Fixing the Judiciary

In 2006, only 21 states still held elections for judicial positions while 29 states appointed their high court judges (17 of the latter still require "retention" elections of the incumbant appointees) [1].  This trend has been encouraged by bar associations and organizations that represent the courts, and they are lobbying hard to convert the remaining elective states into appointive ones.

The latest strategy of these lobbying groups is to acknowledge what we have known all along: that the judiciary has been corrupted by money, and judges are often motivated to decide cases based on the relative influence of the parties that come before them.  Instead of operating as the independent jurists their oaths require, judges now invoke independence to deflect criticism in cases where their bias is suspect.

Documented instances of how money has influenced judicial outcomes in Louisiana [2], Nevada [3], Ohio [4], Illinois [5], Florida [6] and elsewhere suggest that the problem is nationwide and only awaits further investigation to reveal its true extent.

In Louisiana, the average amount of money raised by Supreme Court candidates in 1990 was around $73,000, but by 1998 that amount had increased to more than $573,000 — the election winners receiving nearly $759,000, with 50% of the contributions coming from lawyers and law firms [7].  The amount of money flowing into judicial campaigns has risen sharply.  Political contributions to state Supreme Court candidates jumped from $20.7 million in 1994 to $46.8 million in 2004 [8].

Despite this troubling trend, Louisiana Supreme Court Chief Justice Pascal L. Calogero, Jr., in his April 8, 2008 address to the State Legislature, warned "that replacing an elective system with a 'selection' or appointive system only takes away the choice from the people and places it in the hands of a few; it does not in any way remove the politics from the process, as some have argued." [9]  From his experience with the effect of campaign contributions on judicial outcomes, Justice Calogero, speaks with considerable authority on the subject.

Yet those who have a vested interest in controlling the judiciary — usually the same people who succeeded in undermining it with their cash contributions — now point to the havoc created by money and argue that their cash would not be needed if only they would be allowed to select those who would be our judges to begin with, and simply have them appointed by a mechanism which they undoubtedly would also control.

Electoral Reform

Our democratic society is structured to enable the weak ("We The People") to select their rulers.  History is replete with the tragic consequences of rulers selecting themselves.  The author clearly opposes wresting control of the judiciary from the people and placing it into the hands of a privileged elite.  The appointive process not only tramples on the rights of voters, it separates them further from their constitutional right to an impartial tribunal and is an open invitation to greater tyranny in the courts than heretofore witnessed.

When it comes to the election of judges, critics will point to the lack of voter interest and the high reelection success of incumbent judges who remain scandal-free.  However, it is the government and the media that have been negligent about keeping the public well-informed about judicial candidates, the pertinent issues and even the election itself.  Judicial elections are often scheduled simultaneously with campaigns for major offices, leaving judicial candidates unable to properly compete for attention.  All of this must change if the public is to avoid succumbing to the domination of elitist cliques that are determined to usurp the process of judicial selection for their own interests.

The responsibility for overcoming "voter apathy" lies with the government, which should provide resources to independent, non-partisan, nonprofit agencies to publicize judicial elections, promote their importance, and serve as a source of objective information about the candidates.  One such agency that can serve as a model for this type of public service is the League of Women Voters [10], which in many voting districts collects and furnishes background information about political candidates and uniformly requests their opinions on a variety of relevant topics selected by the League's local chapter.  Issues that are of special concern in elections may are also touched upon.  Information about judges could be gathered and disseminated in the same manner the League does with political candidates.

The state of Ohio points the way for informing the public about judicial candidates.






Adadped from: The Ohio Public Radio/Public Television Statehouse News Bureau, "A New Way to Help Voters Judge Judicial Candidates," September 11, 2015, www.pbs.org/video/2365566955/, accessed 12/08/2016.  Reproduced in accordance with the "fair use" provision of Title 17 U.S.C. § 107 for a non-profit educational purpose.



Public service of this kind should receive adequate state funding to insure that there is at least one source that can be relied upon to distribute accurate, unbiased information and keep the public informed about the time, place and other details of the voting process.  The secretary of state should also inform voters before each election of the offices that are being filled and what candidates are running.

