Statement of
Michael J. Remington
before the
House Judiciary Subcommittee on
Courts, the Internet and Intellectual Property
on
“The Operations of Federal Judicial Misconduct and
Recusal Statutes”
November 29, 2001
By: Michael J. Remington
Partner
Drinker Biddle & Reath LLP
1500 K Street, N.W.
Suite 1100
Washington, D.C. 20005-1209
202-842-8839 (Telephone)
202-842-8465 (Facsimile)
remingmj@dbr.com (Email)Statement of
Michael J. Remington
SUMMARY
The Framers labored mightily over a system of checks and balances between the branches of the federal government. In our constitutional system, they designed impeachment to be the only check on the judicial branch by the legislature. In Federalist No. 79, Alexander Hamilton discussed the topic of judicial accountability, noting that impeachment “is the only provision on the point, which is consistent with the necessary independence of the judicial character . . . .” This, however, does not mean that the federal judiciary is precluded from self-regulation of judicial discipline, disability and ethics.
In my testimony, I cover four subjects: first, the need for affirmative and continuing congressional oversight of the judicial discipline statutes and methods; second, a brief assessment of the Judicial Discipline and Disability Act of 1980; third, a review of the recommendations of the National Commission on Judicial Discipline and Removal, with a focus on recommendations that have not been implemented; and fourth, a brief analysis of other judicial discipline methods or laws.
First, the Committee should exercise continuing and affirmative oversight of judicial discipline, judicial ethics and criminal prosecutions of federal judges. Oversight helps the Congress know how well the judiciary is generally doing with its self-administration of judicial discipline matters. Oversight also helps the judicial branch enforce judicial ethics and administer the 1980 Act so as to prevent conduct that could lead to discipline and impeachment.
Second, the 1980 Act has worked reasonably well. It has resulted in disciplinary sanctions in a number of situations while passing constitutional muster. However, the public and practicing bar are largely unaware of the Act.
Third, the National Commission issued its final report in 1993. Some of its recommendations have been implemented, particularly by the judicial branch of government. However, several recommendations have appeared to fall through the cracks between and amongst the three branches. Before it acts on judicial discipline reforms, the Committee should examine whether any of the National Commission’s recommendations have continuing merit, necessitating statutory or administrative implementation.
Fourth, an understanding of the operations of our federal judicial misconduct statutes also requires an understanding of informal methods of judicial discipline, judicial disqualification and recusal, judicial ethics, the ability of judges through privately-funded judicial educational programs to be exposed to competing views and arguments, and the appointments process.
In conclusion, judicial independence and judicial accountability are not mutually exclusive. In a time of turmoil and terror, Congress must ensure that the operation of judicial misconduct and recusal statutes and its own impeachment authority work well.
Statement of
Michael J. Remington
before the
House Judiciary Subcommittee on
Courts, the Internet and Intellectual Property
on
“The Operations of Federal Judicial Misconduct and
Recusal Statutes”
November 29, 2001
Mr. Chairman, I appreciate the opportunity to testify before the Subcommittee on the important subject of “the operations of federal judicial misconduct and recusal statutes.” In a time of terrorism and turmoil, the functioning of our institutions of government is critically important. The federal judicial branch that has served this nation so well for so long cannot be taken for granted. An independent federal judiciary, which resolves not only constitutional questions but also statutory controversies arising from this country’s criminal, antitrust, environmental and intellectual property laws, to name a few, is a strong judiciary. But it must also be an accountable and impartial judiciary that maintains the highest ethical standards.
By way of personal background, I was a counsel to this Subcommittee for nearly thirteen years, and I served as its Chief Counsel from 1983 until 1990. I previously served as a prosecutor in the U.S. Department of Justice and as Deputy Legislative Affairs Officer in the Administrative Office of the U.S. Courts. I left the committee staff in early 1991 to become Director of the National Commission on Judicial Discipline and Removal (“National Commission”) where I served for 18 months.
I currently am a partner in the law firm of Drinker Biddle & Reath LLP where I co-chair the firm’s intellectual property group. I am also an adjunct faculty member at two local-area law schools: Catholic University’s Columbus School of Law (where I teach legislation) and George Mason University School of Law (where I teach copyright). I have no client interests in the matters before the Subcommittee this morning. This is my first formal appearance as a witness before the Subcommittee.
Permit me to make a personal observation at the outset. I routinely follow the operations and activities of the Subcommittee, and I am impressed beyond measure by your stewardship, Mr. Chairman, and that of the Ranking Minority Member, Mr. Berman, and by the leadership of the full committee under Chairman Sensenbrenner and the Ranking Minority Member, Mr. Conyers. The Subcommittee and the full Committee are in good hands.
You may be interested in knowing that my last legislative testimony on the subject before you was in Islamabad, Pakistan, before a joint session of staff and members of the Pakistan Senate and National Assembly. On behalf of The Asia Foundation, I discussed parallel subjects of judicial and legislative independence. As we speak, these issues are of increasing importance worldwide.
Two days before his untimely passing in 1996, I was fortunate enough to be with Hamilton Fish, the former ranking member of this Committee and member (while a Member of Congress) of the National Commission. Mr. Fish was a key and conscientious contributor, along with the former chairman of the Subcommittee, Robert W. Kastenmeier, who served as chair of the National Commission after his retirement. Among other items on his mind, Mr. Fish wanted an update on implementation of the National Commission’s recommendations. This hearing would please Mr. Fish. I recently spoke with Bob Kastenmeier who not only sends his best greetings to the Subcommittee but underlines the importance of the subject being scrutinized.
I. BACKGROUND
Not long ago, in June of 1986, this Subcommittee was referred Chairman Sensenbrenner’s impeachment resolution, and was obliged to drop all other legislative business in order to hold a hearing into the conduct of Judge Harry E. Claiborne (a judge of the United States District Court of Nevada who had been convicted of two felonies and was incarcerated at the time) and to draft articles of impeachment. Almost four months later, on October 9, 1986, the United States Senate removed Judge Claiborne from office.
This Subcommittee crafted - with the cooperation of the federal judiciary and then Chief Justice Warren E. Burger - the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 (the “Act” or “1980 Act”). The Act was the product of extensive dialogue between the legislative and judicial branches of government. Congress made its concern evident to the judiciary that there be in place a formal and credible supplement to the impeachment process for resolving complaints of misconduct or disability brought against federal judges, while the judiciary revealed to Congress its concern that any such system not prove to be a cure worse than the disease.
In 1986, Senate Majority Leader Robert Dole, in the wake of the Claiborne impeachment and removal proceedings, proposed the statutory establishment of a study group to examine the scope of the problem of judicial discipline and impeachment. A similar proposal was introduced in early 1990 by Chairman Kastenmeier and Ranking Member Carlos Moorhead. The measure passed both the House and Senate in late October, and was signed by President George Bush on December 1, 1990. By that time, two other federal judges had been impeached (and removed from office) and two others prosecuted for violation of the federal criminal laws.
