accountability is needed to enforce the
Government has a
the People can be an effective "watchdog" over the judiciary.
Does the Judiciary Need a
Pamela A. MacLean
The National Law
Congressman James Sensenbrenner
recently floated the idea of creating an office of inspector general to
watchdog the federal judiciary, prompting fears that Congress could carry
the authority beyond monitoring the judicial purse.
a Wisconsin Republican and head of the House Judiciary Committee,
told a Stanford University audience on May 9 that his committee "is
investigating whether Congress needs to create an office of inspector general
for the federal judiciary."
He said further that he did not believe
"that creating an IG for the judiciary will violate the
separation-of-powers doctrine that promotes the independence of the three
branches of government."
The traditional mission of an inspector
general, first used by the Continental Congress in 1777 to oversee
the functioning of the military, is to investigate potential fraud and waste of
tax dollars by agencies of the executive branch.
At a time of high
tension between Congress and the judiciary, Sensenbrenner's proposal
brought a reaction from Supreme Court Justice Anthony M. Kennedy. He told
an 11th Circuit judges' conference in Florida last week that courts should
be accountable, but that he sharply rejected the idea of Congress punishing
judges for decisions it doesn't like.
"Context is everything," said
Charles Geyh, professor at Indiana University School of Law-Bloomington
who has written extensively on relations between the courts and
"In the abstract, there is nothing wrong with judges
being accountable for the money they spend," he said. "But the backdrop
here is a fairly carnivorous House trying to hold judges accountable for
the decisions they make. This proposal is not made in the context of
spending lavishly. It is being used as a proxy for their
"It is pretty thinly veiled at that,"
he said. Congress is suggesting to
judges, "We may look more closely at
the [judiciary] budget if we don't like the decisions you
Discussions of the proposal are in the early stages. There is
no bill in the hopper. Nor are hearings contemplated, said Jeff Lungren,
spokesman for Sensenbrenner on the Judiciary Committee.
indicated that the talking is mostly among staffers on the Republican side.
He indicated that the idea has been "well received" among House and Senate
staff, but declined to be more specific.
Chief Judge Joel Flaum of the
7th U.S. Circuit Court of Appeals said that the speech lacked specifics.
"I really want to see the details because it can run from soup to nuts. We
need some fleshing out" because of the separation of powers issues, he
Sensenbrenner's frustration with
the court's self-policing to resolve
allegations of misconduct is well
known. He has expressed displeasure with alleged changes in the process
used in the 6th Circuit to select the three-judge panel to hear the
Michigan affirmative action case a few years ago, and with controversial
testimony on sentencing issues in 2002 by U.S. District Judge James Rosenbaum of
"I think he's long been concerned about judicial ethics in the
broad sense," said Carl Tobias, a professor at the University of Richmond
School of Law in Virginia. Sensenbrenner has expressed concern that the
discipline system created in a 1980 statute has not been sufficiently
rigorous, Tobias said.
Sensenbrenner warned in the Stanford speech
that "Congress would step in if the federal judiciary did not do a better
job discharging this responsibility."
A review of court statistics
for the most recent seven years available, 1997 to 2003, shows very few
public or private censures were issued against judges compared with the
number of citizen complaints. During that period, chief judges in three
circuits issued five public censures and a private one to individual judges,
while the number of complaints averaged 759 per year. Those censures came
in three circuits, the 6th, 9th and 10th. The remaining circuits had not issued
a single reprimand during that period.
"You must understand the
overwhelming majority [of complaints] come from disgruntled litigants and
do not come within the purview of discipline procedure," said 9th Circuit
Chief Judge Mary Schroeder of Phoenix.
The statistical reports
confirmed that a high dismissal rate came because the complaints stemmed
from a losing party's anger over a ruling, but details of individual cases
are not made public.
The 1980 statute contemplates reprimands for
misconduct unrelated to
decision-making, such as abusive behavior or
Asked whether an inspector general might be given
authority to review public complaints under the Sensenbrenner plan, Lungren
said it is a possibility.
