[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]
JUDICIAL TRANSPARENCY AND ETHICS ENHANCEMENT ACT OF 2006
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME, TERRORISM,
AND HOMELAND SECURITY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
ON
H.R. 5219
__________
JUNE 29, 2006
__________
Serial No. 109-124
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
______
U.S. GOVERNMENT PRINTING OFFICE
28-408 WASHINGTON : 2006
_____________________________________________________________________________
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COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah MAXINE WATERS, California
SPENCER BACHUS, Alabama MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana ROBERT WEXLER, Florida
MARK GREEN, Wisconsin ANTHONY D. WEINER, New York
RIC KELLER, Florida ADAM B. SCHIFF, California
DARRELL ISSA, California LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona CHRIS VAN HOLLEN, Maryland
MIKE PENCE, Indiana DEBBIE WASSERMAN SCHULTZ, Florida
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
Philip G. Kiko, General Counsel-Chief of Staff
Perry H. Apelbaum, Minority Chief Counsel
------
Subcommittee on Crime, Terrorism, and Homeland Security
HOWARD COBLE, North Carolina, Chairman
DANIEL E. LUNGREN, California ROBERT C. SCOTT, Virginia
MARK GREEN, Wisconsin SHEILA JACKSON LEE, Texas
TOM FEENEY, Florida MAXINE WATERS, California
STEVE CHABOT, Ohio MARTIN T. MEEHAN, Massachusetts
RIC KELLER, Florida WILLIAM D. DELAHUNT, Massachusetts
JEFF FLAKE, Arizona ANTHONY D. WEINER, New York
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
LOUIE GOHMERT, Texas
Michael Volkov, Chief Counsel
David Brink, Counsel
Caroline Lynch, Counsel
Jason Cervenak, Full Committee Counsel
Bobby Vassar, Minority Counsel
C O N T E N T S
----------
JUNE 29, 2006
OPENING STATEMENT
Page
The Honorable Howard Coble, a Representative in Congress from the
State of North Carolina, and Chairman, Subcommittee on Crime,
Terrorism, and Homeland Security............................... 5
The Honorable Robert C. Scott, a Representative in Congress from
the State of Virginia, and Ranking Member, Subcommittee on
Crime, Terrorism, and Homeland Security........................ 6
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 7
WITNESSES
The Honorable Charles Grassley, a U.S. Senator from the State of
Iowa
Oral Testimony................................................. 1
Prepared Statement............................................. 3
Mr. Ronald Rotunda, Professor of Law, George Mason University
School of Law
Oral Testimony................................................. 10
Prepared Statement............................................. 13
Mr. Arthur Hellman, Professor of Law, University of Pittsburgh
School of Law
Oral Testimony................................................. 29
Prepared Statement............................................. 31
Mr. Charles Geyh, Professor of Law, Indiana University School of
Law at Bloomington
Oral Testimony................................................. 46
Prepared Statement............................................. 48
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Robert C. Scott, a
Representative in Congress from the State of Virginia, and
Ranking Member, Subcommittee on Crime, Terrorism, and Homeland
Security....................................................... 59
Prepared Statement of the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan, and
Ranking Member, Committee on the Judiciary..................... 60
Letter to the Honorable Howard Coble from Leonidas Ralph Mecham,
Secretary, Judicial Conference of the United States............ 61
JUDICIAL TRANSPARENCY AND ETHICS ENHANCEMENT ACT OF 2006
----------
THURSDAY, JUNE 29, 2006
House of Representatives,
Subcommittee on Crime, Terrorism,
and Homeland Security
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to call, at 11:37 a.m., in
Room 2141, Rayburn House Office Building, the Honorable Howard
Coble (Chairman of the Subcommittee) presiding.
Mr. Coble. Good morning, ladies and gentlemen. The
Committee will come to order.
To begin with, Mr. Scott and I will apologize for our
delay. But best-laid plans of mice and men, you know, oft times
go awry, and we had a vote.
And, Senator Grassley, the distinguished gentleman from
Iowa, I am told that you are on a short leash.
So, Bobby, with your consent, and with the consent of the
others, I am going to violate the rules of protocol, Senator,
and permit you to give your 5-minute testimony, and then Mr.
Scott and I will give our respective opening statements, and we
will hear from the other three members, if that is in agreement
with everyone.
I am told you are managing a bill on the Senate floor now,
Senator. So why don't you proceed and go for 5 minutes,
Senator? Then we will resume regular order.
TESTIMONY OF THE HONORABLE CHARLES GRASSLEY,
A U.S. SENATOR FROM THE STATE OF IOWA
Senator Grassley. Okay. Mr. Chairman, the legislation is
the Oman free trade agreement that starts at 11:30, so I accept
the opportunity that you have given me to be here to discuss
H.R. 5219. I introduced a companion bill in the House, and I am
hopeful that we can move forward with this legislation in both
bodies.
The Federal judiciary is supposed to be engaged in self-
regulation of ethics issues, but ever since I chaired the
Senate Judiciary Subcommittee on Courts in the early 1990's,
concerns have been raised about compliance with judicial ethics
rules and whether the judiciary can adequately police itself.
Concerns about alleged ethics violations, conflicts of
interest, and appearances of impropriety continue to be
reported in the press.
Now, I don't know whether or not these lapses were
intended. I don't know whether these instances were violations
of judicial ethics or codes of conduct. But it doesn't look
like the judiciary is acting fast enough to show us that judges
are crossing all their t's and dotting all their i's or that
the rules work as well as they should.
These allegations don't instill much confidence in me, and
I am sure they don't instill much confidence in the American
people. I know that mistakes happen. But there are enough
questions out there for me to conclude that some sort of action
is necessary.
So in my mind, the judiciary hasn't done enough to reassure
the public that it is doing all it can to address perceived
cracks in the system. The bottom line is that no one is above
the law. That is presidents or Members of Congress. And our
judges aren't either.
And I know they know that. History shows us that the
institution of inspector general has been crucial in detecting,
exposing and deterring problems within Government. The job of
inspector general is to be the first line of defense against
fraud, waste and abuse.
In collaboration with whistleblowers, inspectors general
have been extremely effective in efforts to expose and correct
wrongs. That is why, during my 30 years on Capitol Hill, I have
worked hard to strengthen the oversight role of inspectors
general.
I rely on I.G.s and whistleblowers to ensure that our tax
dollars are spent according to the letter and spirit of the
law. And inspector general is just the right kind of medicine
that the Federal judiciary needs to ensure that it is complying
with every ethic rule.
An independent I.G., one with integrity and courage, will
help root out waste, fraud and abuse. And the reality is that
if we establish internal controls, those controls can help make
sure that these problems don't ever happen.
Now, I know that some people think that there is no need
for a judiciary I.G. They believe that the current system of
self-policing is adequate. Some believe that they can just
legislate certain rules for the judiciary and that that is
going to fix the problem.
Legislating is one thing. Ensuring accountability is quite
another. The judiciary's current self-policing system is just
not up to snuff. There are too many questions about how
conflicts and financial interests are reported and how recusal
lists are compiled and kept up to date.
There are too many questions as to whether the judiciary's
current policy, which I understand is not uniform throughout
the court system itself, is as effective as it should be.
Transparency can only make the system better and make our
judges more accountable to the people.
But there isn't a lot of transparency in our current
system. I agree with some of my colleagues that one way to
ensure that ethics are being followed is to allow more
transparency with respect to judges' financial holdings and
potential conflicts.
Improved access to judges' financial information as well as
recusal lists will promote transparency and check the
judiciary. But beyond that, an independent office of inspector
general can do a lot to keep the Federal judiciary on its toes
and up to par with standards as expected.
And the proof is in the pudding. The institution of I.G. in
various agencies has significantly increased accountability.
Based on their oversight role as well as oversight
activities by Congress and the Government Accountability
Office, many agencies have improved internally and have
prevented more waste, fraud and abuse from happening.
An inspector general is a simple, common-sense internal
control and check on internal impropriety. An internal watchdog
also acts as a deterrent for improper activity.
Further, an inspector general's office can do a better job
when it has the cooperation of employees who aren't afraid to
raise concerns, so that brings about the necessity of
strengthening whistleblowers' positions and keeping the public
trust.
They step forward, they put their careers and reputations
on the line, to just do one thing, to commit truth. And they
deserve not to be retaliated against. Providing whistleblower
protections to judicial branch employees will help our
judiciary function better.
The bill before you is a straightforward bill and I won't
go into the details of that, but it is going to ensure a fair
and independent judiciary as a critical aspect of our
constitutional system of checks and balances and to make sure
that they do their job right.
Judges are supposed to maintain an appearance of
impartiality. They are supposed to be free from conflicts of
interest. And an independent watchdog for the Federal judiciary
will help judges comply with all of these requirements.
Whistleblower protection for that branch employees will
help keep the judiciary accountable. This bill will not only
ensure continued public confidence in our Federal judiciary and
keep them beyond reproach, it will strengthen our judicial
branch.
So I thank you, Chairman Coble, for the opportunity to be
before you. And since I shortcut some of my statements, I would
like to have the entire statement put into the record as
printed.
[The prepared statement of Mr. Grassley follows:]
Prepared Statement of the Honorable Chuck Grassley, a U.S. Senator
from the State of Iowa
Chairman Coble, it's a pleasure for me to be here today to discuss
HR 5219, the Judicial Transparency and Ethics Enhancement Act of 2006.
I introduced the companion bill in the Senate. I'm hopeful we can move
forward with this legislation, because it'll go a long way in helping
restore the American people's trust in our judicial system.