In my testimony, I will cover four issues: first, the need for affirmative and continuing oversight of judicial discipline statutes and methods; second, a brief assessment of the 1980 Act; third, a review of the recommendations of the National Commission, with a status update; and, fourth, a brief analysis of other judicial discipline methods and laws.
II. OVERSIGHT
As you know, the Rules of the House of Representatives require each standing committee to “. . . review and study on a continuing basis, the application, administration, execution, and effectiveness of laws and programs addressing subjects within its jurisdiction . . . .” Rule X, clause 2, 107th Congress. In addition, each committee is further required continually, not just periodically, to review and study the operation of federal entities which have authority over laws within the Committee’s jurisdiction, any conditions or circumstances that may indicate the desirability of enacting new or additional legislation, and to undertake future research and forecasting on matters within the Committee’s jurisdiction.
The importance of oversight is uncontestable because it assists the Congress in understanding how particular laws are being implemented and how government programs are being administered. Effective oversight is also very useful for government officials responsible for administering programs because it gives them an opportunity to explain and justify their decisions and priorities. It also gives them the chance to hear the views, including criticism, of Members of Congress who control their budgets and can rewrite legislation. Oversight involves two-way communications designed to identify any subjects that could become serious problems, and then attempts to resolve differences. Because it instills appreciation of each other’s processes and problems, oversight improves inter-branch relations.
As compared to other standing committees, the Judiciary Committee does not have a subcommittee with overall oversight responsibility. Rather, oversight is often exercised by the specific subcommittees. Historically, this Subcommittee has been very diligent in exercising its oversight responsibilities, including over the federal judicial branch of government. And the judicial branch generally is receptive to that oversight. A representative of the Judicial Conference specifically referenced this Subcommittee, stating that the Conference “has thoroughly cooperated in that oversight - and in fact has repeatedly sought and is now seeking more of it.” Upon enactment of the 1980 Act, this Subcommittee was specifically requested to exercise oversight of judicial discipline. For example, Representative Caldwell Butler stated: “I would like to impress on my colleagues the importance of conducting congressional oversight in this most sensitive area.” On behalf of the Subcommittee, Chairman Kastenmeier promised “vigorous” oversight. He kept his promise. Periodic oversight was instrumental in reform by the judicial branch of rules promulgated to govern proceedings under the 1980 Act (the Illustrative Rules Governing Complaints of Judicial Misconduct and Disability), and led to statutory amendments to the Act in 1988 and 1990. This oversight hearing is part of that continuum.
Not without controversy and debate, the National Commission specifically considered the issue of oversight of judicial discipline and confirmed that the “House Committee on the Judiciary, within its jurisdiction, [should] exercise periodic oversight of judicial discipline, judicial ethics, and criminal prosecutions of federal judges.” In the view of the Commission, congressional oversight will help the judicial branch enforce judicial ethics (including judicial disqualification and recusal) and administer the 1980 Act so as to prevent conditions that could lead to discipline and impeachment. In this regard, oversight will promote judicial accountability. It will also help the legislative branch to understand how well the judiciary is generally doing with its self-administration of judicial discipline matters. That understanding will protect judicial independence by reducing the possibility that the Congress might enact a different disciplinary scheme.
A key aspect of oversight of judicial discipline is written into 28 U.S.C. § 604(h)(2), where the Director of the Administrative Office of the U.S. Courts must include in his annual report a summary of judicial discipline and disability complaints, “indicating the general nature of such complaints in which action has been taken.” Without the Director’s annual reports, it is very difficult to assess the functioning of the 1980 Act.
Also, oversight of the U.S. Department of Justice can be very useful. In the five prosecutions of federal judges in the 1980s, there was apparently no timely communication to enable the House to have any meaningful say in the decision that criminal prosecution would precede impeachment. Congress was surprised by the prosecutions. The communication problems should change, as the Commission recommends. In addition, explicit and implicit commitments were made during impeachment trials to examine alleged prosecutorial misconduct in the criminal cases of the federal judges. Oversight can be helpful in such matters to assure the Congress that its own impeachment powers are not being manipulated improperly, and to develop a mechanism for communication between the House and the Department.
As part of its oversight, the Subcommittee should receive testimony from representatives of the judicial and executive branches. To promote its understanding of the functioning of the judicial misconduct statutes, the Subcommittee should also engage in informal meetings with high-level representatives of the other two branches.
III. THE 1980 ACT
The U.S. Constitution provides that federal judges shall “hold their Offices during good Behavior,” and shall receive a Compensation “which shall not be diminished during their Continuance in Office.” Art. III, § 1. These words alongside the Impeachment Clauses represent the entire constitutional structure for addressing issues of judicial discipline, disability, removal, and compensation. The Framers worked long and hard over the system of checks and balances within the federal government. They designed impeachment as the only check on the judicial branch of government. In Federalist No. 79, Alexander Hamilton discussed the subject of judicial accountability:
“The precautions for their responsibility are comprised in the article respecting impeachments. They are liable to be impeached for mal-conduct by the House of Representatives, and tried by the Senate, and if convicted, may be dismissed from office and disqualified for holding any other. This is the only provision on the point, which is consistent with the necessary independence of the judicial character, and is the only one which we find in our own constitution in respect to our own judges” (emphasis added).
Until 1980, the law of judicial discipline was largely the law of impeachment.
The 1980 Act recognized that judicial independence and public accountability are not mutually exclusive. Prior to enactment, one highly respected federal judge (the Honorable Frank M. Johnson, Jr.) noted: “judicial independence must incorporate some notion of accountability.” The 1980 Act satisfied constitutional parameters by asking the judiciary to self-regulate and by reserving removal authority to the House and Senate. The Act establishes procedures and a mechanism within the judicial branch to consider and respond to complaints against judges. Most complaints are handled initially by the chief judges of the circuits and then by the judicial councils of the circuits, but when impeachable offenses are identified, the councils and the Judicial Conference are empowered to refer the matter directly to Congress.
A. Circuit Councils. Section 332 of title 28, United States Code, provides that each circuit shall have a judicial council. The circuit councils are the workhorses of federal judicial administration. Historically, the councils were the handiwork of Chief Justice Charles Evans Hughes, who had the active support of the Chairman of this Committee, Representative Hatton Sumners, whose portrait adorns this room’s walls. Chairman Sumners had been a manager in the lengthy impeachment trail in 1936 of Judge Halstead Ritter. Based on his experience, Chairman Sumners concluded that there had to be a better mechanism to discipline federal judges. The result was the establishment of a decentralized entity with broad administrative authority and responsibility.
