The Judicial Discipline System Established in 28 U.S.C. § 372 Is Not Acting as an Effective Deterrent
Federal judges are taking trips funded by corporate litigants, ruling despite financial
conflicts and omitting basic information from financial disclosure forms. One searching for an explanation need look no further than recent statistics from the Administrative Office of the U.S. Courts regarding judicial disciplinary actions pursuant to the process established in 28 U.S.C. § 372. These statistics, summarized in an April 1998 story by the Kansas City Star, demonstrate that the judicial discipline system is not working effectively to deter ethical violations.
According to the Star, in fiscal years 1996 and 1997 more than 1,000 formal complaints were filed against federal judges nationwide. The chief judges' decided that not one of these cases required official discipline. Indeed, the chief judges failed to send a single complaint on to the next level in the complaint process: investigation by a committee of judges. In more than 450 cases, complainants appealed the dismissal of their complaint to the judicial council of an appellate court. These councils rejected every appeal.
Undoubtedly, many of these complaints were filed by disgruntled litigants and warranted no disciplinary action. But given the evidence that suggests that ethical transgressions do occur with some regularity, it strains credibility to suggest that not one of over 1,000 formal complaints warranted any official disciplinary action.
As every judge knows, the law only works if there are penalties for its violation. In the case of transgressions by judges of legal and ethical standards, there appears to be no effective deterrent. This is reflected in the persistence of stock conflicts and non-disclosures despite explicit rules and clear reminders from the Administrative Office. It is also reflected in the cavalier reaction of many judges to reports of improprieties. For example:
- Judge Tom Stagg of Louisiana responded to proof that he failed to disclose a junket by telling the Washington Post: "The food was wonderful; the teachers were wonderful. If somebody doesn't like it, I'm sorry."
- When the Kansas City Star confronted Judge Ancer Haggerty with evidence that his financial disclosure form omitted basic information on his stock holdings, he refused to detail his actual holdings claiming: "You are entitled to these reports, but that is all you are entitled to."
- When asked by the New York Daily News if he had read the financial disclosure form upon which the judge certified, inaccurately, that he had not ruled in any cases where he had a financial conflict, Judge Whitman Knapp replied: "Heavens, no! It wouldn't have any meaning to me."
Douglas T. Kendall
November 29, 2001
Exerpted from the testimony of Douglas T. Kendall, Executive Director, Community Rights Counsel (http://www.communityrights.org), delivered November 29, 2001 to the House Committee on the Judiciary, Subcommittee on Courts, the Internet and Intellectual Property, Oversight Hearing on Operation of Federal Judicial Misconduct and Recusal Statutes. The complete nine-page transcript is available at the Web site of the Community Rights Counsel (accessed September 16, 2003).