Judicial Discipline to Be Examined
Rehnquist Names Panel in Response to Ethics Controversies
By Mike Allen and Brian Faler
Washington Post
May 26, 2004
Chief Justice William H. Rehnquist has named a high-level panel to investigate the federal courts' handling of judicial misconduct, court officials said yesterday.
Rehnquist named the committee with a statement that acknowledged criticism by Congress of judicial handling of ethics issues. Justice Stephen G. Breyer will chair the six-member panel, according to a statement published this week in the newsletter of the federal courts. The committee will hold its first meeting next month in Washington.
"There has been some recent criticism from Congress about the way in which the Judicial Conduct and Disability Act of 1980 is being implemented, and I decided that the best way to see if there are any real problems is to have a committee look into it," Rehnquist said in the statement.
David Sellers, a spokesman for the Administrative Office of the U.S. Courts, said the panel was created in response to comments by House Judiciary Committee Chairman F. James Sensenbrenner Jr. (R-Wis.), who told the U.S. Judicial Conference on March 16 that Congress "will begin assessing whether the disciplinary authority delegated to the judiciary has been responsibly exercised and ought to continue."
Sensenbrenner complained at the conference, which Rehnquist attended, that another judge had "whitewashed" a complaint the Wisconsin Republican had filed against Judge Richard D. Cudahy of the U.S. Court of Appeals for the 7th Circuit, based in Chicago.
Separately, Supreme Court Justice Antonin Scalia became the butt of editorial cartoons and late-
night talk show hosts after he accepted a flight on Air Force Two and went hunting with Vice President Cheney in Louisiana in January, three weeks after the high court agreed to hear a challenge to the secrecy maintained by a White House energy policy task force that the vice president headed.
Scalia said in a 21-page memo published in April that he had done nothing wrong and would not recuse, or disqualify, himself from the case. "If it is reasonable to think that a Supreme Court justice can be bought so cheap, the nation is in deeper trouble than I had imagined," he wrote.
Several legal scholars said Rehnquist's panel has the potential to increase the accountability of the most secretive branch of government. The creation of the panel was first reported by the Associated Press.
The act of Congress cited by Rehnquist defines judicial misconduct and articulates the standards for judges to use when deciding whether to recuse themselves from a case in which they, a spouse or a child might have, or be seen as having, an interest. That can include a financial interest or membership on a board involved in the case. The act applies to lower federal courts and does not mention the Supreme Court.
Ronald D. Rotunda, an authority on judicial ethics at George Mason University, said judges "need brighter lines, and the prestige of the court is hurt when people are able to attack judges, citing statutes that have very open-ended and vague meanings."
"The federal courts need to show they are concerned about these incidents and are not above the law," he said. "Right now, you have fuzzy and formless rules that invite third parties to accuse the justices of unethical conduct, and encourage litigation and second-guessing of decisions."
In addition to Breyer, the other five members are: Judge J. Harvie Wilkinson III, former chief judge of the U.S. Court of Appeals for the 4th Circuit, based in Richmond; Judge Pasco M. Bowman II, former chief judge of the U.S. Court of Appeals for the 8th Circuit, based in St. Louis; Judge D. Brock Hornby, former chief judge of the U.S. District Court for the District of Maine; Judge Sarah Evans Barker, former chief judge of the U.S. District Court for the Southern District of Indiana; and Sally M. Rider, the chief justice's administrative assistant.
Rehnquist's statement gave little information about the committee's mission, which is "to evaluate how the federal judicial system is dealing with judicial misbehavior and disability."
The announcement said the last comprehensive look into the judicial discipline system was performed by the National Commission on Judicial Discipline and Removal, which issued a report in 1993. The committee, which will have help from the staff of the federal courts, is to report to Rehnquist.
Staff writers Carol D. Leonnig,
Helen Dewar and Jerry Markon contributed to this report.
http://www.washingtonpost.com/ac2/wp-dyn/A55779-2004May25?language=printer
Judicial Conduct Commission Created
by Terry Phillips, correspondent
Family News
June 2, 2004
U.S. Supreme Court Chief Justice William Rehnquist says it's time to review what's going on in America's court system.
Is there anything you can do when judges start legislating from the bench? Yes — you can work to remove them. A new commission was created last week to examine a law that may help citizens in that effort.
U.S. Supreme Court Chief Justice William Rehnquist announced that the commission, which will be headed by Justice Stephen Breyer, will look into the implementation of the Judicial Conduct and Disability Act of 1980.
While the mainstream media likes to say the newly established commission was created to explore questions about a case involving Justice Antonin Scalia and his hunting associate and friend, Vice President Dick Cheney, that's not strictly accurate, according to Douglas Kmiec, a professor of constitutional law at Pepperdine University.
"Mr. Cheney was named, not because he has a personal stake or a financial stake in the case," Kmiec explained, "but because the powers of his office are implicated."
In fact, the commission will investigate all levels of the federal courts — and how they handle judicial misconduct.
"What the task force is going to
inquire (about) is whether these lesser problems have been adequately
investigated and whether the results of their investigations have been made
public to restore confidence in the bench," Kmiec said.
