vice President Dick Cheney). Many lower federal courts have adopted a better approach, taking disqualification motions out of the hands of the affected jurist, so that no judge makes the final decision on his or her own impartiality. The committee ought to recommend that the U.S. Supreme Court adopt a similar rule, or at least submit disqualification questions to the entire court.
- Every judge is required to file an annual financial disclosure statement, but it is not easy for the public or the press to get access to the information, which is kept on file in Washington. Four years ago, after considerable congressional pressure, the Federal Judicial Conference finally agreed to make the forms available to media organizations that intend to post them on the Internet. It is now time for the judiciary to take the logical next step, by directly posting the information on the Internet without waiting for media requests.
- The Judicial Conduct and Disability Act sets up a system for resolving misconduct complaints against federal judges. It is an open secret, however, that this system is opaque and impenetrable at best, and inhospitable to complainants at worst. While serious cases are not really "whitewashed," as Rep. James Sensenbrenner (R-Wis.) recently claimed, judges are clearly reluctant to rebuke their colleagues for any but the most egregious offenses and even then, they often do nothing more than issue private reprimands. The system would work better if there were more public information about its procedures and especially about the results of investigations. Justice Breyer and his committee members could begin by conducting a full-scale audit of these proceedings over, say, the past five years. If nothing else, they could determine whether there is consistency among the 13 federal circuits.
A small scandal has been brewing over the attendance of federal judges at "educational seminars" that may actually be junkets in disguise, held at fancy resorts with expenses covered by corporations that frequently have cases pending in the courts. The Breyer Committee should take a hard look at this practice, with an eye toward separating legitimate education from covert lobbying. One approach would be to prohibit sponsors from paying judges' expenses, while providing an adequate educational fund for every judge. At a minimum, judges should be required to disclose their free trips, including the identity of the sponsors, the precise location of the event and the full value of the accommodations.
There is much more for the Breyer Committee to consider, but these four suggestions provide a good start. No matter what subjects are eventually pursued, however, public input is really the key. Ultimately, the committee's work cannot succeed unless it becomes something more than a discussion of judges, by judges, conducted exclusively among judges.
JWR contributor Steven Lubet is Professor of Law at Northwestern University and the author, most recently, of Nothing But the Truth: Why Trial Lawyers Don't, Can't, and Shouldn't Have to Tell the Whole Truth . Comment by clicking here.
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© 2001, Steven Lubet