Today, Community Rights Counsel (CRC) wrote
Supreme Court Justice Stephen Breyer calling for reforms to
the judiciary's flawed system for reviewing ethical complaints.
The flaws are illustrated by a May 23rd opinion
by Chief Judge James Loken of the Eighth Circuit Court of
Appeals, which refuses to force Chief Judge Danny Boggs of
the Sixth Circuit to resign from the board of directors of
Foundation for Research on Economics and the Environment (FREE),
even after three other federal judges resigned from FREE's
Board last month. Justice Breyer is chairing a Commission
formed by Chief Justice Rehnquist last year to improve the
functioning of the ethics complaint process.
According to CRC's Executive Director Doug Kendall: "This
is why the Breyer Commission was formed. Judge Loken applied
the wrong legal standard to reach the wrong result."
A CRC investigation released last year provided startling
evidence of the ethical issues raised by judicial service
on FREE's board. Based on the evidence collected in this report,
Tainted Justice: How Private Judicial Trips Undermine Public
Trust in the Federal Judiciary, CRC filed ethics petitions
against Chief Judge Douglas Ginsburg of the DC Circuit, Judge
Jane Roth of the Third Circuit, Judge Andre Davis of the Maryland-based
U.S. District Court, and Judge Boggs. Judges Ginsburg, Roth,
and Davis resigned from FREE's Board last month in response
to these petitions.
Judge Boggs refused to resign, and Judge Loken's opinion
illustrates that these ethics complaints almost never result
in any action by a reviewing judge to address the alleged
misconduct. Between September 1998 and September 2003, 3,673
complaints against judges were closed by the judiciary with
action taken against a judge in only six cases, an average
of one wrist slap for every 600 complaints filed. Little wonder
members of Congress of both political parties have seriously
questioned the ability of the judicial branch to police its
Two of the nation's leading ethics experts have confirmed
merits of CRC's ethics petitions, with NYU's Stephen Gillers
stating that service on FREE's board "compromises the
public's view of the impartiality of panels on which [the
judge] sits in every case of interest to FREE's members."
But according to Judge Loken, service on FREE's board is not
the type of "serious judicial transgressions" the
ethics petitions are designed to combat. Kendall responds,
"the 'serious judicial transgression' standard is an
eye-of-the-beholder test, and statistics demonstrate the judicial
eye never beholds a sufficiently serious violation. The Breyer
panel clearly has its work cut out for it."