Judicial Discipline to Be Examined
Rehnquist Names Panel in Response to Ethics Controversies
By Mike Allen and Brian Faler
Washington Post Staff Writers
Wednesday, May 26, 2004; Page A02
Chief Justice William H. Rehnquist has named a high-level panel to investigate the federal courts' handling of judicial misconduct, court officials said yesterday.
Rehnquist named the committee with a statement that acknowledged criticism by Congress of judicial handling of ethics issues. Justice Stephen G. Breyer will chair the six-member panel, according to a statement published this week in the newsletter of the federal courts. The committee will hold its first meeting next month in Washington.
"There has been some recent criticism from Congress about the way in which the Judicial Conduct and Disability Act of 1980 is being implemented, and I decided that the best way to see if there are any real problems is to have a committee look into it," Rehnquist said in the statement.
David Sellers, a spokesman for the Administrative Office of the U.S. Courts, said the panel was created in response to comments by House Judiciary Committee Chairman F. James Sensenbrenner Jr. (R-Wis.), who told the U.S. Judicial Conference on March 16 that Congress "will begin assessing whether the disciplinary authority delegated to the judiciary has been responsibly exercised and ought to continue."
Sensenbrenner complained at the conference, which Rehnquist attended, that another judge had "whitewashed" a complaint the Wisconsin Republican had filed against Judge Richard D. Cudahy of the U.S. Court of Appeals for the 7th Circuit, based in Chicago.
Separately, Supreme Court Justice Antonin Scalia became the butt of editorial cartoons and late-night talk show hosts after he accepted a flight on Air Force Two and went hunting with Vice President Cheney in Louisiana in January, three weeks after the high court agreed to hear a challenge to the secrecy maintained by a White House energy policy task force that the vice president headed.
Scalia said in a 21-page memo published in April that he had done nothing wrong and would not recuse, or disqualify, himself from the case. "If it is reasonable to think that a Supreme Court justice can be bought so cheap, the nation is in deeper trouble than I had imagined," he wrote.
Several legal scholars said Rehnquist's panel has the potential to increase the accountability of the most secretive branch of government. The creation of the panel was first reported by the Associated Press.
The act of Congress cited by Rehnquist defines judicial misconduct and articulates the standards for judges to use when deciding whether to recuse themselves from a case in which they, a spouse or a child might have, or be seen as having, an interest. That can include a financial interest or membership on a board involved in the case. The act applies to lower federal courts and does not mention the Supreme Court.
Ronald D. Rotunda, an authority on judicial ethics at George Mason University, said judges "need brighter lines, and the prestige of the court is hurt when people are able to attack judges, citing statutes that have very open-ended and vague meanings."
"The federal courts need to show they are concerned about these incidents and are not above the law," he said. "Right now, you have fuzzy and formless rules that invite third parties to accuse the justices of unethical conduct, and encourage litigation and second-guessing of decisions."
In addition to Breyer, the other five members are: Judge J. Harvie Wilkinson III, former chief judge of the U.S. Court of Appeals for the 4th Circuit, based in Richmond; Judge Pasco M. Bowman II, former chief judge of the U.S. Court of Appeals for the 8th Circuit, based in St. Louis; Judge D. Brock Hornby, former chief judge of the U.S. District Court for the District of Maine; Judge Sarah Evans Barker, former chief judge of the U.S. District Court for the Southern District of Indiana; and Sally M. Rider, the chief justice's administrative assistant.
Rehnquist's statement gave little information about the committee's mission, which is "to evaluate how the federal judicial system is dealing with judicial misbehavior and disability."
The announcement said the last comprehensive look into the judicial discipline system was performed by the National Commission on Judicial Discipline and Removal, which issued a report in 1993. The committee, which will have help from the staff of the federal courts, is to report to Rehnquist.
Staff writers Carol D. Leonnig, Helen Dewar and Jerry Markon contributed to this report.
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