Congress: Wake up and pay attention!
Judicial reform has never been much of a political priority, and one of my non-lawyer clients gave the best explanation for this phenomenon that I have ever heard: "They're killing us in small groups." That is, most U.S. citizens never find themselves in federal court, and an even smaller fraction of U.S. citizens are parties in federal court at any given time. Thus it is hard to muster the widespread outrage that is generally required to get Congress to pay attention.
On the other hand, federal judges have become increasingly activist and are now routinely suspending and invalidating laws according to their whims and personal preferences. I can only hope that the latter phenomenon will prompt the public, and ultimately Congress, to pay more attention to the people who have ever-increasing power over our daily lives. Below are some reforms that I hope Congress will consider, as well as some things that you can do to make Congress pay attention.
1. Don't let judges investigate each other
After the Fifth Circuit tried to cover up the fact that Judge Samuel Kent had been sexually assaulting female employees in the federal courthouse, you would think that Congress might have reconsidered the policy of allowing judges to investigate and regulate each other. No such luck. As it stands, the House of Representatives will not investigate any federal judge unless his or her fellow judges first recommend impeachment. I can understand some of the reasons for that policy, e.g., members of Congress do not want to create the appearance that they are investigating a judge who has ruled against them, a friend, a political supporter, etc., and they do not want to create the appearance that they are exerting pressure to influence the outcome of a particular case. There are, however, ways to protect both the independence and the integrity of the judiciary.
Rep. James Sensenbrenner, former chairman of the House Judiciary Committee, proposed an inspector general for the federal judiciary, but the idea caught a lot of criticism1 and ultimately died. I would prefer something more akin to the Government Accountability Office2 or the Office of Congressional Ethics,3 both of which conduct independent investigations and report back to Congress. In severe cases, the office could recommend that Congress initiate impeachment proceedings, similar to what happens when the Office of Congressional Ethics recommends that the House Ethics Committee open proceedings against a member of Congress. In lesser cases, the office could recommend that the appropriate judicial council suspend or reprimand the judge. In either case, the results of the investigations should be released to the public. If judges are abusing people behind closed doors much less committing crimes against those people the public has a right to know. Judges should not be in a position to protect their colleagues by burying judicial misconduct investigations. Find your member of Congress,4 and let him or her know that you want Congress to carry out its Constitutional duty to oversee the judiciary.
2. Eliminate single-judge divisions and courthouses
Aside from the alleged alcohol and zipper-control problems, Judge Walter S. Smith and Judge Samuel Kent had something else in common: they were the only district judges in their respective divisions and courthouses. In both cases, they were the feudal lords of the realm, and they acted accordingly. In the "reform" section of BoogerCountyMafia.com,5 I noted similar problems in Texas where a state judge is the only district judge in the county. Too much power accrues in one person, and he/she has no peers in the courthouse to call him/her on the carpet. The solution is simple: Congress should mandate that no less than two judges regularly rotate through each division and courthouse, and preferably three or more judges.
3. Protect the public's right to see court records
A few years ago, I was surprised to learn that a federal judge, presumably U.S. District Judge Vanessa Gilmore of Houston, had secretly ordered the district clerk to hide a letter that I had filed electronically in 2008. The letter was unflattering to Judge Gilmore to say the very least, and I'll have a lot more to say about it in Liars and Horse Thieves, but I was amazed that an official court document could be removed from the public domain without any kind of notice or explanation. After Judge Montalvo sealed the letter from LaToshia without any notice or hearing, I decided to do a little research on the federal rules and statutes that protect the public's right to see court records.6
Here's what I found: there are no such federal rules and statutes. Absolutely none. There is a federal common-law presumption that court records are public, but different appellate circuits have developed varying guidelines, and they all appear rather vague. See, e.g., JetAway Aviation, LLC v. Board of County Com'rs of County of Montrose, Colo., 754 F.3d 824, 826 (10th Cir. 2014). Whereas Texas state judges are required to post notice and hold a hearing before sealing any document or otherwise removing it from the public domain, there are no such limitations on federal judges. In other words, there was really nothing to prevent the judges from sealing the letters from public view.