Making election day a national holiday would further promote voter participation in the electoral process.  In 2001, Senators Mary Landrieu (D-LA) and John Kerry (D-MA) and Representatives Barbara Boxer (D-CA) and Shelia Jackson Lee (D-TX) introduced legislation to create a Federal Election Day [11].  Landrieu's bill, as were the others, was referred to the Committee on the Judiciary, where no further action was taken.  The bills were cleared from the books at the end of the 107th Congressional Session along with other proposed bills that had not been passed [12].







Exerpted from: Michael Badnarik, Constitution Class, Part 1, Houston, Texas, 2001, http://www.archive.org/details/Michael_Badnarik, accessed 05/09/09.  Reproduced in accordance with the "fair use" provision of Title 17 U.S.C. § 107 for a non-profit educational purpose.



Judicial Accountability

If you have been treated unfairly by a federal judge and can show that he or she had a conflict of interest, exhibited prejudice, had been influenced by a bribe, disregarded the law, or had ignored, misrepresented or altered material evidence to your detriment, then the good news is that you are free to file a complaint of judicial misconduct against that judge.  The bad news is that under rules established unilaterally by the judicial bureaucracy, your complaint is likely to go nowhere.

On March 11, 2008 the Judicial Conference of the United States adopted a new set of rules for processing misconduct complaints against federal judges [PDF].  The Judicial Conference, headed by Chief Justice John Roberts, is the policy-making arm of the federal judiciary, and its rules governing federal judicial discipline have attracted much criticism from citizen watchdog groups.


“While most judges serve capably from the bench, our systems for judicial accountability unfortunately allow others to regularly abuse their positions of power.  Weak conduct codes permit state and federal judges to rule even when they have a critical conflict of interest in a case.  Judicial discipline commissions regularly turn a blind eye to misconduct by making it difficult for citizens to file complaints against judges, concealing data and ultimately refusing to remove or meaningfully sanction even the most incompetent and abusive judges.”

Suzanne M. Blonder,
Senior Counsel, HALT
The Legal Reformer, April-June, 2008, http://www.HALT.org.

Presently, the doctrine of judicial immunity, which gives broad protection to judges for their judicial activities, is supported by two pillars that judges have erected for themselves.  The first is exemplified by the 1978 Supreme Court ruling in Stump v. Sparkman: "A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority." [13]  That ruling insures that judges cannot be sued for errors committed while on the bench.

The second pillar is the set of rules implemented by the Judicial Conference pursuant to the Judicial Conduct and Disability Act of 1980 (28 U.S.C. §§351-364), which regulates federal judicial discipline and complaints filed by litigants against federal judges.  These rules generally provide judges with the means to dismiss complaints against them.

The public has been vocal in its dissatisfaction with the way judges have dealt with complaints against their colleagues, and in 2004 — responding to similar concerns raised by Congress — the late Chief Justice William Rehnquist appointed a committee of judges, led by Justice Stephen Breyer, to gather data on how complaints against judges are handled and to offer recommendations.

The Breyer Committee Report, completed in September, 2006, concluded that very little needed to be changed in the way that federal judges police themselves, and in July, 2007 Breyer's Committee on Judicial Conduct and Disability released its "Draft Rules Governing Judicial Conduct and Disability Proceedings" for public comment [14].  These draft rules, now adopted, have stirred public controversy.

According to figures published by the Administrative Office of the U.S. Courts, about 99.8 percent of the reported 7,462 judicial misconduct complaints filed during the 10-year period of 1997-2006 were dismissed with little or no explanation, regardless of merit [15].  Confidentiality rules have prevented the public and members of Congress from inspecting these complaints.


Fate of Complaints Against Federal Judges from 1996 -2008
(More than 99.8% were either dismissed or withdrawn)

Dismissal of Judicial Complaints

The author is grateful to Dr. Richard Cordero who originally compiled this data and demonstrated that the overwhelming majority of complaints against federal judges are dismissed.  Discipline is usually a private or public admonition and only rarely leads to an unseating.

Note that, in 2008, the U.S. Courts changed the way in which the disposition of complaints is reported.  They have increased the number of categories, removed subtotals, and generally obfuscated the fates of individual complaints in a manner that makes accurate statistical analysis more difficult.  These changes follow adoption of the 2006 Breyer Committee Report [PDF].


The new "Rules Governing Judicial Conduct and Disability Proceedings" [PDF] adopted at the March 11, 2008 meeting of the Committee on Judicial Conduct and Disability, now renders meaningless any complaint alleging that important evidence was ignored or misrepresented, or that a judicial outcome was invalid because of bias or a conflict of interest.  Such allegations would be automatically considered "merits-related" and dismissed without further investigation, even though existing law does not require automatic exclusion of "merits-related" complaints [16].

