WE ALL HAVE A STAKE IN THE RULE
OF LAW AND WE CAN ALL DO OUR PART TO STRENGTHEN IT
The President of the American Bar Association (ABA) states that we all have a stake in the rule of law and that everyone can do their part to strengthen it.
Law Day 2008 has a catalog of ideas and paraphernalia designed by the ABA to help celebrate Law Day.
It was first proclaimed in 1958 by President Eisenhower and Law day 2008 marked the 50th anniversary of a “day of national dedication to the principle of government under law.”
Since the federal judiciary is endowed with great powers, it is fitting to use the occasion of Law Day to review the checks and balances that exist to deal with the abuse of those powers.
If one has been treated unfairly by a federal judge and can show that he or she had a conflict of interest, exhibited prejudice, had been influenced by a bribe, disregarded the law, or had ignored, misrepresented or altered material evidence to one’s detriment, one is free is file a complaint of judicial misconduct against that judge. Unfortunately, under the rules established unilaterally by the judicial bureaucracy, the compliant is likely to go nowhere.
On March 11, 2008 the Judicial Conference of the US adopted a new set of rules for processing misconduct complaints against federal judges. This conference is head by Chief Justice John Roberts. This conference is the policy-making arm of the federal judiciary. Its rules governing federal judicial discipline have drawn much criticism for citizen watchdog groups.
At present, the doctrine of judicial immunity, giving broad protection to judges, is supported by two pillars judges have erected for themselves: The first is exemplified in a 1978 Supreme Court ruling in Stump v. Sparkman: A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of this authority. This ruling insures that judges cannot be sued for error committed on the bench.
The second pillar is the set of rules implemented by the Judicial Conference pursuant to the Judicial Conduct and Disability Act of 1980, which regulates federal judicial discipline and complaints filed by litigants against federal judges. These rules generally provide judges the means to dismiss complaints against them.
The public has been very vocal in its dissatisfaction with the way judges deal with complaints against their colleagues. In 2004, in response to similar concerns raised by Congress, the late Chief Justice William Rehnquist appointed a committee of judges to gather data on how complaints against judges are handled.
The Breyer Committee Report was completed in 2006 and concluded that very little needed to be done in the way the federal judges police themselves. In July 2007 Breyer’s Committee on Judicial Conduct and Disability released its “Draft Rules Governing Judicial Conduct and Disability Proceedings” for public comment. These draft rules, now adopted, have become the subject of heated controversy.
According to data compiled by Dr. Richard Cordero from figures published by the Administrative Office of the US Courts, of the reported 7,462 judicial misconduct complaints filed during the 1997-2006 period, 99.9% were dismissed with little or no explanation regardless of merit [confidentiality rules prevent the public and members of congress from inspecting these complaints].
The new Rules Governing Judicial Conduct and Disability will now render meaningless any complaint alleging that important evidence was ignored or misrepresented, or that a judicial outcome was invalid because of bias or conflict of interest. Such allegations would be considered “merits-related” and dismissed without further investigation.
The Center for Judicial Accountability, a NY-based nonprofit organization that advocates for effective and meaningful judicial selection and discipline, attempted to dissuade the Judicial Conference from adopting rules that provide for such automatic dismissals. They claim existing law does not require automatic exclusion of “merits-related” complaints. Their recommendations, made directly to Chief Justice Roberts, had little effect.
There is an inherent conflict of interest when judges both police themselves and dictate the rules that govern how they can be disciplined. This can lead to abuses of judicial authority. Incidents to such abuse have a spawned a nationwide, grass-roots movement calling for the creation of an alternate independent disciplinary mechanism to review judicial misconduct.
Public disquietude over the performance of judicial self-discipline has attracted the attention of lawmakers. This revived concern has the potential a separation of powers conflict between the judicial and legislative branches of government and lead to congressional hearings.
In 2006, Representative Sensenbrenner from Wisconsin, then House Judiciary Committee Chairman, and Senator Grassley from Iowa, a member of the Senate Judiciary Committee, introduced legislation that would establish an independent Inspector General for the Judicial Branch. These bills, reintroduced in 2007 and strongly opposed by the ABA, were never brought to a vote. However the concept of an extrajudicial disciplinary mechanism has raised a great deal of interest among legislators.
The US Constitution clearly gives Congress the power to regulate the functioning of the courts and define what constitutes “good behavior” of judges. It also has endowed Congress with the power the “ordain and establish” all lower courts.
Implied in the constitutional establishment of the courts is the establishment of the rules and regulations that define their structure and operation.
The question now is whether Congress will be able to wrest from the judiciary the power it has gradually usurped for policing itself.
Once a critical mass of disaffected citizens applies sufficient pressure upon its representatives, Congress may suddenly recognize that it not only has the constitutional authority, but also a mandate from the people to restructure one of its own creation –a creation that has become corrupted by self-serving regulation and provincialism that it has lost sight of its purpose to serve the public.
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