The federal judiciary is supposed to engage in self regulation on
ethics issues. But ever since I chaired the Senate Judiciary
Subcommittee on Administrative Oversight and the Courts in the early
1990s, concerns have been raised about compliance with the judicial
ethics rules and whether the judiciary can adequately police itself on
these matters. Concerns about alleged ethics violations, conflicts of
interests, and appearances of impropriety by judges continue to be
reported by the press.
Now, I don't know whether or not these lapses were intentional. I
don't know whether these instances were violations of the judicial
ethics rules, the ethics statute, or the judicial code of conduct. But
it doesn't look like the judiciary is acting fast enough to show us
that judges are crossing all their ``T's and dotting all their ``I's,
or that the rules work as well as they should. I'm sorry to say that
these allegations don't instill much confidence in me, and I'm sure
that they don't instill much confidence in the American people. I know
that mistakes happen, but there are enough questions out there for me
to conclude that some sort of action is necessary. In my mind, the
judiciary hasn't done enough to reassure the public that it is doing
all that it can to address what are perceived to be cracks in the
system.
The bottom line is that no one is above the law. The President
isn't above the law. Congressmen and Senators aren't above the law. And
our judges aren't above the law either.
The facts do show us that the institution of the Inspector General
has been crucial in detecting, exposing and deterring problems within
our government. The job of the Inspector General is to be the first
line of defense against fraud, waste and abuse. In collaboration with
whistleblowers, Inspectors General have been extremely effective in
their efforts to expose and help correct wrongs.
That's why, during my 30 years on Capitol Hill, I've worked hard to
strengthen the oversight role of Inspectors General throughout the
federal government. I've come to rely on IGs and whistleblowers to
ensure that our tax dollars are spent according to the letter and
spirit of the law. And when that doesn't happen, we in Congress need to
know about it and take corrective action.
I truly believe that an Inspector General is just the right kind of
medicine that the federal judiciary needs to ensure that it is
complying with the ethics rules. An independent IG, one with integrity
and courage, will help root out waste, fraud and abuse. And the reality
is that if we establish internal controls, those controls can help make
sure that these problems don't happen in the first place.
Now, I know that some people think that there is no need for a
judiciary IG. They believe that the current system of self policing is
adequate. In addition, some believe that we can just legislate certain
rules for the judiciary, and that will fix the problems that we are
seeing. But, legislation is one thing; ensuring accountability is
another.
The judiciary's current self policing system is just not up to
snuff. There are too many questions about how conflicts and financial
interests are reported and how recusal lists are compiled and kept up
to date. There are too many questions as to whether the judiciary's
current policy--which I understand is not uniform throughout the
courts--is as effective as it can be. Transparency can only make the
system better and make our judges more accountable to the people. But
there isn't a lot of transparency with the current system. I agree with
some of my colleagues that one way to ensure that the ethics rules are
being followed is to allow more transparency with respect to a judge's
financial holdings and conflicts. Improved access to judges' financial
information, as well as judges' recusal lists, would promote
transparency and place a check on the judiciary.
But beyond that, an independent office of Inspector General within
the judicial branch can do a lot to keep the federal judiciary on its
toes and up to par with the standards that are expected of it.
And the proof is in the pudding. The institution of the IG in
various agencies has significantly increased accountability to the
public. Based on their oversight role, as well as oversight activity by
the Congress and the GAO, many agencies have improved internally and
have prevented more waste, fraud and abuse from happening. An internal
Inspector General is a simple, commonsense internal control and check
on internal impropriety. An internal watchdog also acts as a deterrent
for improper activity.
Further, an Inspector General's Office can do a better job when it
has the cooperation of employees who aren't afraid to raise concerns
about internal misconduct. Whistleblowers help strengthen and keep the
public trust. Whistleblowers who step forward and put their careers and
reputations on the line in defense of the truth deserve to be
protected, not retaliated against. Providing whistleblower protections
to judicial branch employees will only help our judiciary function
better.
The Judicial Transparency and Ethics Enhancement Act is a
straightforward bill. It would establish an Office of Inspector General
for the judicial branch. The IG would be appointed by the Chief Justice
of the Supreme Court, in consultation with the House of Representatives
and the Senate. The IG's responsibilities would include conducting
investigations of possible judicial misconduct, investigating waste
fraud and abuse, and recommending changes in laws and regulations
governing the federal judiciary. The bill would require the IG to
provide the Chief Justice and Congress with an annual report on its
activities, as well as refer matters that may constitute a criminal
violation to the Department of Justice. In addition, the bill
establishes whistleblower protections for judicial branch employees.
Ensuring a fair and independent judiciary is critical to our
Constitutional system of checks and balances. Judges are supposed to
maintain an appearance of impartiality. They're supposed to be free
from conflicts of interest. An independent watchdog for the federal
judiciary will help judges comply with the ethics rules and promote
credibility within the judicial branch of government. Whistleblower
protections for judiciary branch employees will help keep the judiciary
accountable. The Judicial Transparency and Ethics Enhancement Act will
not only ensure continued public confidence in our federal courts and
keep them beyond reproach, it will strengthen our judicial branch.
Again, I want to thank Chairman Coble and his colleagues for
allowing me to testify on this important bill.
Mr. Coble. Without objection, it will be done. And we
appreciate you being with us, Senator. We would be glad for you
to stay, but I understand you are on a short leash.
Senator Grassley. Thank you very much.
Mr. Coble. Good morning again, ladies and gentlemen. We
welcome you all to this important hearing before the
Subcommittee on Crime, Terrorism, and Homeland Security to
examine H.R. 5219, the ``Judicial Transparency and Ethics
Enhancement Act of 2006,`` introduced by the Chairman of the
House Judiciary Committee, Mr. Sensenbrenner.
Integrity and accountability within our Federal courts is a
critically important issue for all of us and has been for some
time. In 2001, as Chairman of the Courts, the Internet, and
Intellectual Property Subcommittee, I chaired a hearing on the
operation of the Judicial Conduct and Disability Act of 1980
and the relevant recusal statutes.
The 1980 act created a decentralized framework of self-
regulation whereby complaints of judicial misconduct are
reviewed by the chief judge of the relevant circuit or, in more
serious cases, judicial councils within the circuit.
We learned from the hearing that the complaint process was
largely unpublicized and that transparency issues persisted,
particularly with regards to conflicts of interest.
As a follow-up to the 2001 hearing, Representative Howard
Berman and I wrote to Chief Justice William Rehnquist offering
several recommendations to improve the application of the 1980
act and the recusal statutes. The Judicial Conference responded
to two of those three recommendations in its September 2002
report.
In recent years, there have been a disturbing number of
reports that a number of Federal judges--and I think I will say
a limited number of Federal judges, not that many--who are
continuing to violate ethical rules, including disclosure
requirements, or are engaging in judicial misconduct.
Equally troubling is the lackluster response from the
circuits in self-policing this behavior. It is clear that we
can no longer rely on--in my opinion, it is clear that we can
no longer rely on the 1980 act, and I share the Chairman's
concern on this issue.
H.R. 5219 establishes an independent inspector general
within the judicial branch who is appointed by and reports
directly to the chief justice of the United States.
The inspector general will conduct investigations of
complaints of judicial misconduct; conduct and supervise
audits; detect and prevent waste, fraud and abuse; and
recommend changes in laws or regulations governing the judicial
branch.
The creation of an inspector general is not a radical idea.
Inspectors general exist in over 60 executive agencies, boards
and commissions, and Congress as well. They shine a light on
the internal operations of these entities in order to prevent
fraud and improve efficiency and accountability.
There is no reason, it seems to me, why the judicial branch
should be exempt from this type of oversight.
As Chairman Sensenbrenner emphasized when he introduced the
bill, the inspector general will not have any authority or
jurisdiction over the substance of a judge's opinion--that is,
the merits of the case. Judicial independence in rendering
decisions is a critical component of the separation of powers
that must not be tampered with.
However, unethical behavior and misconduct must be taken
seriously to maintain the public's confidence in the judiciary.
And before I recognize the distinguished gentleman from
Virginia, and on a personal note, I have only known one member
of the U.S. Supreme Court personally, and that was the late
Chief Justice Rehnquist. And I found him to be a superb jurist
and a superb gentleman.
I have known several district and circuit court judges, all
of whom are superb. But there are some who miss the mark. We
have Members of Congress who miss the mark. I guess there is no
profession or vocation exempt from that.
And I think that probably is what Mr.--I recall having
read, Mr. Scott, of reckless extravagance of some judges in
furnishing their chambers and their courtrooms, elaborate
spending of taxpayers' money.
These sort of things, I think, can probably be examined
thoroughly and deliberately with the presence of an I.G.
Having said that, I look forward to hearing the testimony
from our distinguished panel.
And I am pleased to recognize the distinguished gentleman
from Virginia, and also welcome the Ranking Member of the full
Committee, the distinguished gentleman from Michigan, Mr.
Conyers.
Mr. Scott?
Mr. Scott. Thank you. Mr. Chairman, before we get started,
in reviewing this bill, I was just wondering how the Crime
Subcommittee got jurisdiction.
Mr. Coble. Rather than give you a runaround, I will admit I
don't know.
Mr. Scott. Moving right along.
Mr. Coble. But it was handed--the baton was handed to us,
so we ran with it.
Mr. Scott. Thank you, Mr. Chairman. Mr. Chairman, I am
pleased to join you in convening the hearing on H.R. 5219, the
``Judicial Transparency and Ethics Enhancement Act of 2006.''