As regards judicial discipline, however, the councils did not fulfill their original vision. When a case involving the authority of a circuit council to discipline a judge finally reached the U.S. Supreme Court, the Court found statutory language concerning the council’s power to be ambiguous. Chandler v. Judicial Council of the Tenth Circuit, 398 U.S. 74 (1970). In an important footnote, Chief Justice Warren E. Burger supported the concept of statutorily granting the councils, as administrative bodies, broadened enforcement authority with clarification of procedures to review council orders. Id. at 85, n. 6.
That is exactly what happened in 1980 when Congress enlarged the authority of the councils to include judicial discipline and disability and established a review mechanism within the judiciary. Congress opted against the establishment of an independent “judicial misconduct and tenure” commission with delegation of the removal function to the commission (which was thought to be of dubious constitutionality).
B. Judicial Discipline. Section 372(c) of title 28, United States Code, sets forth a way for any person to complain about a federal judge who the person believes “has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts” or “is unable to discharge all the duties of office by reason of mental or physical disability.” Subsection (c) also provides a procedure for the handling of such complaints and permits the councils to adopt rules for the consideration of complaints. The statutory scheme creates a tiered response within the judiciary for responses to complaints, with authority residing initially in the chief judge of the circuit (who can dismiss complaints and even fashion a complaint, if one has not been filed), with assignment to special committees, if necessary, to investigate complaints, then review by the circuit council and ultimately the Judicial Conference in the most serious cases. The list of sanctions set forth in the statute includes: ordering, on a temporary basis, no further assignment of cases; censoring or reprimanding by private communication; censoring or reprimanding by public announcement; certifying a disability; requesting a voluntary retirement; and such other action as the council considers appropriate (except removal from office of a lifetime-tenured judge).
In crafting the 1980 Act, this Subcommittee took extra steps to ensure its constitutionality. The Subcommittee received extensive testimony, and requested and reviewed a study of the American Law Division of the Library of Congress on the subject. The House Committee Report had a special section on constitutionality. See H. Rep. No. 1313, 96th Cong., 2nd Sess. (1980). The Senate requested its own analysis and debated the subject at some length on the Senate floor.
Every court that has adjudicated cases challenging the Act has found that it passes constitutional muster. In 1986, the 11th Circuit found that the statute, far from being an unconstitutional encroachment on the autonomy of the federal judiciary, strengthened the independence of the judicial branch as a whole. In re Certain Complaints Under Investigation, 783 F. 2d 1488, 1507 (11th Cir. 1986), cert. denied, 106 S. Ct. 3273. Recently, the D.C. Circuit held that Article III of the Constitution does not clothe federal judges with absolute immunity from lesser sanctions (from public reprimand to taking cases away) contemplated by the 1980 Act. See McBryde v. Committee to Review Circuit Council Conduct and Disability Orders of the Judicial Conference of the United States, 2001 U.S. App. LEXIS 20843 (Sept. 21, 2001).
IV. THE NATIONAL COMMISSION
A. Background about the Commission. In 1990, Congress assigned three duties to the National Commission: (1) to investigate and study problems and issues related to the discipline and removal from office of lifetime-tenured federal judges; (2) to evaluate the advisability of proposing alternatives to current arrangements for responding to any identified problems and issues; and (3) to submit to Congress, the Chief Justice and the President a report of its findings and recommendations. The Commission was not given authority to make recommendations regarding the judicial appointments process.
In 1991, following selection and appointment of the thirteen commissioners by all appointing authorities, Bob Kastenmeier was selected Chairman. The Commission formally commenced its work in early 1992, reviewing presentations concerning historical, constitutional, and current perspectives on judicial discipline and the removal of life-tenured judges from office, and developing a general plan for identifying policy questions genuinely in need of review. The Commission arranged for consultancy studies individually designed to explain existing laws, policies, perceptions, and the historical background. In addition, major contributions to the research effort were made by two entities within this Subcommittee’s oversight jurisdiction, the Federal Judicial Center and the State Justice Institute. Further, the Library of Congress Law Library prepared a report on the removal and discipline of judges in twenty-six countries and five international judicial organizations. Finally, a number of highly respected law firms contributed to the research efforts. A list of the studies, many of which have lasting value, is attached as Appendix I. Several were used during the impeachment proceedings of President Clinton.
The Commission also held public hearings, receiving testimony from more than thirty witnesses, including a Congressman (Rep. Don Edwards of California, who had served as a House Manager), a former Senator who had served as a Senate Trial Committee chairman in recent impeachments (Charles McC. Mathias), four additional Representatives with developed views about the House’s impeachment role (Representative Applegate, Representative Field, Representative Hyde, and Representative Sangmeister), two Senators who had served on Trial Committees (Senator Rudman and Senator Levin), the Senate author of a constitutional amendment (Senator Thurmond), attorneys who had served either Congress or judges in impeachment proceedings, a Deputy Attorney General of the United States, and representatives of concerned public interest organizations. A Roundtable Discussion of constitutional issues related to discipline and removal of life-tenured federal judges was conducted by four constitutional law professors and a constitutional historian.
After a series of public meetings, the Commission issued a draft report and tentative recommendations which were subjected to three further days of hearings. On August 2, 1993, the National Commission issued its final report. See Report of the National Commission on Judicial Discipline & Removal (August 1993) (“Report”).
B. The U.S. Supreme Court’s decision in United States v. Nixon. While the Commission was conducting its inquiry, on January 13, 1993, in Nixon v. United States, 506 U.S. 224 (1993), the United States Supreme Court upheld the Senate’s authority to determine the method it uses for conducting impeachment trials, concluding that the challenge to the Senate’s use of a Rule XI committee by former Judge Nixon was not judicially reviewable. The decision underlined a textual commitment in the Constitution regarding assignment of “sole” impeachment authority to the House (to accuse) and the Senate (to judge). Writing for the Court, Chief Justice Rehnquist stated that “judicial involvement in impeachment proceedings, even if only for purposes of judicial review, is counterintuitive because it would eviscerate the ‘important constitutional check’ placed on the judiciary by the Framers.” 506 U.S. at 235. The House of Representatives should be mindful of the Nixon decision because in exercising its sole power to indict a federal judge for violation of the “good behavior” clause of the Constitution, judicial review is not possible unless a textual provision of the Constitution is violated.
C. Report and Recommendations. Permit a brief summary of what I consider to be the more significant recommendations and conclusions of the National Commission. All the recommendations and conclusions, with an implementation update, are set forth in Appendix II. Despite the fact that I am testifying in my own capacity, I have no reason to criticize any of the National Commission’s recommendations. In fact, I readily embrace them.
1. Constitutional Questions. First, the National Commission concluded that removal from office of judges who serve on good behavior under Article III by means other than impeachment and conviction would require a constitutional amendment. None of the Commission’s recommendations contemplated any constitutional revisions. The reason is that none was deemed necessary. In the final analysis, the Commission did not find that the House and Senate should be relieved of the power and responsibility to make an independent political judgment about the fitness of a federal judge to remain in office.