Even worse is the case where a court document was already in the public domain, as was my letter to Judge Gilmore, but then secretly removed. Congress can easily put a stop to that kind of nonsense, and it should, simply by adopting some of the standards governing the courts of states like Texas. The El Paso Times has fought Judge Montalvo repeatedly and rightly so because he routinely seals records related to public corruption cases. The public has a right to know what is going on those cases. Period. We're living in an era when federal judges are secretly authorizing the collection of vast amounts of electronic data about U.S. citizens. The major media companies and journalism associations should be demanding that Congress curtail judges' ability to hide court records from public view, particularly when judges are secretly hiding documents that were already in the public domain.
4. Protect the public's right to see court proceedings
People behave differently when they know they're being watched, and particularly when they know they're being recorded. Judges are no exception. If judges knew they were being recorded on video and live-streamed to the Internet, I suspect a lot of them would do a better job of minding their manners. A case in point would be U.S. District Judge Lynn Hughes of Houston, a particularly nasty and abusive man. Rather than hold hearings in his courtroom, Judge Hughes prefers to hold hearings in his chambers, where the public cannot see his nastiness in action. Absent limited circumstances, e.g., a hearing concerning the welfare of a child, judges should be compelled to hold their hearings in public, those hearings should be recorded by audio and video, and the recording should be available on the Internet. Congress could mandate this, and it should.
I would extend the principle to appellate courts and go even further. In generations past, appellate judges frequently held their conferences on the bench following oral argument. In other words, rather than retiring to a private room, the judges publicly discussed and debated among themselves how the case should be decided. That should be the norm. All the states have public meetings laws that require councils and commissions to hold their meetings in public, absent a few specified exceptions. Surely Congress could adapt those laws to the judiciary. For example, judges on appellate panels often want to have discussions about a case by teleconference or e-mail after oral argument and that is understandable, particularly when an opinion is being drafted. The state open-meeting laws provide a good guideline for making those telephone or e-mail discussions public either in real time or after the fact. But regardless of whether judges are debating the fate of Obamacare or an arcane copyright dispute, the public should be allowed to hear the debate.
5. Require the appellate courts to explain their decisions
As discussed on the page about Judge Huvelle,7 the appellate process has now degenerated to the point where appellate courts routinely refuse to write opinions explaining their decisions, and in some instances it is doubtful that the judges have even read the briefs. In a 2013 petition to the U.S. Supreme Court,8 I marshaled some of the objections raised by judges and legal scholars, including the argument that our common-law legal system is being eroded by appellate judges who refuse to explain their decisions (I had less than a week to write the petition, so please forgive the mistakes and the rough edges). As I was building this website, I stumbled across www.nonpublication.com,9 a site maintained by California attorney Kenneth Schmier. His site is the most thorough compilation of law review and news articles that I have found on the subject, and in the "Bullet Points" section of his site he explains the problem in terms accessible to non-lawyers.
As I was working on my petition last year, I was fortunate enough to speak with Professor Erwin Chemerinsky10 of UC-Irvine, and he said he doubted the Supreme Court would ever constrain appellate courts from issuing unexplained decisions. Among other reasons, the federal judiciary does not like to tie its own hands. In my second petition to the Supreme Court,11 I argued that the practice of nonpublication is unconstitutional because it eviscerates our common-law legal system, a system of law that is mandated by Article III, Section 2. See Thompson v. Central Ohio R. Co., 73 U.S. 134, 137 (1867) (explaining that the "law and equity" phrase of Section 2 infers the adoption of the English legal system, if not the English laws themselves).
Unconstitutional or not, I do not expect the Supreme Court to take up the issue; therefore Congress needs to act. Initially, I thought Congress should declare that all appellate decisions must be explained in a written opinion unless the appeal is frivolous. Of course, that could just incite the appellate courts to declare more cases frivolous. Accordingly, I would recommend a simple statement of policy that (1) all decisions of the appellate courts are precedential, and (2) all appellate decisions must be explained in a written opinion that addresses all of the issues briefed by the parties. I'm sure the appellate judges would still look for wiggle room, but perhaps we could reverse the current trend that led to 80 percent of appellate cases being decided with little or no explanation.