Mr. Chairman, I favor Congress conducting regular oversight
over the administrative operations of the courts through
reports, hearings and avenues of communication.
I am in favor of Congress authorizing, but not requiring,
the Judicial Conference to appoint an inspector general or
other such officials to assist in their efforts to rein judges
in who do not follow the rules and to develop reports to be
sent to Congress and elsewhere that the conference might
direct.
But I am not in favor of Congress requiring the appointment
of a judiciary I.G. in whose appointment Congress has a say and
who reports to Congress as we might see fit, according to the
bills that we may direct.
I direct that such a congressionally influenced position
would clearly offend traditional notions of separation of
powers and comity between the legislative and judicial
branches.
We don't check with the executive or judicial branches when
we select officers for the House, and it is insulting to think
that they should have to consult with us when a judicial
officer is appointed.
Moreover, Mr. Chairman, I believe that the creation of such
a position is unnecessary. If we are dissatisfied with the way
the judiciary is addressing judicial discipline and other
matters, we should notify the chief justice, as you, Mr.
Chairman, and Ranking Member Berman did with Chief Justice
Rehnquist when you were Chairman of the Courts Subcommittee.
Mr. Chairman, you could give Chief Justice Roberts an
opportunity to respond to any questions that we may have.
Granted that the reports of judges taking and not reporting
lavish, privately financed trips and of judges not reporting
conflicts of interest as required, as well as failing to recuse
themselves as appropriate, those reports are disturbing.
While these matters require the judicial conference's
attention, as well as our attention in an oversight capacity,
there are a number of approaches available to Congress to
satisfy itself that these issues are being appropriately
addressed by the judiciary short of establishing a
congressionally directed and selected judiciary inspector
general.
There is evidence that the Judicial Conference is
addressing the issues, including the indications in a letter
dated yesterday to this Subcommittee. More specific information
is desired--if more specific information is desired, perhaps a
letter to the chief justice requesting an update on the
conference's progress would be more appropriate.
The judicial branch is certainly not the only branch in
Government with disturbing reports of inappropriately--of
inappropriate finance--privately financed trips and conflicts
of interest.
There are continue to be a number of such reports regarding
Members of Congress, despite actions taken by Congress over the
years to address the problem, including the establishment of an
inspector general.
While the Congress has an oversight responsibility to see
to it that the public resources it makes available to other
branches are expended in a publicly accountable and proper
manner, the oversight of ethics of individual employees of
those branches is better left to the branches themselves, short
of the necessity of use of Congress' impeachment powers.
With these reservations, Mr. Chairman, I look forward to
the testimony of our witnesses for their insight in the issues
that will be raised by H.R. 5219.
Thank you, Mr. Chairman.
Mr. Coble. I thank the gentleman.
And I say to my friend from Virginia I have just been
advised that the bill initially was, in fact, assigned to the
Courts Subcommittee, but upon request it was suggested that our
Subcommittee preside over the hearing. So belatedly, I have an
answer to your question, Mr. Scott.
The chair is now pleased to recognize the distinguished
Ranking Member, the gentleman from Michigan.
Mr. Conyers. Thank you. Chairman Coble and Ranking Member
Scott, I came by for this Committee hearing because it seems to
me that, once again, we are considering proposed legislation
that attacks the independence of the judiciary.
Despite the fact that the Nation's founders meant for the
judiciary to be free of partisan pressure and immune from
political whims, this Administration and this Congress have
pushed measures that subject courts to excessive oversight and
strip them of their powers.
What we would do here is create an inspector general for
the judiciary authorizing the I.G. with subpoena powers to
investigate misconduct by any Federal judge and recommend
action by Congress or the Justice Department.
The I.G. would also be empowered to recommend changes to
laws affecting the judiciary. This is unwise. For the first
time, an extrajudicial body would oversee the courts.
Under the current regime, the courts themselves review
allegations of misconduct and forward evidence of impeachable
offenses, if there are thought to be any, to the House
Judiciary Committee.
In addition, if congressional proponents of an inspector
general believe that serious abuses are occurring in the
judiciary, we can hold--open investigations on the subject
myself. No such congressional inquiries have been held.
This is telling of the motivation, to me, behind this
legislation. It appears that an inspector general has been
proposed as a means of intimidating judges into political
compliance. And that is my view. This would not be the first of
such attempts, and I hope that it would possibly be the last.
Now, the late Chief Justice Rehnquist appointed the
judicial--created the Judicial Conduct and Disability Act Study
Committee. And it was created to make a comprehensive study of
the act governing judicial conduct and its administration, with
a final report to Chief Justice Roberts expected very shortly.
And so there have been a number of steps that have been
taken by the courts to continue to police themselves, and I
hope that we will develop a fuller understanding about the
sensitivity of having an I.G. over the Federal courts itself.
And I thank you for the opportunity to enter into this
discussion with you.
I thank the distinguished gentleman. Thank you, Mr.
Conyers.
Gentlemen, it is the practice of the Subcommittee to swear
in all witnesses appearing before it, so if you would, please,
stand and raise your right hand.
[Witnesses sworn.]
Mr. Coble. Let the record show that each of the witnesses
answered in the affirmative.
You may be seated.
We have been joined as well by the distinguished gentleman
from Massachusetts, Mr. Delahunt.
Good to have you with us, Bill.
Mr. Delahunt. Thank you very much.
Mr. Coble. We have four distinguished witnesses, one of
whom has already departed, with us today. And I will dispense
with the introduction of Senator Grassley.
Our second witness is Mr. Ronald Rotunda, George Mason
University Foundation Professor of Law at the George Mason
University School of Law, a school that is well-known,
Professor, to my North Carolina people, since you all
eliminated us from the basketball activity earlier this year.
Professor Rotunda has authored and co-authored several
books on ethics and constitutional law, including the most
widely used course book on legal ethics, ``Problems and
Materials on Professional Responsibility.''
He has been a member of the publications board of the
American Bar Association Center for Professional Responsibility
since 1994, is a past member of the ABA Standing Committee on
Professional Discipline, and served as liaison to the ABA
Standing Committee on Ethics and Professional Responsibility.
Professor Rotunda is a graduate of both Harvard College and
the Harvard University School of Law.
Our second witness is Mr. Arthur Hellman, who we have seen
before.
Good to have you back, Professor.
Mr. Hellman. It is good to be back, sir. Thank you.
Mr. Coble. Sally Ann Semenko Endowed Chair and professor of
law at the University of Pittsburgh School of Law. Professor
Hellman is one of the Nation's leading academic authorities on
the Ninth Circuit Court of Appeals where he served on the
Appeals Evaluation Committee from 1999 to 2001.
He is the author of numerous articles and books, including
``Federal Courts: Cases and Materials on Judicial Federalism
and The Lawyering Process,'' which he co-authored in 2005.
Prior to joining the University of Pittsburgh Law faculty,
he was deputy executive director of the Commission on Revision
of the Federal Court Appellate System. Professor Hellman
received his B.A. from Harvard College and a J.D. from the Yale
University School of Law.
Our final witness today is Mr. Charles Geyh, professor of
law and Charles L. Whistler Faculty Fellow at the Indiana
University School of Law at Bloomington. Professor Geyh is the
author of ``When Courts and Congress Collide: The Struggle for
Control of America's Judicial System,'' and is currently a co-
reporter of the American Bar Association Joint Commission to
Evaluate the Model Code of Judicial Conduct.
He has previously served as Director of the American
Judicature Society Center for Judicial Independence, Reporter
to the ABA Commission on Separation of Powers and Judicial
Independence, and Counselor to the House Judiciary Committee.
Professor Geyh received his undergraduate and law degrees
from the University of Wisconsin.
Now, I apologize to you all for the delayed introduction,
but I think it is important for all of us to be familiar with
the impressive credentials that witnesses bring before this
Committee, and that is why I went into some detail.
Gentlemen, we are on a short leash as well. There will be a
vote on the House floor, I am suspecting probably within 30
minutes to 45 minutes. So as you all have previously been
requested, if you could confine your testimony to on or about 5
minutes.
And when you see the amber light appear on the panel in
front of you, that is your warning that you have a minute to go
before the ice becomes thin on which you are skating, but Mr.
Scott and I will not be unduly harsh with you. But if you could
comply with that 5-minute rule, we would be appreciative.
And, Professor Rotunda, why don't we start with you?
TESTIMONY OF RONALD ROTUNDA, PROFESSOR OF LAW, GEORGE MASON
UNIVERSITY SCHOOL OF LAW
Mr. Rotunda. Yes. Thank you very much. It is a pleasure to
be here.
I am pleased to offer this testimony on behalf of H.R.
5212, the proposed inspector general act. I think it offers
modest reform that will keep our judiciary independent, because
nobody favors a dependent judiciary, and will keep our
judiciary accountable, because no one favors a judiciary that
is above the law.
I agree with Professor Geyh. In his written testimony, he
says that this proposed bill will address ``a bona fide
problem.'' And he adds, ``If the judiciary is unwilling to
reform itself in the teeth of evidence that further reform is
necessary,'' he says then Congress should take stronger
measures.
I disagree. I think Congress can take stronger measures
now, though, of course, it should have a dialogue with Justice
Breyer and the Committee he is on.
Two general reactions have accompanied this bill. I think
first people ask why we have waited so long to have an
inspector general for the court. It exists throughout the
executive branch. There are now 57 statutory inspectors
general, plus others done by regulation.
The duties are to prevent fraud, waste, abuse and
misconduct, report violations of civil rights or civil
liberties. The House of Representatives has its own inspector
general. When Speaker Gingrich became speaker, he ordered an
outside audit of the House, and outside firms conducted it.