"That would be an implicit linking of
judicial decision-making to the
budget," Geyh said. "That has never
been made before. If an inspector general is told to look at the budget and
to look at complaints, the potential for abuse is
Sensenbrenner specifically pointed out the need to keep
obligations of financial oversight separate from political
frustration with judges.
"It is one thing for Congress to monitor
how the courts are set up; it is
quite another thing to tell them how
they must author opinions," he said at Stanford.
In response to
Sensenbrenner's concerns about judicial self-regulation, Chief Justice
William H. Rehnquist appointed a study committee last year to examine how the
1980 statute was implemented, and put Justice Stephen Breyer in
Breyer, who served as counsel to the Senate Judiciary
Committee when the statute was enacted, is expected to issue a final report on
the committee's findings sometime this summer.
Schroeder of the 9th
Circuit said of Sensenbrenner's proposal, "None of us know what may be
seriously considered. We hope the judiciary is consulted. I had not heard
anything about [an inspector general] until I saw the speech."
1996 proposal to create an inspector general for the judiciary was opposed
in the judicial branch "because it poses a serious threat to the
independence of judicial decision-making and has serious implications for the
separation of powers," a statement issued at the time said,
Administrative Office of the U.S. Courts spokeswoman
Geyh said that at this point it is hard to tell
proposal is saber rattling or a serious
alternative to the more caustic calls by others for impeaching judges
and slashing budgets.
The proposed Federal J.A.I.L. Bill has hit Congress
time and time again. It is obvious that Congress is afraid of J.A.I.L. because
it places Federal Judicial Accountability directly in the hands of the
People, and that is exactly what they do not want, accountability to the People.
It has also become obvious that things are totally out
of control regarding the Federal Judiciary, and something must be done, and
Congress does not want to admit that they do not answers.
The solution to the problem is not so difficult as is
the politics of the problem. So there is an obvious problem with an obvious
answer, and an obvious political blockage, namely, "We will not have the
People, through J.A.I.L., to gain rule over the
We are told in the article above, "You must understand
the overwhelming majority [of complaints] come from disgruntled litigants
and do not come within the purview of discipline procedure," said 9th
Circuit Chief Judge Mary Schroeder of Phoenix.
This is the standard wall of protection put up by the
judges to preserve their judicial corruption. Of course it is from an
overwhelming majority of litigants that complaints originate. How else
would most complaints originate? Then they throw in the word
"disgruntled" to taint everyone's complaint. Would anyone be
surprised to discover that everyone who files a complaint is disgruntled
with what they experienced. And if they did not experience it, why would
they complain? They then say, such experiences do not come within the
purview of the discipline procedure."
One might swallow this flimsy argument if they did
not have the particulars. For instance, one of my Sec. 372 complaints against
three 9th Circuit Federal Judges was because they engaged in specific
conduct forbidden by the rules of judicial conduct of a back-room collusion
with a party in the case, to wit, the U.S. Attorney. The U.S. Attorney
was playing two rolls, that of defensed counsel for the defendant 9th
Circuit Judges being sued, and counsel to the judges setting in judgment in the
case against their fellow 9th Circuit judges.
When it came to my 372 complaint for this
illegal collusion, the judges stated that I was just a disgruntled
litigant, and was complaining about the merits of the case, and hence dismissed
my complaint. My complaint of judicial collusion was filed against the
first panel of 9th Circuit judges for collusion to a second panel, who
covered up for the first panel, and then to a third panel, who covered up for
the second panel of 9th Circuit judges.
I was burning up near all the judges in the 9th
Circuit, finding that almost ever judge in the 9th Circuit was covering for
all the other judges' corruption. Eventlually, this complaint went all
the way to Congress seeking impeachment, but there it rotted, with not one
Congressman commenting on the facts presented against these judges. So much for
the "Right of Redress of Grievances" provided by the First Amendment of the
Constitution. It exists on paper only. - Ron Branson
"..it does not require a majority to prevail, but rather an irate,
minority keen to set brush fires in people's minds.." - Samuel
"There are a thousand hacking at the branches of evil to one
striking at the
-- Henry David Thoreau