[Status: no constitutional amendments to federal judicial discipline arrangements have been ratified.]
Having found the discipline and removal system not broken beyond repair, requiring a constitutional restructuring, the Commission nonetheless identified a good number of statutory, rule and administrative reforms that should occur within, among and between the three branches of the federal government. However, the Commission concluded that if current arrangements become wholly inadequate and incapable of consequential improvements, radical reforms should be seriously contemplated. But having carefully considered the relevant mechanisms of the three branches, the Commission also concluded that substantial improvements are possible, and its recommendations are crafted to achieve that end.
The American Bar Association, which established a special task force to monitor and evaluate the work of the National Commission, concurred with the Commission’s overall views and adopted a policy in favor of the 1980 Act. In a 1997 report on “An Independent Judiciary,” the ABA Commission on Separation of Powers and Judicial Independence noted that Congress had not been sufficiently apprised of the Report of the National Commission and that hearings (such as this one) should be held to consider appropriate response to problems in the judicial discipline and removal arena. This should be done before consideration of any proposals for additional legislation or constitutional amendments in the area of judicial discipline.
Mr. Chairman, it took almost two centuries of American history to create a judicial discipline mechanism; eight years after the National Commission’s Report is a blink of an historical eye.
2. The Legislative Branch. When the situation presents itself, the House of Representatives should give serious thought to expediting the impeachment process, through acting prior to prosecution of a judge or immediately after conviction. Before the criminal trial of a federal judge, the House and the Justice Department should consult each other to determine together whether impeachment should precede the criminal trial. Subject to statutory and rules exceptions, the House should expeditiously obtain relevant wiretap and grand jury information relating to the possible House impeachment and Senate trial of a federal judge.
In addition to conducting oversight, the Commission recognized the key role that this Committee plays in the impeachment process and recommended that:
· The Committee acknowledge every judicial discipline complaint. The Committee should continue to keep a record of the number and nature of these complaints, and report these data in its summary of activities. In serious cases involving potentially impeachable conduct, the Committee should engage in an inquiry or solicit the assistance of the Justice Department in such an inquiry;
· The House should ensure that the Committee has the resources necessary to deal with judicial discipline matters, and the resources and institutional memory necessary to handle impeachment cases as they arise; and
· The Committee routinely receive from the Administrative Office all final orders and accompanying memoranda required by the 1980 Act to be publicly available.
[Status: although the Committee has exercised its oversight authority and has maintained the resources necessary to deal with judicial discipline and impeachment matters, it has not systematized its handling of judicial discipline complaints. It also has not routinely received publicly available information from the Administrative Office.]
Again, when circumstances present themselves, given the wide latitude that the Senate has to develop and implement impeachment trial procedures, the Senate should consider experimenting with a variety of delegation approaches (including use of masters) to simplify issues prior to any removal trial. Further, the Senate should consider the establishment of a standard of proof in impeachment trials. Moreover, the Senate should consider amending its Impeachment Rules to permit a Rule XI Committee (trial committee) to make proposed findings of fact and recommendations to the Senate on articles of impeachment involving federal judges. Finally, following conviction of a federal judge in a Senate impeachment trial, the Senate should always decide whether to disqualify the judge from future public office.
[Status: because the Senate has not faced a judicial impeachment since issuance of the Report, it has given little consideration to the Commission’s recommendations.]
One recommendation was directed to the Congress. When prosecution and conviction of a federal judge occur first, the facts that were necessarily found in the criminal conviction should be used by Congress so as to make impeachment proceedings or a Senate trial more efficient.
[Status: because no judicial impeachments have taken place since issuance of the Report, this recommendation has not been implemented.]
3. The Executive Branch. The Commission concluded that the Department of Justice should promulgate guidelines and procedures for government litigators and U.S. Attorney's offices regarding the circumstances under and the manner in which the mechanisms of the 1980 Act are utilized. Furthermore, the Department of Justice should issue explicit guidelines and procedures for the investigation and prosecution of federal judges, and that these guidelines and procedures require the approval of the Attorney General for full-scale investigations and intrusive investigative techniques.
[Status: based on information and belief, the Department of Justice has not implemented the Commission’s recommendations. In any event, the Committee should as part of its oversight inquire of the Department whether it has improved its internal procedures regarding the prosecution of sitting federal judges.]
4. The Judicial Branch. Numerous Commission recommendations were made to the judicial branch. The Illustrative Rules should be revised in certain regards, and then adopted by the circuit councils. Discipline under the 1980 Act should be possible for a judge's delay in decision-making but only in unusual circumstances such as habitual failure to decide matters in a timely fashion. Circuit chief judges and circuit councils should refer non-frivolous criminal allegations to prosecutors or this Committee. The ethics code for federal judges should be amended to expressly prohibit judicial misconduct reflecting or implementing bias on the basis of race, sex, sexual orientation, religion, or ethnic or national origin, including sexual harassment; and such misbehavior should be subject to discipline under the 1980 Act unless it is “merits-related.” Each judicial circuit council should appoint a committee (whose membership would include non-judges) to serve as a filter and conduit for serious complaints against federal judges. Orders dismissing complaints against judges should contain more information than they now usually contain. A body of precedents should be developed in the field of judicial discipline. The Judicial Conference and circuit councils should consider adoption of judicial evaluation programs. Finally, the Supreme Court should consider adopting policies and procedures for filing and disposing of complaints against Supreme Court Justices.
[Status: a majority of the recommendations directed at the judicial branch have been implemented administratively, but several have not including the appointment of committees before the circuit councils to screen complaints, amendments to the ethics code to prohibit various forms of discrimination or harassment, and a self-reporting rule for judges who have been indicted, arrested, or informed that they are the target of a federal or state criminal investigation.]
5. Legislative recommendations. The National Commission made only a handful of recommendations for legislative action:
· Provide that section 201 of Title 18, United States Code, be amended to make clear that it does not authorize the removal of any lifetime-tenured judicial officer. [Status: not enacted.]
· Enact a statute to provide that a judge who has been convicted of a felony shall not hear or decide cases unless the appropriate circuit council determines otherwise. [Status: not enacted.]
· Provide that, upon conviction of a felony, a federal judge should cease to accrue credit, through age of years of service, towards retirement (under the rule of 80). [Status: Judicial Conference passed a resolution to this effect, but not enacted.]
· Amend section 332 of Title 28, United States Code, to require each circuit council to report annually to the Administrative Office the number and nature of orders entered thereunder that relate to judicial misconduct or disability (including delay). [Status: enacted as an amendment to 28 U.S.C. § 332(g).]