One engages in such conduct not because you think there is
evil afoot, but just to assure everyone that things are fine.
Outside auditors perform that function well. Inspector generals
do that as well. I really don't see the argument that inspector
generals should not at least have an auditing function over the
courts.
The proposed inspector general act does not--it does
important things, but it is not what some of its detractors
would suggest. It would conduct and supervise audits and
investigations, prevent fraud and detect waste, recommend
changes in law and regulations governing the judicial branch--
anyone can do that, including the I.G.--and then conduct
investigations relating to the judicial branch, including
possible misconduct that may require oversight or other action
by Congress.
Very little would do that, but some things, like proposed
changes in the law you could see coming up periodically. These
proposals are salutary. They will protect--the inspector
general will protect judges from frivolous or false charges. No
organ of Government should be above the law.
The second reaction to this proposal is also surprising.
Some people greet the law the way Dracula would greet garlic.
They shy away. Justice Ginsberg is quoted in the papers as
saying she finds the proposal ``a really scary idea.''
I don't think the sky is falling. I think opponents do not
attack the bill that is actually proposed but one that they
fear or imagine. It is not going to limit judicial dependence.
If it did, I wouldn't testify in favor of the bill.
I think it will strengthen judicial independence, because
it gives people greater faith that if there are problems the
inspector general will deal with them, and that the--what is
becoming more common character assassinations of Federal judges
the inspector general could say ``I have investigated that
there is no problem''--be done with it.
There is actually a plea for statutory change by the judges
themselves. I refer to this in my written statement, which is
longer, but it is the opinion of the Judicial Conference on
April 28 of 2006.
The majority held that under the Federal statute it had no
jurisdiction to proceed with discipline because the chief
circuit judge of the Ninth Circuit and the Judicial Conference
of the Ninth Circuit did not follow the mandatory statutory
procedures.
The majority said that we can do nothing because the other
judges violated the statute. And then the majority of judges
requested that Congress enact new legislation to solve this
problem.
I checked; nobody from Congress that I know of has gotten
any requests from the judges for the statutory change. But this
Committee or these judges asked for it. I think this
legislation is an appropriate response.
Judge Winter's dissent in that case, joined by Judge
Dimmick, warned that allowing the judges to police themselves
is not working. He said, and I am quoting now, ``A self-
regulatory procedure suffers from the weakness that many
observers will be suspicious that complaints against judges
will be dissolved, will be disfavored. The Committee's decision
in this case can only fuel such suspicions.''
I don't--I think in 99 percent of the cases against judges
are dismissed anyway, and I think under an inspector general it
will be about the same percentage. But one or two may come out
differently. That will be important.
And even more important, we will be satisfied that the
other 99 percent are properly dismissed, because the inspector
general would be the one agreeing with the courts.
The judge later added that the required statutory procedure
was not followed. The disposition of the present matter is
therefore not a confidence-builder. Sadly, he is correct.
I think it is time for a change. When we use a system and
it doesn't work, our response should not be to invoke a catch-
phrase. Our response should be to create a system that will
work.
Now, if the Federal courts had an inspector general, we
would have more openness. People would not assume that judges
are above the law. I have no doubt that the great majority of
cases are without merit. The inspector general will give us
assurance that the law is followed.
Professor Steven Lubet of Northwestern University has
pointed out--quoting again--``Federal judges have more
insulation than anyone in American political life. A judge with
life tenure needs less protection, not more than an ordinary
citizen.''
Now, under the proposed law, the chief justice appoints the
inspector general. He is appointed by the chief. Congress has
no power to remove anybody except by impeachment. The Senate
doesn't confirm the chief justice--the inspector general. That
is just left up to the chief justice.
The inspector general reports to the chief justice. It is
true, he files a report with Congress. That doesn't mean he is
under the thumb or reports to Congress any more than the
President of the United States is under the thumb of Congress
because he is required by the Constitution to give a state of
the union report every year.
It is a fairly modest bill. Maybe there is some disputes
about language that can be worked out. But I think it is going
to be a salutary role for the courts. It will increase their
independence and not decrease it.
Thank you very much.
[The prepared statement of Mr. Rotunda follows:]
Prepared Statement of Ronald D. Rotunda
Mr. Coble. Thank you, Professor Rotunda.
Professor Hellman?
TESTIMONY OF ARTHUR HELLMAN, PROFESSOR OF LAW, UNIVERSITY OF
PITTSBURGH SCHOOL OF LAW
Mr. Hellman. I thank you, Mr. Chairman.
You know, Mr. Chairman, as I sit here this morning, it is
impossible not--for me not to think back to that hearing which
you have already mentioned that you chaired in November 2001 on
the operation of the judicial misconduct statutes.
If at that hearing you had asked me whether any substantial
modifications were required in the existing arrangements that
govern judicial discipline and judicial disqualification, I
would have said no.
But three recent developments suggest a different
conclusion today. First, there is the unfortunate episode that
has already been mentioned of the misconduct complaint against
Judge Manual Real of the Central District of California.
Professor Rotunda in his statement has described that
episode in some detail, and I will not retrace that ground
myself. What seems clear is that the episode has revealed a gap
in the procedures for considering complaints against Federal
judges. And again, Professor Rotunda has described that gap.
Well, you might say that is just one episode, but a single
widely publicized episode can create grave public doubt about
the effectiveness and even the legitimacy of the process.
The episode also reveals a lack of transparency. Although a
special Committee has now been appointed, the order creating
the Committee cannot be found in any of the places where you
would expect to find it.
The second set of developments involves judicial
disqualification and the conflict of interest statutes. At the
2001 hearing there was substantial evidence that raised
questions about some judges'--and as you have properly said,
some judges'--compliance with the laws governing
disqualification.
And you, Mr. Chairman, as you have already mentioned--you
and Ranking Member Berman sent a bipartisan letter to Chief
Justice Rehnquist urging the Judicial Conference to require all
Federal courts to adopt the Iowa model for posting conflict
lists on court Web sites.
The Judicial Conference did not follow that suggestion. And
now, in 2006, history repeats itself with disturbingly similar
allegations, this time against Judge Payne and Judge Boyle. As
Yogi Berra might say, it is deja-vu all over again. And the
consequences are felt not just by those particular judges, but
by the judiciary as a whole.
Finally, there is the Breyer Committee that--that we have
heard about here already. And Professor Geyh suggests that
Congress should wait for the committee's report rather than
proceed to consider legislation now.
Now, ordinarily, I would agree with that, because I think
we can learn a lot from such a distinguished group of judges.
But we have been waiting for quite some time. And that
committee was formed more than 2 years ago.
And since then, as far as I am aware, we haven't heard a
peep. There have been no hearings, no announcements inviting
people to express their views or give their experiences with
the process, and of course, no report and no recommendations
for improving the operation of the misconduct statutes.
Under those circumstances, I think it is reasonable here in
this Subcommittee to consider the proposal that is on the
table, namely H.R. 5219.
Now, as has already been discussed, that bill would create
an inspector general for the Federal judiciary. And I think
that the sponsors of that bill have taken great pains to design
this new mechanism in a way that respects the status of the
judiciary as a co-equal and independent branch of Government.
And that point is developed at some length in my testimony.
But with my limited time here, what I would like to do is
to offer a couple of suggestions for fine-tuning the bill,
because I do think it can be improved to address some of the
concerns.
My own principal concern is that the proposed new section
1023(1) of title 28 does not adequately explain how the
functions of this new office would be integrated into the
existing statutory structure for dealing with complaints
against judges.
In particular, the bill could be read as authorizing the
I.G. to carry out his or her investigations simultaneously with
those of the chief judge, the circuit council or even the
Judicial Conference of the United States. And that kind of
duplication of effort would be wasteful, it would be
inefficient, and it would be confusing.
Now, I do think that there is a pretty simple fix for that.
I have outlined it in my testimony, and I hope we can talk a
little bit about it here. But basically, it would make clear
that the I.G.'s responsibilities begin after the circuit has
completed its work.
Another suggestion I have is that the bill should make more
explicit the responsibility of the I.G. for promoting
transparency within the judiciary in matters involving
misconduct or possible conflicts of interest. There is a lot of
work to be done there in transparency. I hope we have a chance
to talk about those and the other suggestions I have offered.
And once again, I appreciate the chance to express my views
today. Thank you.
[The prepared statement of Mr. Hellman follows:]
Prepared Statement of Arthur D. Hellman
Mr. Coble. Thank you, Professor.
Mr. Geyh?
TESTIMONY OF CHARLES GEYH, PROFESSOR OF LAW, INDIANA UNIVERSITY
SCHOOL OF LAW AT BLOOMINGTON
Mr. Geyh. Mr. Chairman, I would like to begin on a personal
note. I served as counsel to Bob Kastenmeier in the early
1990's on the Courts Subcommittee and remember you fondly as
someone who regardless of whether you agreed with Mr.
Kastenmeier and regardless of what went on in that hearing room
were always a consummate gentleman.
I admired it then. I admire it now. It makes it a real
privilege to be here.
Mr. Coble. Well, you will recall I served as--in the
minority under Chairman Kastenmeier. He was indeed a superb
Chairman of this Subcommittee and, I am told, still lives in
the area. Is that correct?
Mr. Geyh. He does indeed. I saw him as recently as a week
ago.
Mr. Coble. Thank you.
Mr. Geyh. The one thing I would like to add to this hearing
that I think the other two witnesses have not is a little bit
of context. These are troubled times for the relationship
between judges and legislators.
