*** Larry Klayman Proposes Federal Remedy
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J.A.I.L. News Journal
Los Angeles - September 22, 2000
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Write baronboy@... and place your order today!Larry Klayman ProposesFederal Judicial RemedyIn 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."Excerpts: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 others.Even though the source of judicial arrogance suggests itself readily, formulating a plan for controlling such arrogance at the source is extremely difficult. ....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 oppressive oligarchy.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 utterly unrestrained....To 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 judiciaries.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.Selection...We 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. ......Compensation.... 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. ......Training......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. ...TenureNo 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 terms. ...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. ......Judicial Liability...We 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....ConclusionJudicial 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 judiciary....We at Judicial Watch are working to refine these proposals. ...
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