Separation of Powers

There is an inherent conflict of interest when judges both police themselves and dictate the rules that govern how they can be disciplined, and this can lead to abuses of judicial authority.  Incidents of such abuse have spawned nationwide, grass-roots movements calling for the creation of an alternative disciplinary mechanism, outside the federal judiciary, to review judicial misconduct.

Public disquietude over the performance of judicial self-discipline has attracted the attention of lawmakers whose revived concern regarding this issue has the potential to trigger a separation of powers conflict between the judicial and legislative branches of government.

In 2006, Representative F. James Sensenbrenner, Jr. (R-Wis.), then House Judiciary Committee Chairman, and Senator Charles Grassley (R-Iowa), a Member of the Senate Judiciary Committee, introduced legislation that would establish an independent Inspector General for the Judicial Branch [17].  Although these bills, reintroduced in 2007 and strongly opposed by the American Bar Association [18], were never brought to a vote, the concept of an extrajudicial disciplinary mechanism which they raised has generated a great deal of interest among legislators and citizens concerned with judicial reform.

The U.S. Constitution clearly gives Congress the power to regulate the functioning of the courts and define what constitutes "good behaviour" of judges.  Article III, Section 1, which created the Supreme Court, also endowed Congress with the power to "ordain and establish" all lower courts.  It states:

“The judicial power of the United States shall be vested in one supreme court, and in such inferior courts as the Congress may from time to time ordain and establish.  The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office.”

Implied in the constitutional establishment of the courts is establishment of the rules and regulations that define their structure and operation.  The question now is whether Congress can make the judiciary return the policing power that the Judicial Branch has gradually usurped as Congress trustingly looked on.  Only when a critical mass of disaffected citizens applies sufficient pressure on its representatives will Congress recognize that it not only has the constitutional authority, but also a mandate from the people to restructure the judicial component of government that has become corrupted by self-serving regulation and subservience to special interests.

Legislation

Over time, judges have devised an elaborate mechanism of immunity that they can invoke to justify nearly any action taken in connection with the adjudication of a case.  The abuse of discretion often takes the form of an interest in the outcome of the case, such as a desire to please one of the parties for reasons that include friendship, political affiliation, a business or employment relationship, campaign contributions and so forth.  What protects these judges is knowing that complaints made against them for having a conflict of interest are reviewed by other judges and are invariably dismissed.  Many complaints have also been averted because the conflict of interest was successfully concealed from the disfavored party in a proceeding.

Canon 3C of the Code of Judicial Conduct, adopted in 1990 by the American Bar Association states, in part: "A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned..." and according to law professors Jeffrey Shaman, Steven Lubet and James Alfini: "It is not the duty of the parties to search out disqualifying facts about the judge ... it is the judge's obligation to disclose all possibly disqualifying facts." [19].  Unfortunately, no means of enforcing the codes of conduct exists, and judges freely disregard them.

The U.S. Constitution gives Congress the power to regulate the functioning of the courts and to define what constitutes acceptable behavior of judges.  Among the legislative regulations adopted by Congress is the federal recusal statute, U.S. Code Title 28 §455, which begins in paragraph (a): "Any justice, judge or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned."

The recusal statute then proceeds to specific instances in which a judge must recuse himself or herself, and here is the logical place to include language that would expand and state, in particularity, additional instances that would make it illegal for a judge to sit in a case because of a defined conflict of interest.

Of course, any law that is not enforced is tantamount to no law at all.  The author strongly recommends the inclusion of penalties for the law's violation as well as procedures for referring alleged violations to an arm of law enforcement for review.  Ideally, allegations of judicial misconduct would be referred to an office of an independent Inspector General which would have the authority to convene a Special Grand Jury to review the charges and either dismiss the case, impose a penalty if the charges were found valid, or refer the case to higher authorities if criminal activity was suspected.

A Universal Solution

Whether a judge ascends to the bench through election or appointment, there is no guarantee of the integrity, honesty or skill that he or she will bring to any particular case.  One way to insure the integrity of judicial proceedings is to make certain that the judge is held accountable for breaches of conduct that could destroy the essential element of due process in a proceeding.