We have a number of legislators who are very concerned
about the extent to which, you know, certain judges have
decided cases in ways that they are deeply troubled by. And so
we see proposals being floated to impeach judges in some
instances, to take away their jurisdiction, to dismantle courts
altogether and to cut judicial budgets.
And this isn't the first time that we have seen a period of
intense anger directed at courts and judges. In fact, it has
happened in every generation since the founding of the nation.
And the funny thing about it--not funny; but an important
thing happened. Beginning in the 19th century, some of--
sometimes Congress did make good on these threats to control or
curb the courts in significant ways.
Beginning in the late 19th century, however, something
important happened, which was Congress began to think twice
about it, that as our constitutional culture matured and
Congress and the people it represented began to say you know,
this kind of control is inappropriate in an environment where
we want our judges to be independent enough and impartial
enough to follow the law.
And so these mechanisms of intimidation were abandoned.
Does that mean that Congress immediately stopped being
concerned about judicial accountability? Not at all. Beginning
in the late 19th century Congress began looking at ways to make
the judiciary accountable by making it accountable to itself.
The first thing it did in the late 19th century was create
a big court of appeals structure, avowedly for the purpose of
ending what it called ``judicial despotism'' by the district
courts.
It then went ahead and created the Judicial Conference to
let judges govern themselves, the administrative office, to
give it administrative control over the judiciary and
ultimately, in 1980, under--with you in Congress, a measure to
have judges discipline their own. This is the--the trend that
we have seen.
And against that backdrop, I think 5219 is a little bit
troubling, more troubling than the other witnesses find it,
because it really represents a move away from this century-long
tradition where we have entrenched norms, you know, enabling
the judiciary to regulate itself, and toward something else, in
which we give--take regulatory power away from the judiciary
and hand it to an inspector general and, indirectly, we give it
to Congress.
Now, this is doubly troubling, it seems to me, because in
this context we have a concern that notwithstanding the best
intentions of the drafters, this bill can be used to go after
the judiciary because of its decisions.
I realize that is not Chairman Sensenbrenner's intention.
But if you read the language of the bill, it says quite
specifically that it authorizes the inspector general to
``conduct investigations of matters pertaining to the judicial
branch.''
And it would seem to me that the decisions judges render
are within the scope of a matter pertaining to the judicial
branch. Now, we can get into legislative parsing, and it is
possible that we could read that out of the bill.
But my concern is that in this current environment, where
there are some Members of Congress--not in this room, but some
Members of Congress--who are interested in using any way they
can to retaliate against judges, this bill could be misused for
that purpose.
I am even more troubled by the fact that the role the
Congress plays in this bill is considerable, that Congress has
some say over who is going to be appointed.
It has some say over what is investigated and on what
terms, and when the reports are issued, which culminates, I
think, in giving Congress the latitude to determine who is
being investigated, which adds and opens another door to
retaliatory strikes against individual judges.
Now, some can say this is much ado about nothing, that we
have inspectors general in the executive branch and they don't
have any of these problems. My point here is simply to say this
isn't the executive branch.
This is an independent judicial branch that is different
from an executive branch agency and where we ought to be a
little more concerned about its independence.
More importantly, and I think this is the point I want to--
I want to emphasize--unlike the judiciary, the executive branch
has weapons at its disposal to make sure that Congress doesn't
overreach, that Congress doesn't try to erode the independence
of the inspector general.
And indeed, the history of the inspectors general and the
executive branch that is, you know, included in a book I
recently read from the Brookings Institution is all about
Congress and the president jockeying for influence in such a
way that the inspector general is preserved in his
independence, so that, as one inspector general put it, we
straddle a barbed-wire fence between these two branches.
That barbed-wire fence isn't there with the judiciary,
which lacks the power to push back if Congress erodes its--if
Congress pushes too hard. And as a consequence, I worry about
that.
Does that mean we do nothing? No. I think both Professor
Rotunda and Professor Hellman have--and you, Chairman, have
identified some serious problems that we need to grapple with.
The first step I think is to hear what the judiciary has to say
about these specific problems.
There are not--it is not just the Breyer commission, but
the commission on the judicial branch and the commission on
codes of conduct are actively looking at these matters now. If
the point is they need to expedite their inquiry, Congress
should tell them that. And then at that point, we can decide
whether stronger medicine is required. And it may be.
A bill like this may ultimately be necessary, but not now.
Thank you.
[The prepared statement of Mr. Geyh follows:]
Prepared Statement of Charles G. Geyh
My name is Charles G. Geyh. I am a Professor of Law at Indiana
University at Bloomington, the author of When Courts & Congress
Collide: The Struggle for Control of America's Judicial System
(University of Michigan Press 2006), and coauthor, (with Professors
James Alfini, Steven Lubet, and Jeffrey Shaman) of the forthcoming
fourth edition of Judicial Conduct and Ethics (Lexis Law Publishing
2007). I am currently co-Reporter to the ABA Joint Commission to Revise
the Model Code of Judicial Conduct, and previously served as consultant
to the National Commission on Judicial Discipline and Removal.
H.R. 5219, the Judicial Transparency and Ethics Enforcement Act of
2006,'' has a laudable goal: to make the federal judiciary better
accountable for its budget and for the ethical transgressions of its
judges. Pursuing that goal by creating an inspector general for the
federal judiciary, however, is highly problematic for at least two
reasons:
First, inspector general investigations can and
likely will be exploited to punish judges for their judicial
decisions, statements of bill sponsors to the contrary
notwithstanding, thereby jeopardizing core judicial
independence norms that Congress has respected for well over a
century.
Second, inspectors general are commonplace within
executive branch agencies, but the judiciary is not an agency--
it is an independent branch of government. To the extent that
inspectors general for executive branch agencies have performed
with independence and integrity, it is for reasons that the
judicial branch is ill-equipped to replicate, because the
judiciary lacks the powers of the executive branch to thwart
Congressional intrusions into its inspector general
investigations.
Although I have serious reservations about H.R. 5219, the bill
serves the salutary purpose of communicating an important message to
the judiciary: that Congress is serious about the judiciary's ethical
and fiscal responsibilities and that the judiciary should be equally
so. Recent events reported in the press signal possible deficiencies in
the judiciary's ethics rules and disciplinary framework. The preferred
approach is to work cooperatively with the courts to address the
concerns that animate H.R. 5219, rather than to impose a potentially
problematic solution on an unwilling judiciary. Such a conversation
should await the results of three ongoing projects within the judicial
branch--Justice Stephen Breyer's Commission on the disciplinary
process; the Judicial Branch Committee's study of privately funded
seminars, and the Codes of Conduct Committee's review of recusal
issues--and take place in the shadow of this bill, giving Congress the
leverage it needs to ensure meaningful reform.
BACKGROUND
In the past few years, members of Congress have been highly
critical of federal judges and their decisions, and have proposed a
variety of reforms calculated to punish ``judicial activists'' and curb
their excesses. Some have proposed to impeach offending judges.\1\
Others have advocated defiance--one bill would deprive the executive
branch of the resources to enforce judicial orders in specified
cases.\2\ One suggested that Congress disestablish uncooperative
courts,\3\ while another proposed to cut the judiciary's budget to
``get their attention,'' \4\ and many have pressed for legislation to
deprive the courts of jurisdiction to hear specific kinds of cases on
politically sensitive subjects.\5\
---------------------------------------------------------------------------
\1\ Ralph Hallow, Rpublicans out ti Impeach ``Sctivist'' Jurists,
Washington Times, March 12, 1997, at A1.
\2\ Stephen Dinan, House Targets Judicial ``Errors'' With a New
Strategy; Votes to Stop Enforcement of Rulings on Pledge, Posting,
Washington Times, July 29, 2003 at A1.
\3\ Rick Klein, DeLay Apologizes for Blaming Federal Judges in
Schiavo Case but House Leader Calls for Probe of ``Judicial Activism,''
Boston Globe, April 4, 2005.
\4\ Ruth Marcis, Booting the Bench, Washington Post, April 11,
2005.
\5\ Alexander Bolton, Courts May Be Stripped on the Pledge, The
Hill, September 16, 2004 at 1.
---------------------------------------------------------------------------
This is not the first time that federal judges have weathered a
sustained period of criticism.\6\ The first occurred at the turn of the
nineteenth century when Thomas Jefferson succeeded John Adams as
president and the Jeffersonian Republican Congress dedicated itself to
undoing damage they perceived the outgoing Federalists as causing the
federal courts, by disestablishing judgeships and impeaching unpopular
judges. A generation later, President Andrew Jackson and his supporters
in Congress locked horns with the Marshall Court over the supremacy of
the Supreme Court's authority to impose its interpretation of the U.S.
Constitution on the state and federal governments, and several states
openly defied Court orders. Another generation after that, a radical
Republican Congress squared off against the Supreme Court in the
aftermath of the Civil War over a number of issues pivotal to the
Reconstruction agenda, and stripped the Supreme Court of jurisdiction
to hear a pending case. Roughly twenty-five years later, near the turn
of the twentieth century, congressional populists and progressives
advocated a variety of means to restrain the courts from invalidating
legislative reforms at the state and federal levels. During the 1930s,
an exasperated Franklin Roosevelt invited Congress to pack the Supreme
Court with additional justices to thwart the Court's conservative
majority that had struck down several New Deal programs. The passage of
another generation saw members of the Warren Court targeted for
impeachment, and bills introduced to curtail federal court
jurisdiction, all or in part because of their liberal-leaning decisions
in civil rights and civil liberties cases.