· Amend section 372 of Title 28, United States Code, to include as an additional ground of dismissal by a chief judge that the allegations in a complaint have been shown to be plainly untrue or incapable of being established through investigation. [Status: implemented administratively as an amendment to the Illustrative Rules.]
· Amend the public disclosure requirements under federal law to require a federal judge either (1) to certify that, to the best of his or her knowledge, information and belief, the judge does not, except as permitted by Canon 2(c), hold membership in any organization that practices invidious discrimination on the basis or race, sex, religion, or national origin, or (2) to list all organizations not exempted by Canon 2(c) of which the judge is a member. [Status: not enacted.]
V. OTHER JUDICIAL DISCIPLINE METHODS AND LAWS
A. Informal Methods of Judicial Discipline. Section 332 permits the circuit councils, through their respective chief judges, to employ informal methods of resolving problems. This authority is traditional, not textual. Informal action “has been and remains the judiciary’s most common response to episodes of judicial misconduct.” See Geyh, Charles Gardner, Informal Methods of Judicial Discipline, 142 U. Penn. L. Rev. 243, 280 (1993). Professor Geyh, a former counsel to this Committee, also identifies two further devices with disciplinary implications: (1) appeal and mandamus; and (2) peer influence. Appeal and mandamus are relatively weak tools to address judicial misconduct because they are applied on a case-by-case basis and do not appear to be sanctions. Peer pressure may be effective but is largely invisible to the public eye. Nonetheless, an understanding of these informal processes is essential to a fuller understanding of judicial discipline.
B. Judicial Disqualification and Recusal. An individual’s right to have a case heard before an impartial judge is protected by the Due Process Clause of the Fifth Amendment and sections 144 and 455 of title 28, United States Code. These constitutional and statutory provisions enable litigants to request that a judge recuse himself or herself on counts of bias of conflict of interest.
Section 144 authorizes a litigant to disqualify a judge by filing a timely and “sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against [the litigant] or in favor of any adverse party.” In comparison, section 455 provides that a judge must “disqualify” himself or herself from any proceeding in which the judge’s impartiality might reasonably be questioned or in any case in which the judge, or members of his or her family, are parties to the case or have a financial interest in a party to the case. Although the standards for a finding of bias or partiality would appear easy to meet, they are not. Recusal appears to be rare, and reversal of a refusal to recuse is even rarer. Inherent in these statutes’ requirements that a judge disqualify or recuse if bias or partiality reasonably may be questioned is a fundamental principle that our justice system must satisfy an appearance of justice.
As compared to judicial discipline which is administered by the relevant circuit council and the Judicial Conference, judicial recusal is determined on a case-by-case basis by individual federal judges. An understanding of how well section 144 and section 455 are working requires an analysis of the case law. It is my understanding that the Federal Judicial Center will soon be releasing a descriptive monograph on federal case law interpreting the judicial disqualification statutes. I recommend that the Subcommittee examine this monograph very closely, and if further prescriptive research is necessary, that the Subcommittee request the Center to do so.
C. Judicial Ethics. Federal judges must satisfy exacting ethical standards regarding personal finances. The Ethics in Government Act of 1978, as amended, requires all judges to file personal financial reports containing a full statement of assets, income, and liabilities as well as those of spouses and dependent children. Pub. L. No. 95-521, 92 Stat., 1824, 1851-61. The reports are to be made available to the public. However, to the best of my knowledge, the judges’ financial disclosure forms are extremely difficult to obtain. As regards judicial officers, the Act is administered by the Judicial Conference which has established a Judicial Ethics Committee to assist. In past years, this Subcommittee has conducted continuing oversight of the Judicial Ethics Committee. I am honored to appear on a panel with the Chairman of that Committee.
D. Review of Judicial Education and Training Programs. After the media reported stories after federal judges’ attendance at expense-paid educational seminars whose sponsors accept funding from corporate foundations and other entities with a potential interest in the outcome of federal litigation involving topics covered by the seminar, judicial education became a hot topic. A legislative proposal was introduced in the Senate to create an administrative mechanism within the judicial branch to review judicial education and training programs attended by federal judges. See S. 2990 (Kerry/Feingold), 106th Cong., 2nd Sess. (2000), the Judicial Education Reform Act of 2000. Although it contains exceptions, S. 2990 essentially bans privately-funded seminars by prohibiting judges from accepting private seminars as gifts. The legislation also creates a Judicial Education Fund and delegates authority to the Board of the Federal Judicial Center to approve seminars. Information about any seminar must be posted on the Internet, and the Judicial Conference is authorized to promulgate guidelines for the Center’s approval process.
In my opinion, such legislation is not sound public policy. If individuals appointed by the President and confirmed by the Senate can be entrusted with lifetime tenure and Article III authority, they certainly can be entrusted with the responsibility of choosing educational seminars and programs. “Judges are continually exposed to competing views and arguments and are trained to weigh them.” The proposal implicates (negatively, I believe) academic freedom and First Amendment rights. The education of judges serves the public interest. That a lecture or seminar espouses a particular viewpoint (conservative, liberal, or libertarian) should not preclude a judge from attending.
However, judges should routinely consider the propriety of attending all expense paid seminars, including any appearance of impropriety. Payment of tuition, reimbursement of expenses, and the overall value of the gift that accrues from attendance at privately-funded seminars must be timely and accurately disclosed by judges. Attendance at a seminar funded by an entity with a direct or significant interest in matters before the judge strikes me as improper. Judicial ethics rules require judges, prior to attending any privately-funded seminar, to investigate the sponsors and funding sources for the seminar. Oversight hearings like this one should shine light on judges who fail to do so. The Judicial Conference’s Codes of Conduct Committee routinely entertains requests for advice from individual judges and provides guidance on a case-by-case basis. If abuses occur (e.g., a failure to report or an unwillingness to take the Committee’s advice), resort should be made to the chief judge of the appropriate circuit pursuant to the 1980 discipline Act.
The federal judiciary has a Federal Judicial Center that is legislatively assigned the role of providing educational programs for judges on a wide variety of subjects. Judicial education by a public institution is particularly important for newly-appointed judges in areas about which they know little. In my opinion, the Center is one of the jewels in the judiciary’s crown. To reduce the lure of non-government seminars at resort locations, the Subcommittee may wish to encourage the Appropriations Committee to augment the Center’s budget so that more in-house educational programs can be presented.
E. The Appointments Process. A final word should be said about the appointments process which serves as the first line of defense against the corrupt, incapable, biased or intemperate judge. By requiring presidential nomination with the advice and consent of the Senate for the confirmation of lifetime-tenured judges, the Constitution is rooted in the proposition that only the most qualified and respected members of the legal profession should be appointed as federal judges. There is really no excuse for the appointment of individuals who are likely to engage in judicial misbehavior on the bench.
