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
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
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
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
Anyone call 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
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
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 doon 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
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
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
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 typically are elected, with limited
terms -- typically face open complaint procedures. Over thirty
states - a healthy majority -- have open disciplinary proceedings
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.
John W. Dean, a FindLaw columnist, is a former counsel to