---------------------------------------------------------------------------
\6\ For an elaboration upon these cycles of anti-court sentiment
and the emergence of judicial independence norms, seeCharles Gardner
Geyh, When Courts and Congress Collide: The Struggle for Control of
America's Judicial System 51-113 (2006).
---------------------------------------------------------------------------
In the 19th Century, Congress sometimes made good on these cyclical
threats to impeach errant judges, disestablish their courts, or strip
them of jurisdiction. Gradually, however, Congress--and the people it
represented--came to appreciate that such threats were antithetical to
an emerging Constitutional culture that respected the role independent
judges play in American government and that rejected draconian
proposals to manipulate the decisions that judges make. Although angry
members of Congress have continued to make such proposals every
generation or so, they are almost never implemented, as judicial
independence norms have become more fully entrenched.
That these heavy-handed means of court control gradually fell into
disuse is not to suggest that Congress became indifferent to judicial
accountability. Rather, Congress ultimately decided that the best way
to balance the needs of judicial independence and accountability was to
delegate to the judiciary the authority it needed to be better
accountable to itself.\7\ And so, in 1891, Congress created the circuit
courts of appeals for the express purpose of curbing district court
despotism by means of appellate review. In 1922, it created the
precursor to the Judicial Conference of the United States, thereby
enabling the judiciary to govern itself as a branch; in 1934 it
delegated to the courts the power to make their own procedural rules;
in 1939, it created the Administrative Office of U.S. Courts, thereby
rendering the judiciary accountable for its own budget; and in 1980, it
established a system for regulating judicial misconduct in which judges
were authorized to discipline their own.
---------------------------------------------------------------------------
\7\ For a discussion of this century-long project to make the
judiciary better accountable to itself, see id. at 92-110
---------------------------------------------------------------------------
H.R. 5219 CAN AND LIKELY WILL BE EXPLOITED TO PUNISH JUDGES
FOR THEIR JUDICIAL DECISIONS
At first blush, H.R. 5219 may look like another proposal in keeping
with the modern trend toward equipping the judiciary with the tools it
needs to make it better accountable to itself, by creating a Chief
Justice-appointed inspector general ``for the judicial branch'' who
bill sponsors have taken pains to emphasize ``will not have any
authority or jurisdiction over the substance of a judge's decisions.''
A closer look, however, reveals that notwithstanding the best
intentions of its drafters, this legislation could be employed by
members of Congress to manipulate judges and their decision-making in
patently unacceptable ways.
In evaluating the impact of proposed legislation on the courts,
context matters. When President Franklin Roosevelt introduced his
Court-packing plan in 1937, it was on the pretext that federal judges
were elderly, had fallen behind in their work, and needed additional
help. Superficially, then, his was an innocuous plan to improve the
efficient operation of the courts. In context, however, this was an
Administration furious with Supreme Court decisions invalidating New
Deal legislation, and intent on finding a way to get around those
decisions, and so--notwithstanding the President's explanation--the
court-packing plan was generally understood as a direct assault on the
judiciary's autonomy. Context matters with H.R. 5219 too. This is not a
sympathetic Congress that is looking for ways to help the courts better
administer themselves. This is an angry Congress that is dismayed with
federal judges generally, with their autonomy, with the outcomes of
cases that they have decided, and with the way they run their shop.
When, in 2004, Chairman Sensenbrenner addressed the Judicial Conference
on the relationship between Congress and the courts, he quite pointedly
called attention to two recent disciplinary matters that in his view
``raise[] profound questions with respect to whether the Judiciary
should continue to enjoy delegated authority to investigate and
discipline itself,'' adding that ``If the Judiciary will not act,
Congress will.'' The next year, when Chairman Sensenbrenner first
elaborated on his proposal to create an inspector general for the
judiciary, it was in the context of a speech at Stanford in which he
expressed his dismay for ``judicial activism'' but pronounced
impeachment too ``extreme'' a remedy, before adding in the very next
sentence that ``[t]his does not mean that judges should not be punished
in some capacity for behavior that does not rise to the level of
impeachable conduct'' and hailing judicial discipline as the
appropriate solution. Perhaps Chairman Sensenbrenner did not mean to
imply that judicial discipline was an appropriate remedy for
``activist'' decision-making, but in the larger context of an angry
Congress looking for ways to diminish the courts' autonomy and control
judges and their decisions, if H.R. 5219 can be construed to authorize
investigations into judicial decision-making, odds are that some
members of Congress will seek make it happen.
H.R. 5219 is indeed written broadly and ambiguously enough to
authorize inquiries into judicial decision-making:
Section 1023 authorizes the Inspector General to
``conduct investigations of matters pertaining to the Judicial
Branch, including possible misconduct in office of judges and
proceedings under chapter 16 of this title, that may require
oversight or other action within the Judicial Branch or by
Congress.'' It would certainly seem that a judge's decisions
would fall within the ambit of ``matters pertaining to the
judicial branch,'' unless the ``including'' clause that follows
is intended to limit applicable ``matters'' to those involving
judicial misconduct or proceedings under Chapter 16. While the
latter construction is possible, it is strained and odd-
seeming, because it would mean that the section conferred a
sweeping investigatory mandate in one clause only to take it
away in the next.
Even if pertinent investigations were limited to
questions of ``misconduct in office by judges,'' a judicial
decision in which a judge rendered a decision by allegedly
disregarding his oath to follow the law and substituting his
own personal or political predilections, might well qualify as
a form of misconduct. Indeed, Canon 3A of the Code of Conduct
for U.S. Judges provides that ``A judge should be faithful to
and maintain professional competence in the law.'' The judge
whose decision arguably reflects a lack of competence or
fidelity to the law would thus seem to fall within the zone of
inquiry. It is possible to limit the construction of section
1023 still further to confine ``misconduct in office'' to
matters actionable under Chapter 16--which calls for the
dismissal of complaints related to the merits of judicial
decisions. If, however, the objective is to place judicial
decision-making clearly outside the scope of inspector general
inquiries, the bill should say so with clarity.
Finally, even assuming that a judge's decisions are
technically outside the scope of section 1023, angry members of
Congress may agitate for investigations targeting unpopular
judges, ostensibly on the grounds that the judges in question
have mismanaged their budgets or engaged in ethical
improprieties independent of their decisions. In this context,
heightened scrutiny is itself a form of Congressional
retaliation.
THE JUDICIARY LACKS THE POWERS OF THE EXECUTIVE BRANCH TO THWART
CONGRESSIONAL OVERREACHING INTO ITS INSPECTOR GENERAL INVESTIGATIONS.
Proponents of H.R. 5219 have pointed to the success of inspector
general programs within administrative agencies as evidence of their
potential value within the judiciary. The judiciary, however, is not an
administrative agency. It is a separate and independent branch of
government--and one that lacks the powers at the executive branch's
disposal to resist Congressional overreaching.
H.R. 5219 gives Congress a significant role to play in the workings
of the proposed office of inspector general for the federal judiciary.
First, under Sec. 1022, the Chief Justice appoints the inspector
general ``after consultation'' with Congressional leaders. Although the
Chief Justice's nominee may not technically require Congressional
approval, in the current political climate such approval will be a
practical necessity. Second, in Sec. 1023(1), the ambit of the
Inspector General's duties are defined to reach ``matters pertaining to
the judicial branch . . . that may require oversight or other action .
. . by Congress.'' Third, Sec. 1025(a)(1) directs the Inspector General
to make annual reports to Congress, while Sec. 1025(a)(2) directs the
Inspector General to ``make prompt reports to . . . Congress on matters
that may require action by [it].''
Taken together, these powers would give Congress the leverage to
influence who is named Inspector general, which judges are targeted for
investigation, what kinds of information the inspector general provides
to Congress, and when. When Congress intrudes too far on the
prerogatives of inspectors general within the executive branch, the
executive branch is well equipped to push back, given the President's
considerable political influence and his veto power in the legislative
arena. The history of inspectors general within administrative agencies
is thus one of constructive tension between the legislative and
executive branches as they jockey for influence.\8\
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\8\ For a history of inspectors general within the executive
branch, see Paul C. Light, Inspectors General and the Search for
Accountability (1993).
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The judiciary, however, lacks the power to push back, and is thus
far more vulnerable to Congressional incursions upon its autonomy,
where, as here, the legislation affords Congress so significant a role
to play in the inspector general's operations. The only weapon at the
judiciary's disposal to fend off such incursions is judicial review--
which all agree should be used sparingly, and which, if employed in
this context, could precipitate a constitutional crisis.
CONCLUSION
H.R. 5219 seeks to address a bona fide problem. Federal judges have
come under fire for their attendance at expense-paid seminars, their
failure to disqualify themselves from cases in which recusal would seem
to be warranted, the absence of ethical standards applicable to the
Supreme Court, and the failure of the disciplinary process to call
judges to task in cases where it was arguably warranted. For the
reasons specified above, H.R. 5219 is an ill-advised solution to these
problems that would jeopardize a tradition of restraint in the
relationship between courts and Congress that is well over a century in
the making. The preferred approach is to await the report of Justice
Breyer's Commission together with the results of related efforts by
Judicial Conference Committees on the Judicial Branch and the Codes of
Conduct, and then work cooperatively with the Judicial Conference to
meet Congress's remaining concerns. If the judiciary is unwilling to
reform itself in the teeth of evidence that further reform is
necessary, that may be the time to consider stronger medicine. But not
now.
Mr. Coble. Thank you, Professor Geyh.
Thanks, Professors, all.
Now, we imposed the 5-minute rule against us as well, so we
will commence our line of questioning.