6. Curtail judicial immunity
In Dennis v. Sparks, the plaintiffs sued a state district judge in South Texas because he had allegedly accepted a bribe to issue an injunction against them. 449 U.S. 24, 101 S.Ct. 183 (1980). The U.S. Supreme Court held that the plaintiffs could sue the people who bribed the judge, but not the judge himself, because the judge was protected from suit by the doctrine of judicial immunity. Even if the state judge was criminally convicted of accepting the bribe, the court wrote, the judge was still immune from civil suit because he was acting in a judicial capacity when he granted the injunction.
More recently, the case of Judge "Shirtless Wade" McCree,12 a judge who carried on an affair with a woman and sexted her pictures of himself while he presided over her child custody case, has drawn attention to the extraordinary reach of judicial immunity. While there is a legitimate need to protect judges from being sued for doing their jobs, the pendulum has swung too far. In 1987, a report from the Cato Institute13 explained how judges have steadily expanded the doctrine of judicial immunity to protect themselves at the expense of the poor saps who appear before them.
In the Sparks case, the Supreme Court acknowledged that judicial immunity is a common-law doctrine, which means it was created by judges and is not part of the Constitution. That, in turn, means Congress can legislatively curtail the reach of judicial immunity (or ostensibly eliminate it). There are sound reasons for granting judges immunity for their judicial acts, but Congress should eliminate all such immunity where a judge commits a crime or an intentional tort.
7. Establish term limits for federal trial judges
The single best step toward judicial reform, in my opinion, is the elimination of life tenure for federal judges. Term limits would introduce something that the federal judiciary desperately needs: humility. Unfortunately, discussions of term limits for federal judges usually go nowhere, and for two reasons: (1) term limits would require a Constitutional amendment, and (2) nobody wants to upset the conservative / liberal balance in the appellate courts, particularly the Supreme Court. I am willing to settle for half a loaf: limit the tenure of federal trial judges. I actually think that proposal could win the necessary support in Congress and the state legislatures, and I believe it would solve the lion's share of problems with misbehaving judges.
In my observation, the worst behaving judges are usually trial judges, and that stands to reason. Trial judges have extraordinary unilateral power, and they also have the most power to do harm in any given case. Whereas an appellate judge generally must act as one of three or more judges on a panel, a trial judge can dismiss your case, sanction you, and make false findings of fact all by himself or herself. Similarly, an appellate judge who shows up for work drunk, in the midst of a bipolar episode, etc. is offset by at least two other judges who are, hopefully, neither drunk nor bipolar. No such luck with a drunk or bipolar trial judge.
If trial judges were limited to eight years in office, with a retention election in the fourth year, I suspect you would see a lot less bullying and lawlessness in the local courtroom. Why? Because the judge would know (1) that he or she might get voted out in the fourth year, and (2) that he or she would most likely have to return to private law practice in no more than eight years. Of these two factors, the latter would probably have the most impact. A judge would be less likely to walk all over the lawyers and litigants if he or she knew that those lawyers and litigants would soon be colleagues and clients. Trust me, most lawyers are quite willing to retaliate against another lawyer who has burned them, including a former judge.
I would hope that both conservatives and liberals could see the advantages to such a change. Trial judges should be focused on trying and resolving cases rather than redefining the Constitution, because the legal questions are always settled at the appellate level anyway. Accordingly, trial court appointments should be (and generally are) less of an ideological battleground between the parties. And if you reduced the judicial tenure to eight years, trial court appointments would be even less of a battleground because, rather than receiving life tenure as a feudal lord, the appointee would only be around for a limited time.
Finally, I would transfer the power to appoint trial judges from the President to the House of Representatives, with confirmation power remaining in the Senate. That is somewhat similar to the appointment system in Virginia,14 where judges are elected by both houses of the legislature. Congress changes hands every two years, so you're more likely to have partisan balance in the appointments. If that's not enough, require a three-fifths majority to appoint and a three-fifths majority to confirm. Hopefully, the appointment of trial judges if not appellate judges would become a lot less controversial and a lot more routine.
Adapted from: Ty Clevenger, "Congress: Wake up and pay attention!" DirtyRottenJudges.com, 2014, http://dirtyrottenjudges.com/An%20opportunity%20for%20reform.html, accessed Jan. 3, 2016. Ty Clevenger is an attorney who practices in Texas and lives in New York. He can be reached at: firstname.lastname@example.org. Reprinted in accordance with the "fair use" provision of Title 17 U.S.C.
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