An inspired mechanism for preventing such unlawful judicial conduct was first advanced by a California minister, Ronald Branson, whose extensive experience in the courts as a plaintiff qualifies him to understand the nature of a hostile court system.  Among Branson's bona fides are 14 pro se cases that were pursued all the way to the U.S. Supreme Court (and uniformly denied).  In 1995, Branson proposed a universal solution to discourage prejudicial behavior through a unique method of processing complaints against judges.  His proposal, now termed Judicial Accountability Initiative Legislation (J.A.I.L.), was presented via the Internet to the general public for approval and support, and it has found advocates in every state [20].

The strength of the J.A.I.L. initiative is that it is not intended to address the merits of any case but is strictly limited to the procedural process — specifically to willful breaches of due process that involve seven types of judicial misconduct: 1) Deliberate violation of law; 2) Fraud or conspiracy; 3) Intentional violation of due process; 4) Deliberate disregard of material facts; 5) Judicial acts without jurisdiction; 6) Blocking of a lawful conclusion of a case; and 7) Deliberate violation of the Constitution of the State or of the United States.

As originally conceived, the Secretary of State would have the authority to select members of Special Grand Juries that would review complaints against judges.  Each Grand Jury would be empowered to chose its own officers, define the procedures for review of the complaints, conduct investigations into the allegations of misconduct and make recommendations based on their findings.  Details of the process have been published for each state and are similar to the proposition that was on the South Dakota ballot in 2006 [21].  That ballot initiative, the first of its kind in the nation, failed to pass after being fiercely opposed by the legal establishment [22].

For complaints against federal judges, an independent Inspector General with offices in the district courts could impanel similar Special Grand Juries to review complaints against the judges.  Presently, the U.S. Department of Justice does have an Inspector General, but its scope of activities are limited to investigations and audits within that Department [23].  It does not contain a Judicial Oversight Division.  That deficiency could be remedied either through the creation of a Judicial Oversight Division or, preferably, the establishment, as mentioned above, of an independent Inspector General [24] whose primary function would be judicial oversight, and whose offices would process complaints against federal judges by means of Special Grand Juries in the manner described by the J.A.I.L. initiative.

The American system of justice, as presently constituted, is failing to meet citizens' expectations of impartial tribunals as guaranteed by the U.S. Constitution.  Clearly, judges must be held accountable for unlawful conduct.  Mechanisms toward that end must be implemented to restore the public's confidence in the integrity of its judicial system.


Carl Bernofsky
July 24, 2008
Amended 12/11/2016



References
  1. Zach Patton, "Robe Warriors; If you think judges should be above petty politics, try not to watch them campaign this year." Governing.com, March, 2006 Issue, http://www.governing.com/articles/0703judges.htm, accessed 07/19/08.

  2. Vernon V. Palmer and John Levendis, "The Louisiana Supreme Court in Question: An Empirical and Statistical Study of the Effects of Campaign Money on the Judicial Function," Tulane Law Review, Vol. 82, Issue 4, 1291-1314 (2008).

  3. Michael J. Goodman and William C. Rempel, "In Las Vegas, They're Playing With a Stacked Judicial Deck.  Some judges routinely rule in cases involving friends, former clients and business associates — and in favor of lawyers who fill their campaign coffers," Los Angeles Times, June 8, 2006.

  4. Adam Liptak and Janet Roberts, "Tilting The Scales: The Ohio Experience. Campaign Cash Mirrors a High Court's Rulings," New York Times, October 1, 2006.

  5. Dorothy Samuels, "Judges for Sale; It is long past time to drain the influence money from America's system of justice," The New York Times, December 12, 2006.

  6. Martin A. Dyckman, "A Most Disorderly Court: Scandal and Reform in the Florida Judiciary," University Press of Florida, 2008, 256pp.  See also: Bob Sherin, Justice Disrobed, http://fraller.com/SunshinePress/Justice_Disrobed.html, accessed 07/01/08.

  7. Laura Stafford and Samantha Sanchez, "Campaign Contributions and the Louisiana Supreme Court," The Institute on Money in State Politics, July 14, 2003, http://www.followthemoney.org/press/LA/20030715.pdf, accessed 07/19/08.

