Congress Looks at Creating Judicial Watchdog
RENEE MONTAGNE, host:
House Judiciary Committee Chairman James Sensenbrenner is upping the ante in his campaign to monitor what he sees as a nationwide problem of judicial misconduct.
Last week, the Republican called for the impeachment of a federal judge here in California who is accused of unethical conduct, and last spring he proposed legislation to create a judicial inspector general. It's an idea that is anathema to most federal judges.
NPR Legal Affairs Correspondent Nina Totenberg reports.
NINA TOTENBERG reporting:
Supreme Court Justice Ruth Bader Ginsburg has called the inspector general proposal a scary idea, reminiscent of the way the old Soviet Union operated to target disfavored judges. And Chief Justice John Roberts has privately ridiculed the proposal as a solution in search of a problem.
The Sensenbrenner bill would create an inspector general for the Federal Judiciary similar to the inspectors general who investigate waste, fraud, abuse and ethics violations in most executive agencies.
Representative JAMES SENSENBRENNER (Republican, Wisconsin; Chairman, House Judiciary Committee): The judicial branch of government should be subject to the same scrutiny and the same oversight as agencies in the executive branch.
TOTENBERG: Allegations of judicial misconduct generally fall into three categories. First, the judges have on occasion participated in cases in which they or a family member held a financial interest. Even one share of stock is supposed to trigger automatic disqualification.
Second, the judges have on occasion failed to report all gifts, including paid trips. And third, that the judges charged with reviewing ethical lapses of all kinds have failed in their duty to discipline errant judges.
In 1980, Congress passed a law setting up a mechanism for the Federal Judiciary to police itself. In the '80s, three judges were impeached upon the recommendation of their fellow judges, but two of those impeachments came after federal felony convictions. And some critics charge that lesser violations are being whitewashed.
Before his death, the late Chief Justice William Rehnquist appointed Justice Stephen Breyer to chair a committee that's been investigating whether the system is, in fact, working.
The panel, which has examined some 600 ethics complaints nationwide, reportedly did not find significant violations of financial conflict of interest rules or gift reporting requirements. But according to knowledgeable sources, it did find problems in the way some complaints are handled.
Some, like Congressman Sensenbrenner, believe that tweaking the current system will not be enough. The liberal Community Rights Counsel has documented a dozen ethical lapses among the nation's 1,200 sitting federal judges in the last few years.
Seven involve judges who issued rulings in which they had some financial holdings. The others involve judges who repeatedly failed to report that they'd attended all-expense-paid seminars at plush resorts.
Sensenbrenner, a conservative Republican, sees the need for an independent inspector general, a sort of judicial cop.
Rep. SENSENBRENNER: There has to be some watchdog looking at how the judicial branch of government spends the public money, and whether they're complying with the ethics rules or not.
TOTENBERG: Sensenbrenner's bill would give the chief justice the power to appoint the inspector general and would limit the office's power to investigating, quote, matters pertaining to the judicial branch.
Professor STEPHEN GILLERS (Professor of Law, New York University): It is a terrible idea.
TOTENBERG: NYU law professor Stephen Gillers is a leading legal ethics expert.
Prof. GILLERS: There may be some justifications, but this bill goes way too far.
TOTENBERG: Gillers and other ethics experts say they've seen no serious problem with financial conflicts of interest. The computer system installed in the federal courts to screen financial conflicts works well he says, though there have been some missteps.
Prof. GILLERS: So, on occasion, something gets by the judge. It could be understandable, it could be carelessness; it's not venality.
TOTENBERG: And when it happens, says Gillers, the offended party can move to disqualify the judge, or if it's too late for that, to void the judgment.
Indeed, what galls some judges, including Chief Justice John Roberts, is the fact that Congress has refused to make it easier for judges to convert stock holdings into mutual funds where there is little possibility of a financial conflict of interest.
A federal law allows executive officers like the secretary of treasury, for example, to sell stock, roll it over into a mutual fund and defer tax payment until the mutual fund stock is sold. That's to avoid a huge taxed(ph) in the year the executive official assumes his government job.
But when the late Chief Justice Rehnquist detailed a group of judges, including Roberts, to go to Capitol Hill to see if the same benefit could be afforded judges, the group met with a chilly reception.
Moving onto the subject of expense-paid trips, the Community Rights Council has documented a thousand such junkets by federal judges over the last 15 years, often funded by corporations or organizations with vested interest in litigation. All but a handful of judges, however, report those trips as required by law. On this subject, though, says Professor Gillers, there's a huge disconnect between the judges and the public.
Prof. GILLERS: Judges do not see a problem. They say, look, I'll never change my vote because I go to one of these seminars. For the public, this looks like certain interests, corporate interests, that come before the federal judiciary are finding a roundabout backdoor way to do something really nice for federal judges, something they will appreciate at some level of consciousness.
TOTENBERG: At least, says Professor Gillers, there should be some public reprimand for those judges who fail to meet the legal requirement of publicly reporting the trips.
Prof. GILLERS: It would be very healthy if the disciplinary apparatus in the federal judicial system said something very strong about those failures.
TOTENBERG: Which brings us to that apparatus. Under the 1980 judicial ethics law, complaints are filed with the chief judge of each circuit, and if the chief judge finds a complaint is not frivolous, he or she opens a formal investigation. Final decisions are reviewed by a judicial council of judges in each circuit. But there've been some complaints that this is, in essence, a buddy system.
One recent case in California has bounced up and down the system for so long without action that Chairman Sensenbrenner, last week, introduced a resolution of impeachment against the judge who's accused of abusing his judicial power to aid a litigant.
It is in this area that the Breyer Committee, due to report in September, is expected to recommend changes. One possibility would be to refer a complaint about a judge to a different circuit than the one he sits in so that his closest colleagues are not evaluating the complaint, dispelling the aura of favoritism.
So why not an independent inspector general? Critics say that the position would become a power center in itself and would inevitably pose a threat to judicial independence, especially under Congressman Sensenbrenner's broadly worded law. Not so, he says.
Rep. SENSENBRENNER: There's no issue of the separation of powers in the inspector general proposal. The independent inspector general will not have any authority or jurisdiction over the substance of a judge's opinion.
TOTENBERG: But judges fear an inspector general would end up targeting those who make unpopular rulings, and critics see the proposal as a sort of surrogate attack on the courts. Professor Gillers.
Prof. GILLERS: I think it's a cheap shot. The problems that it means to address are simply not there. So it's a solution that is overstated, inarticulately drafted, in search of a problem that doesn't exist.
TOTENBERG: Nina Totenberg, NPR News, Washington.
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