The commission will have its work cut out for it, though, with regard to
restoring public confidence in the judiciary. Tom Minnery, vice president of
government and public policy at Focus on the Family, said it often takes the
authentic threat of impeachment or being voted out of office before judges
respond.
"The mere effort," Minnery said, "undoubtedly will provide good pressure for judges to think twice about social reengineering of our entire society."
For that reason, Focus on the Family will help provide voters guides on judges and their records for this year's summer and fall elections.
http://www.family.org/cforum/fnif/news/a0032320.cfm
When Judges Investigate Judges
By Steven Luber
Chicago Tribune
June 03, 2004
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.
Steven Lubet, is a law professor at Northwestern University
Rehnquist Panel Launches Judicial Review
June 11, 2004
The review will not include criticism of members of the Supreme Court itself. Rehnquist has directed the six-member committee to review only issues related to a 1980 federal law that allows punishments of federal judges who engage in "conduct prejudicial to the effective and expeditious administration of the business of the courts."
Some critics, however, complained that the panel's mandate is not broad enough.
Sen. Patrick Leahy, D-Vt., told the panel's leader, Justice Stephen Breyer, in a letter late last month that there were "significant judicial ethics concerns" about the Supreme Court that should be dealt with at the same time.
The panel, in the interest of protecting the public's confidence in the court, should consider whether Supreme Court justices should follow policies like those in the 1980 law, Leahy said.
Breyer did not address Leahy's request in a statement issued after the group's first meeting at the Supreme Court on Thursday. He said that Rehnquist's assignment for the committee "is narrow, but important" and will likely take from 18 months to two years. They will look at how courts handled substantive complaints in recent years, he said.
He said that confidence in courts partly "depends upon the public's understanding that effective complaint procedures and remedies are available in instances of misconduct or disability."
The naming of the panel, which will report back to Rehnquist, followed criticism from House Judiciary Committee Chairman F. James Sensenbrenner, R-Wis., that judges are not adequately disciplining their colleagues, and in fact may be covering up for them.
The focus of separate criticism of Supreme Court conduct and ethical responsibilities has been on Justice Antonin Scalia. Scalia refused to step aside from hearing a case involving his good friend, Vice President Dick Cheney, after the two took a hunting trip to Louisiana in January.
The vacation came three weeks after the court had agreed to hear Cheney's appeal in the case about the closed-door workings of an energy task force he chaired. The high court has not yet ruled in the case.
Supreme Court justices decide for themselves whether they can impartially hear appeals, and their decisions are final.
Stephen Gillers, a New York University law professor and ethics expert, said Rehnquist would be smart to address the broader questions as well, or Congress may undertake them.
"There's been a lot of disquiet about judicial ethics," he said. "The Scalia-Cheney hunting trip has really brought this issue front and center ... sparked public concern in an issue which is otherwise way below the radar."
Gillers said a larger group, with a variety of members, could be assembled.
Besides Breyer, the panel named by Rehnquist includes three judges appointed to the bench by President Reagan, a fourth judge appointed by the first President Bush, and Rehnquist's top aide.
Their next meeting will be in the fall, and Breyer said they will try to do at least some of their work in public
Supreme Court Justice Says Tough Decisions Faced in Judges' Ethics
Gina Holland
The Associated Press
August 9, 2004
Supreme Court Justice Stephen Breyer said Friday that legal leaders must deal
with serious questions about judges' ethics without getting distracted by jokes
about ducks.
"I wouldn't pay attention to newspapers," he said in response to a request for
advice for a commission that is rewriting ethics rules for judges.
Breyer's court has some experience with newspaper coverage.
Dozens of newspapers criticized Justice Antonin Scalia for taking a duck hunting
vacation with Vice President Dick Cheney in January while the court was
considering Cheney's appeal in a privacy case. Scalia refused to bow out of the
case and sided with Cheney in a ruling that protected the Bush administration
from having to reveal details of the vice president's private energy task force
meetings.
The duck-hunting Scalia became the butt of jokes on late-night television.
Numerous editorial boards complained about the Supreme Court's policy of
allowing individual justices to decide for themselves when their impartiality
can be questioned.
Breyer told American Bar Association leaders meeting in Atlanta that with the
mention of "the word duck ... everybody thinks that's funny and so forth. But
when you go into it, it's a very difficult ethical question."
Breyer said each Supreme Court justice has a duty to decide when to hear cases.
Breyer, who joined the court 10 years ago this month, routinely recuses himself
in cases that were handled by his brother, a federal judge in California.
Ellen Rosenblum, a circuit judge in Portland, Ore., had told Breyer that an ABA
commission was "struggling quite a bit" in spelling out appropriate behavior for
judges.
Breyer said he is busy with his own assignment, from Chief Justice William H.
Rehnquist, overseeing a committee that is reviewing the impact of a 1980 federal
law that allows punishment of federal judges who engage in "conduct prejudicial
to the effective and expeditious administration of the business of the courts."
http://www.law.com/jsp/article.jsp?id=1090180304699