Clarity for the Judiciary

Wednesday, May 11, 2005

HOUSE JUDICIARY Committee Chairman F. James Sensenbrenner Jr. (R-Wis.) packed a lot of ideas -- good, bad and interesting -- into a brief speech on the judiciary at Stanford University this week. The chairman addressed such controversial topics as impeaching judges, splitting the U.S. Court of Appeals for the 9th Circuit, judicial ethics, the use of foreign law in American courts and the creation of an inspector general for the judiciary. Given the recent crude attacks on judges by prominent conservatives, Mr. Sensenbrenner's remarks deserve attention -- but also call for clarification.

On the positive side, Mr. Sensenbrenner decisively rejected the notion that Congress should respond to cases such as the Terri Schiavo matter "by attempting to neuter the courts" through the impeachment of judges. Judicial independence has no meaning if Congress reserves the right to remove judges from the bench when it disagrees with their opinions. Having a Judiciary Committee chairman who understands that, particularly in the current climate, is important.

Unfortunately, Mr. Sensenbrenner did not forswear all retaliation against judges. Even in rejecting impeachment, he warned ominously, "This does not mean that judges should not be punished in some capacity for behavior that does not rise to the level of impeachable conduct." Moreover, he reserved the right to tinker with the courts' jurisdiction, noting that "the lower federal courts function with Congress's blessing."

An aide to Mr. Sensenbrenner says that he did not mean to suggest punishing judges for their opinions, rather that he was talking about the need to enhance the process for adjudicating judicial ethics complaints. Mr. Sensenbrenner rightly has been concerned for some time about the anemic judicial ethics process. It is critical, however, that he distinguish clearly -- as his speech does not -- between punishing judges for unethical or improper behavior and punishing judges for issuing opinions with which he disagrees.

By the same token, Mr. Sensenbrenner needs to clarify his idea for an inspector general within the judiciary. As long as such a person reports to the chief justice, not to Congress or the executive branch, such an office could conceivably serve a useful oversight function. But it is not clear that the courts need an inspector general. Other agencies have them to investigate claims of waste, fraud and abuse; this is hardly the concern that animates current conservative anxiety about the courts. And it should be unthinkable for any such office to be empowered to address the matters that do rankle the right -- that is, the way judges handle cases and the substance of what they rule. The appropriate remedy for an errant opinion, in the American constitutional system, is not an investigation but an appeal.

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