VI. CONCLUSION
In conclusion, our system of judicial misconduct and disability appears to be working tolerably well. I commend the Committee for conducting an oversight hearing on the operations of federal judicial misconduct statutes. In determining which path to take based on your oversight, please remember the constitutional counterweight of judicial independence. In difficult times, the judiciary is a rock of stability. Please also remember that judicial independence must accommodate some notion of accountability. An independent judiciary is an impartial judiciary. The Hamiltonian concern for protecting the judiciary from the other two branches provides a strong argument for effective disciplinary procedures, short of impeachment, within the judicial branch. Towards this end, permit me to leave you with the following recommendations:
· Committee Oversight. Continue your vigorous oversight of judicial independence and accountability by hearing from representatives of the U.S. Department of Justice and high-ranking judicial officers.
· Assess why the Justice Department did not implement the National Commission’s recommendations.
· Assess why the federal judicial branch did not implement various Commission recommendations, and particularly, why the Administrative Office of the U.S. Courts does not make available to the Committee all final orders and accompanying memorandum required by the 1980 Act to be publicly available, and why the judicial branch is so hesitant to make information publicly available about the 1980 Act.
· Institutional Resources of the House Committee on the Judiciary. Consider and acknowledge every judicial discipline complaint and keep a record of complaints; maintain the resources necessary to deal with judicial discipline and impeachment matters; and review all final orders required by the 1980 Act to be publicly available.
· Legislative Proposal. Draft legislation to provide that, upon conviction of a felony, a federal judicial should cease to accrue credit, through age or years of service, towards retirement, and that a judge who has been convicted of a felony not hear or decide cases unless the appropriate circuit council determines otherwise, and to implement other Commission legislative recommendations.
· Public Accountability of Financial Disclosure Forms. Conduct an investigation of the availability to the public of judges’ financial disclosure forms, and the accuracy of those forms.
· Judicial Recusal. Review the impending Federal Judicial Center descriptive monograph on the functioning of the judicial disqualification and recusal statutes, and, if necessary, receive a special briefing by the Center and ask that further prescriptive research be undertaken.
· Systematic Evaluation of the 1980 Act. Request the federal judiciary to update a previous study that was undertaken in June 1992 to assess whether the Act was working as intended and whether sufficient information is available to the public and Congress to permit meaningful oversight.
Fast forward a couple of years as trials are being conducted against terrorists, or appeals are being heard in such cases, and ask yourself whether you want a strong, and independent judiciary that maintains that highest level of ethics and conduct, one that is fearless and incorruptible. I hope that my institutional memory, the Report and research papers of the National Commission, and my testimony will assist your answer to this question as well as your consideration of the other important issues before you.
Mr. Chairman, I am available to answer any questions that you or Members of the Subcommittee might have.
APPENDIX I
NATIONAL COMMISSION ON JUDICIAL DISCIPLINE AND REMOVAL
CONSULTANTS’ REPORTS
I. CONSTITUTIONAL ISSUES
Peter M. Shane, “Who May Discipline or Remove Federal Judges?”
II. LEGISLATIVE BRANCH ISSUES
Warren S. Grimes, “The Role of the United States House of Representatives in Proceedings to Impeach and Remove Federal Judges.”
Michael J. Gerhardt, “The Senator’s Process for Removing Federal Judges.”
III. EXECUTIVE BRANCH ISSUES
Todd D. Peterson, “The Role of the Executive Branch in the Discipline and Removal of Federal Judges.”
IV. JUDICIAL BRANCH ISSUES
Richard L. Marcus, “Who Should Regulate Federal Judges, and How?”
Jeffrey L. Barr & Thomas E. Willging (Federal Judicial Center), “Administration of the Federal Judicial Conduct and Disability Act of 1980.”
Charles S. Geyh, “Means of Judicial Discipline Other Than Those Prescribed by the Judicial Discipline Statute, 28 U.S.C. Section 372(c).”
Beth Nolan, “The Role of Judicial Ethics in the Discipline and Removal of Federal Judges.”
Abe Krash, James S. Portnoy, Erica Frohman Plave & Sarah Kahn Saunder, “Memorandum Concerning the Constitutionality of Canons 2(c), 3(a)(6), 4(a) and 7 of the Code of Judicial Misconduct.”
William Slate, II, “Surveys of Knowledge and Satisfaction of Federal Judicial Discipline and Removal Mechanisms and Processes.”
Emily Van Tassel, “The History of Federal Judicial Tenure, 1789-1979.”
Dan M. McGill, “Disincentives to Resignation of Disciplined Federal Judges in the Benefits Package of the Federal Judiciary.”
Ernest Gellhorn, Kathryn M. Fenton, Barbara McDowell & J. Peter Wang, Judicial Discipline and Removal: The Experience of Article I Courts.
V. RELATED SPECIAL REPORTS
Elizabeth Bazan, “Disqualification of Federal Judges Convicted of Bribery - An Examination of the Act of April 30, 1790 and Related Issues.”
Jerome Marcus, “The 1790 Statute and Control of a Judge’s Tenure in Office.”
Timothy R. Murphy, “The Effects of Criminal Prosecution of State Judges on State Judicial Disciplinary Proceedings.”
William Slate, II & Lucy G. White (Justice Research Institute), “New Paradigms of Judicial Discipline: Application of Foreign Models in the American System.”
Library of Congress, “Judicial Tenure: Removal and Discipline in Selected Foreign Countries.”
Michael Straight, “Accountability for Racial, Religious, Ethnic and Gender Bias Misconduct and Sexual Harassment by Federal Judges.”
APPENDIX II
NATIONAL COMMISSION ON JUDICIAL DISCIPLINE AND REMOVAL
LIST OF CONCLUSIONS AND RECOMMENDATIONS
WITH AN IMPLEMENTATION UPDATE*
November 29, 2001
CONSTITUTIONAL ISSUES
The Commission concludes that Article III judges constitutionally may be prosecuted, convicted, and punished, and that the punishment may lawfully include incarceration.
The Commission concludes that Article III judges constitutionally may be subjected to state prosecution and incarceration. Although Congress has power to create some privileges against such prosecutions, the Commission concludes that such statutory privileges would be unwise.
The Commission concludes that a circuit council constitutionally may use its statutory authority to assign and reassign cases, and otherwise control the judicial duties, of a judge who has become disabled.
The Commission further concludes that a circuit council constitutionally may use its statutory authority to control the assignment and reassignment of cases and other judicial functions of an implicated judge during the criminal process, from investigation and indictment through the expiration of sentence, including a term of probation.
The Commission concludes that a statute providing for the removal from office of judges who serve on good behavior under Article III by means other than impeachment and conviction would be unconstitutional.
The Commission recommends that section 201 of title 18, United States Code, be amended to make clear that it does not authorize the removal of any judicial officer who serves during a term specified in the Constitution.