Professor Rotunda, this may be a rhetorical question, but I
want to get it on the record. Critics argue that the creation
of a judicial inspector general is overreaching by Congress and
threatens the independence of the third branch. What say you to
that?
Mr. Rotunda. That is not what this bill proposes. It has
got--under the bill, the chief justice appoints the inspector
general. The duties of the inspector general are limited.
Congress has no role that concerns the inspector general. There
is talking back and forth. That can't possibly be wrong or
erode independence.
I think efforts by Congress to restrict the courts'
jurisdiction, to increase the number of judges on the Supreme
Court like FDR's court-packing plan--that erodes judicial
independence. This is simply giving a modest amount of judicial
accountability.
Mr. Coble. Professor Hellman, in your testimony you alluded
to a gap in the current Federal misconduct statutes. Elaborate
a little more in detail on that, A. And is it your belief that
the bill before us would close this gap?
Mr. Hellman. Thank you, Mr. Chairman. Yes. The gap
basically is one that occurs in those situations where the
circuit processes have not worked in a specific way, that the--
that there--there is an issue that should have been heard, an
allegation of misconduct that should have been heard by a
special committee because there are issues of fact that are
open to dispute. The statute as amended in 1980--amended in
2002 requires that.
If that happens, if the chief judge of the circuit doesn't
appoint a special committee, even though he or she should, and
if the circuit council ratifies that by dismissing the
complaint, there is no appeal to the circuit conference.
The circuit--five members of the panel were frustrated
that--the three dissenters more than the two in the majority,
who thought there was just nothing they could do.
This bill can be used to fill that gap. I think it has to
be written a little bit more carefully to do that, but it can
make clear that there is a channel of review for those cases,
and I think that will give the people substantially more
confidence in the process.
Mr. Coble. Thank you, sir.
Professor Geyh, how will a judicial inspector general be
exploited to punish judges in their judicial decisions, if, in
fact, they will be exploited, A? And B, cannot Members of
Congress currently file complaints alleging judicial misconduct
under the 1980 act?
Mr. Geyh. Fair questions, Mr. Chairman. I think the first
point is that the bill itself says the inspector general can
conduct investigations of matters pertaining to the judicial
branch.
That means that if an angry Member of Congress says I don't
like this particular decision, that would be a matter falling
within the judicial branch.
More specifically, though, let's even limit it to the
qualifying clause that it deals with issues of misconduct.
Canon 3A of the Code of Conduct for United States judges says
judges must be faithful to the law.
If a Member of Congress says this judge is an activist
judge who has disregarded the law, we now ought to investigate
that as a violation of Canon 3A, and that is a form of
misconduct that will properly fall within the scope of this
bill. That is what worries me.
Even if that is avoided, I think the larger problem is that
if there is a decision that Members of Congress don't like, you
can target that judge for an investigation, irrespective of
whether you are going after his decisions.
You can say this judge decided case X in Y way, we now want
to have it investigated because we think he is mismanaging his
budget or because his ethical transgressions in other cases are
worthy of investigation.
It is true that Congress can now file complaints, but this
gives the Congress a formal avenue with which to go to the
inspector general and start directing the inspector general to
be conducting investigations of particular kinds.
That doesn't happen in the executive branch. I worry,
however, that the judicial branch is really going to have
trouble preserving the independence of the inspector general
under circumstances in which, unlike presidents, you don't have
that kind of authority to what I call push back.
Mr. Coble. Before the red light appears, Professor Rotunda,
your body language tells me you want to insert your oars into
these waters for rebuttal, so I will recognize you.
Mr. Rotunda. I am Italian. I have to talk with my hands,
not just my mouth. [Laughter.]
But if you look at--I mean, I disagree with Professor
Geyh's interpretation of the statute, the proposed statute.
Section 1023 under the duties--the duties are not to
conduct investigations of matters pertaining to the judicial
branch. It says conduct investigations of matters pertaining to
the judicial branch that may require oversight or other action
within the judicial branch or by Congress.
The inspector general could find a problem with the
judiciary that needs a statutory solution and officially tell
Congress about it. That is--that is a useful but not earth-
shaking reform.
The inspector general could--sadly, this happens--find a
situation where Congress has to impeach, propose impeachment.
That has been done before. It has been done once in the last
several decades, and hopefully never again.
These are very modest--it is not just to conduct
investigations of the judicial branch. It is that requires
oversight or other action within the judicial branch that you
tell--you tell the chief justice or that requires a statutory
solution. That is very modest.
Mr. Coble. Well, I thank you, sir.
My time has expired.
The distinguished gentleman from Virginia, Mr. Scott?
Mr. Scott. Thank you, Mr. Chairman. Mr. Chairman, the thing
that concerns me is the congressional involvement in the
selection of the I.G.
What would the reaction be if some other branch of
Government had a say in who the congressional I.G. would be?
Say the President could help select such a person, or the
judicial branch could help--such a person.
What would--Mr. Geyh, what would you think the reaction
would be?
Mr. Geyh. Well, my--my impression is that--that there--
Congress has a significant interest in preserving its own
autonomy, and that if there were some interest in other
branches dictating who the appointees of that branch were, it
would not be well received.
I think that is an understandable reaction, which is part
of the reason why I don't say so in my testimony, but I would
have no aversion to Congress authorizing the judiciary to
create an inspector general.
And I should add, by the way, that--and this is just as an
aside--there is no provision in this bill for the removal of
inspectors general, and that worries me a little bit. Who has
that power and under what circumstance?
It seems to me that if this bill goes forward, at a minimum
there ought to be something in there about--about removal.
Mr. Scott. I would ask either Mr. Rotunda or Mr. Hellman,
where is it in the bill that prohibits the I.G. from reviewing
and commenting on and reporting on the compliance with
precedents in actual opinions that are written?
Mr. Rotunda. There is--there is--there is no authority for
them to do that anywhere in the--in the proposed statute. I
mean----
Mr. Scott. Well, it says----
Mr. Rotunda. --if you look at--duties under 1023, looking
at now----
Mr. Scott. Wait, wait. Let me--let me--let me--let me
read----
Mr. Rotunda. Yes.
Mr. Scott. --make an annual report to the chief justice and
the Congress relating to activities of the office and make
prompt reports to the chief justice and Congress on matters
that may require action by them.
That would certainly cover opinions. We might have to take
action if they have an opinion that a law was unconstitutional.
Mr. Rotunda. Congressman Sensenbrenner has already publicly
stated that the purpose----
Mr. Scott. Well, I----
Mr. Rotunda. No, I mean, I think we can clear up the
statutory language.
Mr. Scott. Okay.
Mr. Rotunda. I thought----
Mr. Scott. But it is not--it is not in the bill----
Mr. Rotunda. Well, I thought----
Mr. Scott. --as you read it.
Mr. Rotunda. I thought it was limited under section 1023(1)
but I certainly have no objection to making the bill more
clear.
Mr. Scott. Okay. Do you see--it would have to be made clear
that we are not talking about their opinions? Or are we talking
about their opinions?
Most of the complaints from this Committee come from the
opinions, not from--and yesterday we were talking about
limiting jurisdiction of the Federal courts because we didn't
like what they might potentially decide.
Mr. Hellman. May I just add----
Mr. Scott. Now we are talking about impeaching judges who
don't rule the way we want. I mean, we have had a lot of
complaints from this Committee.
Mr. Hellman. May I just add briefly, I would very much like
to see that made explicit in the bill. I think the--Chairman
Sensenbrenner has said that very emphatically.
But there will be people who will read this in the light
that you and others have, and it seems to me the sensible thing
to do is to make that explicit and strong in the bill.
Mr. Scott. Okay. Let me ask another question. What is the
purpose of consulting with congressional leaders? Mr. Geyh
suggested that there is nothing inherently wrong with an I.G.,
but what is the deal about consulting with partisan
congressional leaders as to who it ought to be?
Mr. Rotunda. When Congress urged the president to appoint a
special prosecutor against Richard Nixon after Archibald Cox
resigned, the attorney general put in the regulation that it
would--they would appoint a special prosecutor after
consultation with senior leaders of the House and Senate
Judiciary Committees.
I don't think there is anything unconstitutional about
that, as long as the House and Senate don't--aren't the ones
appointing, because they have no appointing authority under our
Constitution. I thought it was a matter of kind of comity. I
don't think it is essential to the bill.
But it is not unconstitutional to talk. It is a free
country.
Mr. Scott. Well, yes, but to require the consultation, you
have to assume that it is going to have some influence on the
selection. Wouldn't the--if you can influence the selection of
who the I.G. is going to be, aren't you kind of influencing
which judges are going to be the ones investigated?
Mr. Rotunda. Well, advice is persuasive if it is wise. I
think----
Mr. Scott. Or if it is coercive.
Mr. Rotunda. I don't know how you are going to coerce the
chief justice. What can you do? I mean, what can you do to him,
really? So----
Mr. Scott. What should you do to him, I guess, would be
another--my time is just about up.
Let me ask one final question. I don't see--maybe I didn't
read it carefully. Is there subpoena power for this I.G. in
here?
Mr. Rotunda. I believe there is.
Mr. Hellman. Yes, it is.
Mr. Scott. There is?
Mr. Hellman. Section 1024.
Mr. Scott. Ten twenty-four?
Mr. Rotunda. Twenty-four three.
Mr. Scott. Okay.
Thank you, Mr. Chairman.
Mr. Coble. Thank you, Mr. Scott.
The distinguished gentleman from Ohio, Mr. Chabot?
