Title

The Federal Judicial Conduct and Disability System: Unfinished Business for Congress and for the Judiciary

Document Type

Response or Comment

Publication Date

4-25-2013

Publication Title

Hearing Before the House Committee on the Judiciary -- Subcommittee on Courts, Intellectual Property, and the Internet

Abstract

For most of the nation’s history, the only formal mechanism for dealing with misconduct by federal judges was the cumbersome process of impeachment. That era ended with the enactment of the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 (1980 Act or Act). In 2002, Congress made modest amendments to the Act and codified the provisions in Chapter 16 of Title 28. In 2008, the Judicial Conference of the United States – the administrative policy-making body of the federal judiciary – approved the first set of nationally binding rules for misconduct proceedings.

Under the 1980 Act and the 2008 Rules, complaints of misconduct by federal judges are handled under a system that has aptly been described as one of “decentralized self-regulation.” That system is sound and does not require fundamental restructuring. At the same time, the experience of the past few years has revealed gaps and deficiencies in the regulatory regime that warrant attention. Some may be appropriately dealt with through revision of the judiciary’s 2008 Rules, but others should be addressed by Congress through changes to Chapter 16.

In this statement, submitted at a hearing of the House Judiciary Committee, the author suggests statutory amendments dealing with three aspects of the system: transparency and disclosure; disqualification of judges; and review of orders issued by chief judges and judicial councils. In each of these areas, the judiciary has promulgated rules that reflect sound policy but are in conflict or tension with statutory language. Moreover, these elements are more than procedural; they determine who makes the decisions and how much information the public receives. The author also suggests several steps that can be taken by the Judicial Conference without any further authorization by Congress. By implementing these suggestions, Congress and the judiciary can update Chapter 16 and the misconduct rules to reflect the best practices developed by the Judicial Conference and by individual judges over the years.

The statement is followed by an Appendix that includes transcripts of oral colloquies at the hearing as well as the author’s response to a written question from a member of the Judiciary Committee.

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