Thoughts on the Law Addressing Bad Federal Judges:
Self-Policing Isn't Working, But Is There a Good Alternative?

Federal judges and federal courts typically reflect a very high standard of legal practice. The pruning process of selecting men and women who must be confirmed by the U.S. Senate -- where those who are clearly unqualified are rejected before they ever get to the bench -- has helped to maintain the highest standards at the federal level.

But with almost one thousand federal judges on the bench - typically underpaid and overworked -- it is not surprising there are a few blemished characters. The criminal law can effectively address the very rare judge who is truly corrupt. But what of judges who are incompetent (sometimes from mental decrepitude), lazy, dictatorial if not nasty in conducting the business of their small empire, or conspicuously biased (regarding gender, racial, ethnic, or sexual orientation)?

What - if anything - can be done about such judges, consistent with the constitutional guarantee of an independent federal judiciary? Under our Constitution, impeaching judges is extremely difficult. And in practice, the federal statute that attempts to address the situation of judges who are bad - but not corrupt - has been less than effective.

For this reason, the Chief Justice of the United States has requested that his colleague, Justice Stephen Breyer -- along with four other federal judges and a top Rehnquist administrative assistant -- undertake a study of the matter. Specifically, Justice Breyer has been asked "to evaluate how the federal judicial system has implemented the Judicial Conduct and Disability Act of 1980."

But don't hold your breath waiting for revelations. If past studies of this subject are any indication, the public will not really be told very much about how the federal judiciary currently deals with its dirty linen. But constructive recommendations about change may be offered - and they should be welcome, for this is a problem that needs to be addressed.

Impeachment and the "Good Behavior of the Federal Judiciary"

To understand the situation of federal judges, it's important first to set forth some constitutional background. In designing our federal system, the founders sought to create an independent judiciary - one that did not bow to the power of the Executive or the Legislature, a truly coequal third branch. Alexander Hamilton famously expressed this point in Federalist 78.

Toward this end, once confirmed by the Senate, a federal judge is effectively tenured for life, or as Article III of the Constitution sets forth, they "hold their offices during good behavior." In addition, also under Article III, judges' compensation cannot be reduced while they are on the bench. Good behavior, as Hamilton made clear, is "to secure a steady, upright, and impartial administration of the laws."

Judges can only be removed because of their "Treason, Bribery or other high Crimes and Misdemeanors." Only a handful of federal judges have ever been impeached under this high standard. And Congress's failure to impeach and convict Chief Justice Samuel Chase made clear that mere disagreement with a judge's decisions, or judicial philosophy, is not grounds for removal.

The Constitution left a void as to how to address bad federal judges whose behavior does not rise to the level of criminal prosecution or impeachment. Since then, a patchwork of practice has tried, and continues to try, to fill the void. But it hasn't been very adept at doing so.

The Advent of Judicial Councils

The Chairman of the Judiciary Committee of the House of Representatives, James Sensenbrenner, seconded the Chief Justice's move to initiate the Breyer panel study. In doing so, Sensenbrenner issued a statement on the problem.

Sensenbrenner noted, "The 1980 Act, which was amended during the 107th Congress, is based on a self-governing construct that allows the judicial branch large deference to police itself regarding matters of judicial misconduct and discipline. This system worked quite well during the 1980's. . . . Since then, however, this process has not worked as well, with some complaints being dismissed out of hand by the judicial branch without any investigation." (Emphasis added.)

The mechanism that is not working well now was initially fashioned in the late 1930s with the emergence of the modern judiciary - with its ever increasing criminal and civil caseload, and the growth of additional judgeships. At that time, Congress created "judicial councils" in each of the federal circuits which cover the nation. (Today, there are twelve numbered circuits, plus the District of Columbia circuit.)

Judicial councils are composed of circuit judges, and they proceed under the direction of the senior circuit judge. Their purpose is to ensure the proper administration of court business within the circuit (including both the appellate-level circuit courts and the trial-level district courts).

In time, Congress gave each judicial council express authority to issue formal "orders for the effective and expeditious administration of the business of the courts within its circuit." These orders become the rules of the circuit. Judicial councils were later authorized to use this power in disciplinary matters as well, with the enactment of the Judicial Conduct and Disability Act of 1980 - the statute Rehnquist has asked Breyer to review.

Appropriately, after two and a half decades of experience, the Chief Justice has raised the question of how well this law actually works.

The Workings of the Judicial Conduct And Disability Act of 1980

Anyone can file a complaint for judicial misconduct with the clerk of the federal court of appeals for the circuit in which a given judge sits.

When the complaint is received, the chief judge of the circuit reviews it. If he or she can resolve the matter, it ends there. If not, a special committee is formed to investigate the complaint.

If this special committee finds the complaint to have merit, it reports to the judicial council of the circuit. The judicial council can then impose a number of remedies: censure, reprimand, temporary suspension of the judge, and transferring cases on the judge's docket to others on the court.

Finally, if an impeachable offensive is uncovered, the judicial council reports its findings to the Judicial Conference of the United States (which has administrative jurisdiction over all the federal courts). In turn, the Judicial Conference can submit the matter to the U.S. House of Representatives for impeachment proceedings.