  8. Marcy E. Mullins, "Big money erodes judges' credibility," USA Today, October 20, 2006, http://blogs.usatoday.com/oped/2006/10/2nd_edit_filena.html, accessed 12/15/06.  See also: Linda Casey, "Money in Judicial Elections, 2009-2010," April 6, 2012, http://www.followthemoney.org/press/ReportView.phtml?r=485, accessed 08/01/2012.  [In 2009-2010, lawyers, lobyists and law firms accounted for 33% of the $45 million in contributions to candidates running for seats on the high court or appellate courts in states in which judges hold elected positions.]

  9. Louisiana Supreme Court, "Statement of Chief Justice Pascal F. Calogero, Jr., Louisiana Supreme Court," 2008 Press Releases, June 12, 2008, http://www.lasc.org/press_room/press_releases/2008/ Statement_of_Chief_Justice_Calogero_June_12_2008.pdf (delete space), accessed 07/18/08.

  10. See: League of Women Voters of the United States, http://www.lwv.org/AM/Template.cfm?Section=Home, accessed 07/21/08.

  11. See: "Public Notes on 01-SR21," http://www.ontheissues.org/Notebook/Note_01-SR21.htm, accessed 09/07/08.

  12. See: "S. 1388 [107th]: Election Day bill," http://www.govtrack.us/congress/bill.xpd?bill=s107-1388, accessed 09/07/08.  Note also: In 2005, Senator Barack Obama (D-IL), introduced a bill (S. 1975) that would prohibit deceptive practices in Federal elections.  That bill also died in committee.

  13. Wikipedia, "Stump v. Sparkman," http://en.wikipedia.org/wiki/Stump_v._Sparkman, accessed 04/04/08.

  14. Committee on Judicial Conduct and Disability of the Judicial Conference of the United States, "Draft Rules Governing Judicial Conduct and Disability Proceedings," http://www.uscourts.gov/library/judicialmisconduct/commentonrules.html, accessed 04/04/08.  See also: HALT (Help Abolish Legal Tyranny), http://www.halt.org/jip/pdf/Comments_on_Judicial_Conduct_and_Disability.pdf, accessed 04/04/08.

  15. See: Judicial Business of the United States Courts, http://www.uscourts.gov/judbususc/judbus.html, accessed 09/17/07.  Data summary courtesy of Dr. Richard Cordero, http://www.judicial-discipline-reform.org/judicial_complaints/complaint_tables.pdf, accessed 03/09/08.  See also: Cordero's essay on the Supreme Court's attitude toward dismissal of judicial complaints, http://judicial-discipline-reform.org/docs/SCt_knows_of_dismissals.pdf, accessed 04/04/08  See also: Annual Reports of the Director, U. S. Courts, Tables S-22, S-22A and S-22B, http://www.uscourts.gov/judbususc/judbus.html, accessed 04/12/10 .

  16. See: Center for Judicial Accountability, http://www.judgewatch.org, accessed 04/04/08.

  17. "Sensenbrenner, Grassley Introduce Legislation Establishing an Inspector General for the Judicial Branch" [News Advisory, April 27, 2006], http://judiciary.house.gov/media/pdfs/judgeIGintro42706.pdf, accessed 04/04/08.

  18. "A Firm Stand: ABA Opposes Bills to Create Inspector General for Federal Courts," http://www.abajournal.com/magazine/a_firm_stand, accessed 04/04/08.

  19. Shaman, J.M., Lubet, S., Alfini, J.J., Judicial Conduct and Ethics, 2 ed., Michie Law Pub., Charlottesville, VA (1995), p. 146.

  20. See: JAIL4Judges, http://www.jail4judges.org, accessed 04/04/08.

  21. See: "South Dakota Amendment E, Judicial Accountability Initiative Law (J.A.I.L.)."

  22. See: "Views & News Relating to South Dakota Amendment E."

  23. U.S. Department of Justice, Office of the Inspector General, http://www.usdoj.gov/oig/offices/organization.htm, accessed 07/24/08.

  24. Ronald D. Rotunda, "Judicial Transparency, Judicial Ethics, and a Judicial Solution: An Inspector General for the Courts," Loyola University Chicago Law Journal, Vol. 41, 301 (2009).


ALTERNATIVE JUDICIAL FIXES

2007 INSPECTOR GENERAL BILLS

SENSENBRENNER BILL, 2006 (PDF)

IMPEACHABLE OFFENSES

LOUISIANA SUPREME COURT

ELECT OR APPOINT



Links Related to Election Versus Appointment