Mr. Chabot. Thank you, Mr. Chairman. I have no questions at
this time. I want to thank you for holding this hearing,
however.
Mr. Coble. I thank you, sir.
The distinguished gentleman from Massachusetts, Mr.
Delahunt?
Mr. Delahunt. Thank you, Mr. Chairman.
This bill does not carry any criminal sanctions.
Mr. Rotunda. No.
Mr. Delahunt. I guess my query is to the chair, who is on
his way out, but what is this bill doing here?
Mr. Chabot, maybe you can answer that.
Mr. Chabot. No, Mr. Chabot can't answer that. I just got
here a few minutes ago.
Mr. Delahunt. Okay.
Mr. Chabot. I was in another hearing, and I am just holding
the chair. I am sure when Mr. Coble gets back here he will be
able to fully satisfy your questions.
Mr. Delahunt. No, I mean, it----
Mr. Scott. If the gentleman would yield----
Mr. Delahunt. Sure.
Mr. Scott. --I made a similar inquiry earlier, and----
Mr. Delahunt. Am I at the right Subcommittee? Is this the
Subcommittee on Crime? [Laughter.]
Mr. Scott. The answer was essentially that the bill is
here.
Mr. Delahunt. Okay. You know, I agree. I think there is
really a consensus from what I am hearing from academia as
represented by the three that language can be cleaned up. You
know, the appointment power can eliminate the consultative
process, and we can be clear as to the I.G. not being
implicated into rendering opinions on opinions, what have you.
I think it was you, Professor Hellman, that talked--or
maybe it was you, Professor Rotunda, that was talking about is
the sky falling. I am just uncertain as to the magnitude of the
perceived problem.
I think it was you, Professor Hellman, that talked about,
you know, erosion of the confidence of the American people in
the system. Well, I don't believe that is something that most
Americans wake up in the morning and are concerned about.
And I am not trying to minimize the fact that there might
be an issue there. But I guess where I am coming down is the
Breyer Committee--at least it is my understanding--is going to
issue a report some time in the fall. I can assure you that
this particular Committee will not be in a position to respond
before that.
But I would like to hear from representatives of the
Judicial Conference as to, first of all, the need, and then
their perspective and view as to what is necessary in terms of
meeting that need and what kind of a mechanism.
Professor?
Mr. Hellman. Thank you, Mr. Delahunt. I have two quick
responses to that. No, I don't think the sky is falling either
way, actually. But the--and it is certainly true that people
don't wake up in the morning thinking oh, my God, the
independent judiciary is doing all these terrible things, and
we have to do something about it.
But I do think there can be a subtle erosion of confidence,
and one of the reasons it can be a problem today perhaps more
than in the past is the amplifying effect of the media. We have
talk radio raising an issue, and then it gets talked about in
the blogs, and then the talk radio gets it again.
There are Web sites devoted to pursuing judges for alleged
misconduct.
Mr. Delahunt. Judicial Watch, et cetera. I don't disagree
with that, and I think that actually many of us in--some of us
in Congress are responsible for that, because I think it was
you, Professor Geyh, that talked about, you know, the term
``activist judges''--of course, that is--so much depends on the
perspective of the individual that--the perspective of what
activism is.
But this is not going to solve that issue.
Mr. Hellman. No, it is not going to solve that issue.
Mr. Delahunt. And I don't even think it will impact it
whatsoever.
Mr. Hellman. Well, that in a way was my second point, which
is that I regard this, as Professor Rotunda does, as a
relatively modest measure. But the other thing--I think you are
absolutely right about your larger point, which is that there
has been an escalation of rhetoric.
And I think it has been on both sides, where you have one
side looking at a--saying not just this is a bad decision, but
this is judicial activism run amok, and then on the other side
you have people saying this is--not just this is a bad piece of
legislation----
Mr. Delahunt. No, I----
Mr. Hellman. --the judiciary.
Mr. Delahunt. We are totally in agreement. I thought what
was interesting last night--in fact, I was discussing this
earlier today with my friend and colleague from Virginia--was a
recent Supreme Court decision relative to the no-knock issue.
And I noted that some of my colleagues on this side were
supporting legislation which would limit--would impose
limitations on funding for--pursuant to that particular
decision.
So while I would suggest that in the course of the past 4
years or 5 years we have been hearing from the more
conservative Members of Congress about their unhappiness with
what they perceive to be liberal activist judges, clearly it
will go the other way presumably with the advent of the Roberts
court.
And I just am one who believes in the most profound
protection for the independence of the judiciary even if I
happen to disagree with a particular opinion. That is just an
unsolicited observation.
Mr. Coble. I thank the gentleman from Massachusetts.
And I think Mr. Scott has one more question to put to the
panel.
Mr. Scott. I just wanted to ask Mr. Geyh--you mentioned the
authorization of an I.G. as one thing that could be done. Are
there other things that could be done?
Mr. Geyh. Well, the one thing that I would suggest is that
virtually every State in the United States links their
disciplinary process--their judiciaries do--to their code of
conduct.
And the confusion that surrounds a lot of these cases,
where you have got recusal problems or a pro se litigation
problem--not pro se litigation, excuse me; ex parte
communications--can be resolved if you just link the two.
I mean, I find, in other words, that you have this
elaborate code that tells us when it is inappropriate to engage
in ex parte contacts, when it is inappropriate to disqualify.
And there is--the Federal judiciary is alone among
judiciaries in not linking those two. I think one way to deal
with that is to amend, you know, the statute to instead of
saying judges should be disciplined for engaging in conduct
that is contrary to the administration of justice, this vague
standard that is currently there, to linking it to conduct that
violates their--the code of judicial conduct that they already
have in place.
Mr. Coble. I thank the gentleman.
In my opening statement, gentlemen, I--alluding to the
previous hearing that was mentioned earlier, I said we learned
from that hearing that the complaint process was largely
unpublicized and that transparency issues persisted.
I should have said and that a lack of transparency issues
persisted, just for the record.
We appreciate very much, gentlemen, your contribution
today. The Subcommittee will benefit from this, I am confident.
In order to ensure a full record and adequate consideration of
this important issue, the record will be left open for
additional submissions for 7 days.
Also, any written question that a Member wants to submit
should be submitted within the 7-day period.
Did you have something, Bobby?
Mr. Scott. Yes, I would like a letter from the Judicial
Conference of the United States--we didn't invite them, but
they did submit a letter to you, a copy to me, and I would like
this part of the record.
Mr. Coble. Without objection, it will be made a part of the
record.
[The letter follows in the Appendix.]
Mr. Coble. And this concludes the legislative hearing on
H.R. 5219, the Judicial Transparency and Ethics Enhancement Act
of 2006. Thank you for your cooperation and attendance.
And the Subcommittee stands adjourned.
[Whereupon, at 12:39 p.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Robert C. Scott, a Representative
in Congress from the State of Virginia, and Ranking Member,
Subcommittee on Crime, Terrorism, and Homeland Security
Thank you, Mr. Chairman. I'm pleased to join you in convening this
hearing on H.R. 5219, the ``Judicial Transparency and Ethics
Enhancement Act of 2006.''
I am in favor of Congress conducting regular oversight over the
administrative operations of the courts through reports, hearings, and
avenues of communication. And I'm in favor of the Congress authorizing,
not requiring, the Judicial Conference to appoint an inspector general
or other such official, to assist it in its efforts to reign in judges
who don't follow the rules, and to develop reports to be sent to
Congress and elsewhere the Conference might direct. But I am not in
favor of the Congress requiring the appointment of a Judiciary IG in
whose appointment it has a say and who reports to Congress as directed
or required by Congress. I believe that such a congressionally
influenced position would clearly offend traditional notions of
separation of powers and comity between the Legislative and Judiciary
Branches. Moreover, I believe the creation of such a position is
unnecessary.
If we are dissatisfied with the way the Judiciary is addressing
judicial discipline and other matters, we should notify Chief Justice
Roberts as you and Ranking Member Berman did with Chief Justice
Rehnquist when you were Chairman of the Courts Subcommittee, Mr.
Chairman, and give Chief Justice Roberts a chance to respond to us.
Granted, the reports of judges taking, and not reporting, lavish,
privately financed trips, and of judges not reporting conflicts of
interest as required, as well as failing to recuse themselves as
appropriate, are disturbing. While these matters require the Judicial
Conference's attention as well as our oversight attention, there are a
number of approaches available to the Congress to satisfy itself that
these issues are being appropriately addressed by the Judiciary, short
of establishing a Congressionally directed Judiciary Inspector General.
There is evidence the Judicial Conference is addressing the issues,
including the indications in its letter to us dated yesterday. If more
specific information is desired, perhaps a letter to the Chief Justice
requesting an update on the Conference's progress toward addressing the
issues and problems we are hearing about would be appropriate.
The Judicial Branch is certainly not the only branch with
disturbing reports of inappropriate privately financed trips and
conflicts of interest, and worse. There continues to be a number of
such reports regarding members of Congress, despite actions taken by
the Congress over the years to address the problems, including
establishing an Inspector General. While the Congress has an oversight
responsibility to see to it that the public resources it makes
available to the other branches are expended in a publicly accountable
and proper manner, oversight of the ethics of individual employees of
those branches is better left to the branches, short of the necessity
for use of Congress' impeachment powers.
With these reservations, Mr. Chairman, I look forward to the
testimony of our witnesses for their insight on the issues raised by
H.R. 5219. Thank you.
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan, and Ranking Member, Committee
on the Judiciary
Letter to the Honorable Howard Coble from Leonidas Ralph Mecham,
Secretary, Judicial Conference of the United States