The Commission concludes that a statute under which a judge's compensation would be suspended on the basis of a criminal conviction would be unconstitutional.
The Commission recommends adoption of a statute under which a judge who has been convicted of a felony shall not hear or decide cases unless the circuit council determines otherwise.
______________________________
* Italic signifies a conclusion or recommendation that does not require implementation. Bold signifies a conclusion or recommendation that has been implemented.
The Commission recommends retaining the political mechanism of impeachment by the House and trial by the Senate as now provided in the Constitution. The impeachment process is the sole appropriate means for the removal of life-tenured judges.
The Commission recommends against a constitutional amendment under which convicted judges would be removed automatically.
The Commission recommends against the creation of a new organ of government that would have the authority to discipline and remove federal judges.
The Commission opposes the suggestion that Congress should be able to determine by statute the way in which federal judges are removed.
The Commission opposes any proposal under which the Supreme Court would participate in the removal of federal judges.
The Commission concludes that the current constitutional standard for impeachment, as interpreted over the years, has been adequate to its purpose and recommends that it not be amended.
LEGISLATIVE BRANCH
The Commission recommends that the House Committee on the Judiciary continue to acknowledge every judicial discipline complaint. In serious cases involving potentially impeachable conduct, the Committee should conduct a follow-up inquiry or solicit the aid of the Justice Department in such an inquiry. The Committee should continue to keep a record of the number and nature of these complaints, and report these data each Congress.
The Commission recommends that the House ensure that its Committee on the Judiciary has the resources to deal with judicial discipline matters, and the resources and institutional memory necessary to deal with impeachment cases as they arise.
The Commission recommends that the House Committee on the Judiciary and the Justice Department - upon obtaining information that a federal judge has committed criminal acts that may be inconsistent with continued service on the bench - work cooperatively to resolve the removal issue, including, if desirable, postponing criminal proceedings.
The Commission recommends that the executive and judicial branches share with Congress information that might be useful to it when it considers whether to impeach a federal judge, subject to exceptions necessary to the law enforcement function and to protect serious confidentiality interests. Congress should enact legislation, with proper safeguards, to facilitate the exchange of this information in appropriate circumstances.
The Commission recommends that the House avoid repetition of prior fairly conducted proceedings. When impeachment proceedings follow criminal convictions, issue preclusion should be used except in unusual circumstances.
The Commission recommends that the House dispense with the filing of a "replication" to a respondent judge's answer.
The Commission recommends that the Senate consider experimenting with a variety of delegation approaches (including use of masters) to handle pretrial issues (especially discovery) prior to any removal trial.
The Commission recommends that the Senate consider amending its rules to permit a Rule XI Committee to transmit to the full Senate each Committee member's individual views regarding proposed findings of fact and recommendations on individual articles of impeachment.
The Commission recommends that the Senate consider adopting rules tailored to impeachment trials in which evidence is heard in a Rule XI Committee.
The Commission recommends that the Senate apply issue preclusion to matters necessarily determined against a judge in a prior criminal trial except in unusual circumstances.
The Commission recommends that the Senate compile a manual of impeachment source materials for participants in the proceedings and other interested parties.
The Commission recommends that the House Committee on the Judiciary, within its jurisdiction, exercise periodic oversight of judicial discipline, judicial ethics, and criminal prosecutions of federal judges.
The Commission recommends that the Senate review its confirmation proceedings involving judges prosecuted since 1980 to determine whether those proceedings were thorough and whether they revealed any problems suggesting a danger of misconduct by the nominees. The Senate review should be forward-looking, designed to avoid problems in the future.
The Commission recommends that the House determine, in its resolution, whether to seek both removal and disqualification in each impeachment proceeding.
The Commission recommends that, regardless of whether the House asks for disqualification, the Senate vote on disqualification from holding future office as well as on removal from office of judges convicted in impeachment trials.
The Commission concludes that no formal institutional linkages need be established among or between the branches of government. A permanent National Commission on Judicial Discipline and Removal is not necessary.
The Commission recommends informal meetings of high-level representatives of the three branches of the federal government to promote oversight and understanding of judicial discipline, disability, and impeachment.
The Commission recommends that the Administrative Office routinely provide the House Committee on the Judiciary with all final orders and accompanying memoranda required by the 1980 Act to be publicly available.
EXECUTIVE BRANCH
The Commission recommends that the Justice Department promulgate guidelines and procedures for its attorneys regarding the circumstances under and the manner in which the mechanisms of the 1980 Act are to be utilized.
The Commission recommends that convicted judges who fail to accept responsibility for their conduct not receive reduced sentences, and in any event that sentencing judges be sensitive to the effects of their sentences on the decision of a convicted judge to resign voluntarily from judicial office.
The Commission recommends that the FBI and the Justice Department issue explicit guidelines and procedures for the investigation and prosecution of federal judges, and that these guidelines and procedures require the approval of the Attorney General for full-scale investigations and intrusive investigative techniques.
The Commission recommends that the Justice Department consult with the U.S. House of Representatives at appropriate times during an investigation and prosecution of a federal judge, whenever the facts suggest that impeachment is a likely outcome. The timing of impeachment and criminal proceedings should be a matter dictated by the facts and circumstances of each case. Ideally, this decision should be made by mutual agreement of the branches.
The Commission recommends that FBI full-field investigations of judicial candidates be as comprehensive as reasonably possible to ensure sound judgments about their integrity and qualifications.
JUDICIAL BRANCH
The Commission recommends that Illustrative Rule 1(e) be revised to provide that the complaint procedure may not be used to force a ruling on a particular motion or other matter that has been before the judge too long; a petition for mandamus can sometimes be used for that purpose. Discipline under the 1980 Act may be appropriate, however, for (1) habitual failure to decide matters in a timely fashion, (2) delay shown to be founded on the judge's improper animus or prejudice against a litigant, or (3) egregious delay constituting a clear dereliction of judicial responsibilities. The Commission also recommends that all councils and the several courts subject to the 1980 Act adopt this Illustrative Rule as revised. [Change made to the commentary of the Illustrative Rule.]
The Commission recommends that a chief judge or circuit council dismissing for lack of jurisdiction non-frivolous allegations of criminal conduct by a federal judge bring those allegations, if serious and credible, to the attention of federal or state criminal authorities and of the House Judiciary Committee. In situations where the chief judge or circuit council believe it inappropriate to act as an intermediary, the Commission recommends that they notify the complainant of the names and addresses of the individuals to whose attention the charges might be brought.
The Commission recommends that the 1980 Act be amended to include as an additional ground for dismissal by a chief judge that the allegations in a complaint have been shown to be plainly untrue or incapable of being established through investigation. [Illustrative Rule amended.]
