J.A.I.L. News Journal
Los Angeles - September
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Larry Klayman Proposes
In our September 18, 2000 issue of the J.A.I.L.
News Journal, we presented an article entitled "Activist Federal Judges
Hit The Limelight." Therein we presented the
combined efforts of the Family Research Council (FRC),
Free Congress Foundation, and Eagle Forum's Court Watch in attempting
to bring about federal judicial accountability.
J.A.I.L. has repeatedly presented its
Judicial Accountability & Integrity Legislation directed at Congress for a
federal Special Grand Jury remedy. We deemed it fitting for you to consider
a third alternative.
Larry Klayman, Chairman
and General Counsel of Judicial Watch, and Attorney D.R. Bustion of Judicial
Watch, wrote an article entitled "Prescriptions for Judicial Misconduct." The
article appeared in the Massachusetts School of Law publication entitled "The
Long Term View" Volume 4, Number 1. Below are some excerpts of how Larry Klayman
proposes to bring about federal judicial accountability, an item he describes
as, "All Americans, regardless of their politics, should join in restricting the
judiciary to a relatively modest role."
The judiciary is
thus the left's naturally, and the right's natural enemy. The left argues for
the greatest possible judicial power in an effort to arm its ally. The right
argues for restriction on judicial power to disarm its enemy.
Judges enjoy a freedom from any non-judicial oversight that tends to
breed an exaggerated sense of self-importance and an insensitivity to
Even though the
source of judicial arrogance suggests itself readily, formulating a
plan for controlling such arrogance at the source is extremely
As important as judicial
independence is, however, the prevalence of judicial misconduct demonstrates its
downside. Lord Acton's famous epigram about power and absolute power is
instructive. An absolutely independent judiciary would also be absolutely
powerful, and absolute inevitably corrupts. A judiciary that believes it is
entitled to do whatever it thinks best, and that any effort to question its
decisions is legitimate, cannot be a guarantor of freedom. It becomes, instead,
a threat to freedom. If we permit the judiciary to act entirely without
restraint indefinitely, it will go beyond threatening freedom and become an
This then is the dilemma:
An independent judiciary is essential, but too much independence quickly decays
into tyranny. There is a delicate balance to strike here. Judges must be
insulated from pressure and yet accountable. They must be independent but not
improve the constitutional balance between independence and restraint in
the design of the federal judiciary would require a constitutional amendment. In
fact, it would require the most dramatic constitutional amendment since the end
of the Civil War. We at Judicial Watch have framed the proposals put forward
here without reference to the current design of Article III. We proceed as if we
can design a federal judiciary from scratch. A completely redesign is now
overdue. Similar reforms may be needed in most, if not all, of the state
Such a redesign would
have to limit judicial independence, making judges more accountable for their
decisions. To achieve accountability there must be changes in the tenure of
federal judges, as well as changes in long standing rules regarding judicial
liability for official acts.
An effective redesign of the federal judiciary would mandate extensive
changes in the selection, compensation, and training of judges.
propose a merit selection panel, with nine members, in each federal
jurisdictional district in the United States. Those panels should be directly
elected to two-year terms by the people of each district. No member of the panel
could hold any other federal office during his tenure on the panel, or for ten
years after leaving it. Each panel would propose one nominee for each vacancy
occurring in the local district court. The nomination would become effective
unless, within ninety days, the Senate voted to reject it. The permissible
grounds for rejection would be limited to professional incompetence, or high
crimes and misdemeanors.
The merit selection panel
in each district would elect one of its members to serve on a panel charged with
nominating people to fill vacancies in the court of appeals or the circuit in
which his judicial district is located. Each court of appeals merit selection
panel would nominate one of its members to serve on a panel charged with making
nominations to the Supreme Court. ...
.... Increased compensation would also help inoculate the
federal judiciary against the crudest forms of corruption.
Salaries and benefits for
judges should be set at a level equal to the median salaries of the best lawyers
in the district or region where the judge sits, and should be subject to
periodic automatic adjustments for longevity and other factors. ...
This partial reform alone is an important step in improving the
judiciary. The reform measure which Judicial Watch is developing will include a
salary-setting mechanism designed by economists expert and experienced in
setting legal compensation, and will include a feature permitting periodic,
automatic adjustments, both for the judiciary in general and for individual
judges, based on tenure or special economic factors for each district or region.
Under our proposal, the
salaries of judges would increase dramatically. Preliminary calculations
indicate that average compensation may double. ...
Another approach to judicial training might be to require a one-year
course of study beyond law school for all attorneys who wish to be eligible for
a judicial appointment. Such a course could help shape the attitude a lawyers
needs to become a good judge. ...
Perhaps the best approach to training prospective judges would be to
require nominees to the federal bench to have obtained a certificate from a
special institute organized under the auspices of the merit selection panels
discussed above. ...
No matter how well judges
are selected and trained, they remain human. Given the flaws inherent to human
nature, no group of people can be trusted to maintain high standards of behavior
indefinitely if they are answerable only to themselves. As a practical matter,
federal judges cannot be removed from office. Moreover, they have no liability
for the consequences for their official actions, even grossly negligent and
improper actions. They are essentially answerable only to themselves. We at
Judicial Watch have two proposals aimed at correcting this situation. The first
would require fundamental changes in the constitutional provisions governing the
tenure of federal judges.
Judges should be selected for ten year terms with merit panels reviewing
their performances at the midpoint of each term. They should be limited to two
In addition to the
routine review at the midpoint of each judicial term, judges should be
susceptible to removal if a complaint or complaints lodged with the appropriate
merit panel reveals just cause for removal. ...
also propose that judges have liability insurance at government expense. This
would assure that no judge is subjected to financial harm, but will furnish a
measure of protection to citizens. It is also an important part of the public
confidence-building element of reform for the public: persons actually subject
to harm at the hands of a grossly negligent judge will, to some extent, be
compensated, including punitive damages.
Judicial misconduct is
steadily eroding the prestige and authority of the judiciary. In the next
several years, debate about how to restrain the judiciary and arrest that
erosion will play an increasingly important part in America's political
discourse. There is no more pressing issue; our government needs a healthy
Judicial Watch are working to refine these proposals. ...
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-- Henry David Thoreau