Why the Act's Procedures Have Been Ineffective: A Case In Point

While this is all well and good, as many federal practitioners know, it really doesn't root out the bad judges. The process has worked for corrupt judges and some conspicuously egregious misconduct. But the run-of-the-mill bad judge can escape its reach.

Thus, the little robed czar or czarina who rules his or her courtroom empire with justice only for the chosen few, almost always remains immune. And unfortunately, even those who are subjected to the law escape public censure and condemnation, even of their peers.

Consider the following case: Harvard Law Professor Alan Dershowitz wrote the well-known book Reversal Of Fortune, about his work on the Claus von Bulow wife-murder case. When talking about his book, Dershowitz publicly commented that to deal with Rhode Island judges it was necessary to have a "local yokel" to deal with them behind the scenes.

Whether true or false, Dershowitz's intemperate remark was offensive. In response, former Rhode Island Superior Court Judge Ronald R. Lagueux told the Providence Journal that he'd never let Dershowitiz practice in his courtroom again. According to the Journal, Lagueux said, "There's an old saying that you don't get into a urinating contest with a skunk."

Judge Lagueux was soon appointed to the federal bench. A former Dershowitz student and friend appeared before him - and asked the judge to recuse himself. But Judge Judge Lagueux refused, repeating his ban on Dershowitz's own appearances from the bench, and in a written ruling.

Dershowitz filed a complaint under the Judicial Conduct and Disability Act of 1980. As a result, the judicial council of the First Circuit censured Judge Lagueux. This step was praiseworthy but rare, for in fact, most complaints are not acted on.

More strikingly, following standard procedures under the 1980 Act, the judicial council ordered that both the complaint and the censure be kept secret. The obvious question is: What good is a censure if no one knows about it? Indeed, Dershowitz was told he would face a contempt of court citation if he disclosed either his complaint or the censure.

Nonetheless, the story leaked - and was reported in a July 14, 1989 New York Times article. But if it had not, the complaint and censure would have remained entirely secret. And in this case, escaping the pitiless spotlight of publicity means, in effect, escaping any sanction at all.

Evidence Reveals Complaints About Judges Are Virtually Ignored

Dershowitz was lucky, in a way, that he was listened to at all. As Chairman Sensenbrenner's committee learned during the last Congress (when it tweaked the misconduct law), virtually no such complaints are acted on.

The subcommittee of the House Judiciary Committee examining the law was told of one study from "fiscal years 1996 and 1997" that showed that "more than 1000 formal complaints were filed against federal judges nationwide. The chief judges decided that not one of these cases required official discipline." In addition, "[i]n more that 450 cases, complainants appealed the dismissal of their complaint to the judicial council of an appellate court. These councils rejected every appeal."

These statistics were deeply disturbing. As expert witness Douglas Kendall explained to the subcommittee, while no doubt some of the complaints were frivolous, "given the evidence that suggest that ethical transgressions do occur with some regularity, it strains credibility to suggest that not one of over 1,000 formal complaints warranted any official disciplinary action." (Emphasis added.) Indeed, Kendall himself provided devastating evidence about "junkets for judges" - so-called educational retreats at plush resorts to instruct judges in the law (the way the sponsor wants the judge to understand the law).

Since it is futile to file a complaint, few attorneys do so. They anticipate little benefit - and a potentially devastating cost.

Attorneys understand that the judge will be shown their complaint and given an opportunity to respond -- all in secret, of course. Thus, they reasonably fear that, if they appear again before the judge, they will be punished for their complaint in some subtle or not-so-subtle way.

Complaint Proceedings Should Be Open, Not Secret

Since federal judges are appointed for life, complaints of their behavior should be open, and sanctions should be disclosed. The reason cited for secrecy is the need to preserve the federal judiciary's independence. But as noted above, the Constitution already does that quite effectively. So the independence of the judiciary actually cuts the other way: With judges effectively immune from impeaching, and serving for life, they ought to be able to withstand a little public scrutiny.

Ironically, more vulnerable and accountable state judges - who unlike federal judges usually are elected, with limited terms -- typically face open complaint procedures. Over thirty states - a healthy majority -- have open disciplinary proceedings for judges.

The result has been enhanced public confidence in the state judiciary. Hopefully, the Breyer Committee will look at the successes of the states in restoring confidence through openness. After all, federal judges' traditional prestige may be waning. With conservatives seeking to pack the federal judiciary it is politicizing the appointment process, and the public has developed a growing and understandable skepticism about the impartiality of the federal bench.

In the end, an imperial (and unchecked) judiciary is as troublesome as an imperial presidency. The high bar for impeachment is necessary to make sure the federal judiciary is a coequal branch of government.

But to further protect federal judges from any scrutiny or sanction, as the 1980 Act does, goes much too far. Being part of a democracy means openness and accountability - not secrecy and doubt - as much so for the judiciary, as for other branches.

Alexander Hamilton called the judicial branch the weakest. Its strength and power stems from its good judgment, for it must rely on others to enforce its rulings.

Not only would sunlight on their conduct proceedings be a disinfectant, it is the only possible disinfectant - for impeachment is rightly near-impossible, so openness in dealing with misconduct will serve to keep the federal judiciary a viable and vital part of our democracy.

And when Justice Breyer finishes with the lower courts, he should turn his attention to his own court, which is not covered by the 1980 disability and misconduct law.