The Commission recommends that the Judicial Conference of the United States add to the text of Canon 2 or Canon 3 of the Code of Conduct for United States Judges an express prohibition of judicial behavior that reflects or implements bias on the basis of race, sex, sexual orientation, religion, or ethnic or national origin, including sexual harassment. Unless the complaint's allegations are directly related to the merits of a decision or procedural ruling, such behavior in a judicial capacity is an appropriate subject for discipline under the 1980 Act.
The Commission recommends that the bar and the federal judiciary increase awareness of and education about the 1980 Act among lawyers, judges, court personnel, and members of the public. As one part of such efforts, each circuit council that has not already done so should publish its rules under the Act in United States Code Annotated, and a reference to the 1980 Act and the circuit council's rules should be included in the local rules of each district court.
The Commission recommends that each circuit council charge a committee or committees, broadly representative of the bar but that may also include informed lay persons, with the responsibility to be available to assist in the presentation to the chief judge of serious complaints against federal judges. Such groups should also work with chief judges in efforts to identify problems that may be amenable to informal resolutions and should initiate programs to educate lawyers and the public about judicial discipline. The Commission also encourages other institutions, including the organized bar, to take an active interest in the smooth functioning and wise administration of formal and informal mechanisms that address problems of judicial misconduct and disability.
The Commission endorses Illustrative Rule 4(b) and recommends that the 1980 Act be amended to provide that a chief judge may conduct a limited inquiry into the factual support for a complainant's allegations but may not make findings of fact about any matter that is reasonably in dispute.
The Commission recommends that chief judges seek assistance from qualified staff in reviewing complaints and preparing orders. It encourages chief judges to consult other judges who may be helpful in the process of complaint disposition. The Commission does not believe that the 1980 Act, including its provision on confidentiality, constitutes a barrier to such assistance or consultation.
The Commission recommends that the Illustrative Rules be amended to permit chief judges and judicial councils to invoke a rule of necessity authorizing them to continue to act on multiple judge complaints that otherwise would require multiple disqualifications.
The Commission recommends that all judicial councils adopt and strictly adhere to Illustrative Rule 17 as it relates to the public availability of a chief judge's orders dismissing complaints or concluding proceedings and any accompanying memoranda. Care should be taken to eliminate information that would identify the judge or magistrate. If action by the judicial councils or the Judicial Conference does not result in national uniformity on the issue within a reasonable period of time, the Commission recommends that the 1980 Act be amended to impose it.
The Commission recommends that council rules regarding confidentiality should be nationally uniform. The relevant provisions of the Illustrative Rules should be adopted to that end, but the uniform rules should not provide for automatic transmittal of a copy of complaints to the chief judge of the district court and the chief judge of the bankruptcy court. They should, however, authorize a chief judge to release information, with appropriate safeguards, to government entities or properly accredited individuals engaged in the study or evaluation of experience under the 1980 Act. [Adopted by some circuits; not all.] If action by the judicial councils or the Judicial Conference does not result in national uniformity on the issue within a reasonable period of time, the Commission recommends that the 1980 Act be amended to impose it.
The Commission recommends that, as provided in Illustrative Rule 4(f), a chief judge who dismisses a complaint or concludes a proceeding should "prepare a supporting memorandum that sets forth the allegations of the complaint and the reasons for the disposition." This memorandum should "not include the name of the complainant or of the judge or magistrate whose conduct was complained of." In the case of an order concluding a proceeding on the basis of corrective action taken, the supporting memorandum's statement of reasons should specifically describe, with due regard to confidentiality and the effectiveness of the corrective action, both the conduct that was corrected and the means of correcting it. If action by the judicial councils or Judicial Conference does not result in national uniformity on the issue within a reasonable period of time, the Commission recommends that the 1980 Act be amended to impose it.
The Commission recommends that the Judicial Conference devise and monitor a system for the dissemination of information about complaint dispositions to judges and others, with the goals of developing a body of interpretive precedents and enhancing judicial and public education about judicial discipline and judicial ethics.
The Commission recommends that the Judicial Conference, assisted by the Administrative Office, reevaluate the adequacy of all data and reports gathered and issued concerning experience under the 1980 Act, including the system used to provide such data and reports in each circuit. The Commission also recommends that, as part of such general reevaluation, consideration be given to gathering and reporting data on complaints about bias on the basis of race, sex, sexual orientation, religion, or ethnic or national origin, including sexual harassment.
The Commission recommends that section 332 of Title 28, United States Code, be amended to require each circuit council to report annually to the Administrative Office of the U.S. Courts the number and nature of orders entered thereunder that relate to judicial misconduct or disability (including delay).
The Commission recommends that the Judicial Conference adopt a uniform policy on the limitations a judicial council should impose on a judge who is personally implicated in the criminal process. At a minimum that policy should include ordinarily relieving a judge under indictment from all judicial responsibilities through to the end of the criminal process and imposing appropriate constraints on judicial responsibility where a judge is under investigation.
The Commission recommends that Congress consider enacting a statute providing that, upon conviction of a felony (or more specifically defined crimes), a federal judge shall cease to accrue credit, through age or years of service, toward retirement under the Rule of 80. [Judicial Conference passed a resolution to this effect.]
The Commission recommends that the Judicial Conference and the circuit councils consider programs of judicial evaluation for adoption in the federal courts.
The Commission recommends that the Judicial Conference reexamine the practice of specifically notifying a federal judge when a request for access to the judge's financial disclosure forms is made, to determine if valid security or other concerns justify continuation of the practice. [Judicial Conference reexamined the practice but expressly rejected any change.]
The Commission recommends that the public disclosure requirements under federal law be amended to require a federal judge either (1) to certify that, to the best of his or her knowledge, information and belief, the judge does not, except as permitted by Canon 2(c), hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin or (2) to list all organizations not exempted under Canon 2(c) of which the judge is a member.
The Commission recommends that the Judicial Conference adopt a mandatory self-reporting rule that requires federal judges to inform designated authorities (e.g., the circuit chief judge), on a confidential basis, whenever they have been indicted, arrested, or informed that they are the target of a federal or state criminal investigation. Such a rule should not apply to minor offenses. [Judicial Conference only urged each council to adopt a mandatory self-reporting rule.]
The Commission recommends that the Supreme Court may wish to consider the adoption of policies and procedures for the filing and disposition of complaints alleging misconduct against Justices of the Supreme Court.
The Commission recommends that each circuit that has not already done so conduct a study (or studies) of judicial misconduct involving bias based on race, sex, sexual orientation, religion, or ethnic or national origin, including sexual harassment, and of the extent to which the 1980 Act and other existing mechanisms and programs, including judicial education, are adequate to deal with it. The Judicial Conference should monitor the implementation of this recommendation and when such studies have been completed, consideration should be given both locally and nationally within the judiciary to such changes in policies, procedures, and programs as are warranted.