Judge Thyself -- and Soon

By Andrew Cohen
Special to washingtonpost.com
Wednesday, May 24, 2006 12:00 AM

You don't have to be a Washington insider to know that federal judges are under enormous political pressures these days from conservatives in Congress who want to limit the power and the authority of the bench. So what are too many otherwise bright federal judges doing? They reportedly are violating ethics rules, sloppily and sometimes arrogantly, and thereby giving their political enemies valuable traction in the battle between the branches. In fact, these regular tormentors of the judiciary are back, circling around the robed flock these days with their latest bad idea.

Four weeks ago, the Washington Post's Joe Stephens reported "about a dozen" ethical lapses by federal appeals court judges who failed to disclose travel expenses or who didn't properly let parties know about financial conflicts in the cases over which they were presiding. The New York Times, meanwhile, citing a nonprofit public-interest law firm, says that federal judges of all stripes have gone on more than 1,000 "educational" junkets in the past 15 years. And the potential for conflict-of-interest problems, visible most recently during the Supreme Court nomination battle of Justice Samuel A. Alito, Jr., is getting worse not better as investment portfolios grow more complex and corporations and industries more interwoven.

So while there is no chaos and malfeasance of the sort we see in Congress, there is within the judiciary a bit of a problem of style and substance. Judges should know who is paying for their cozy retreats and educational seminars and they should let us in on it, too; they should be wary of privately hob-nobbing with folks who have a political or legal agenda; they should go out of their way to recuse themselves from cases as the rules suggest. And, most important, judges at least should have the temerity to level with people when they are asked to disclose whether they've brushed up against the line in any of these cases -- Stephens' fine reporting suggests otherwise.

We hold -- and we should hold -- our life-tenured judges to a higher standard than we do our regularly-elected officials. The judiciary, in the words of Sen. Patrick Leahy (D. Vt), must "be beyond reproach -- in appearance, and otherwise." So, the question is: How best can this mission be accomplished? Leahy and others think the judicial branch can do it with just a narrow, focused push from Congress. Conservatives in the House and Senate think the latest perceived downtick in judicial ethics is a great opportunity for them to try to take further power away from the courts, for good, and in ways that are replete with dangerous consequences, both intended and not.

Obviously void of any sense of irony or shame, unwilling to curtail their own ethical abuses and unable to give the judiciary more time to continue to try to fix itself, Congressional conservatives have proposed legislation to staunch the supposed tide of "waste, fraud and abuse" among Article III judges by creating an office of the "Judicial Inspector General," which would in turn "conduct investigations of matters pertaining to the Judicial Branch." The idea is to get a strong-armed cop into the judiciary itself so that judges won't be so lax about reporting their trips or their financial connections to litigants.

Under the proposed legislation, offered in part by Rep. James Sensenbrenner (R-Wis) and Sen. Charles Grassley (R-Iowa), the new Judicial Inspector General would be appointed by the Chief Justice of the United States after consulting with congressional leaders. In the House version, the Supreme Court would be excluded from review by the Inspector General. In the Senate version, even the Justices themselves could be investigated by the Inspector General despite the fact that the Chief Justice would appoint the Inspector General. If your head is spinning about the conflicts inherent in that arrangement you are not alone. (all from text of proposed bill)

But it gets worse. Under either version, the new Inspector General would have subpoena power to "obtain information or assistance from any Federal, State, or local governmental agency" and to have access to "all information kept in the course of business" by, among other entities, the "United States Sentencing Commission." So the same folks who famously tried to require judges a few years ago to stop giving lighter sentences even when they were legally warranted in doing so now want the power to subpoena sentencing information from some of those very judges.

So vague and ambiguous is the potential scope of the "Judicial Transparency and Ethics Enhancement Act" of 2006, as its sponsors label it, that it ought to be called instead the "Constitutional Crisis Creation Act of 2006" because as sure as you are reading this, the bill, if it makes it into law, will be used by some creepy Judicial Inspector General sometime to go after some federal judge somewhere who has done nothing wrong but interpret the Bill of Rights in a manner that the Inspector General doesn't happen to agree with. It's like Marlon Brando's character in "Guys and Dolls" -- just when someone tells you that the Jack of Spades can't jump out of the deck and spit cider in your ear we'll all be washing cider out of that ear.

If Congress is serious about requiring judges to take their ethical obligations more seriously, or at least pushing the Judiciary along strongly and clearly in that area, legislators ought to take a closer look at Sen Patrick Leahy's (D-Vt.) narrow pitch. Instead of creating a whole new layer of bureaucracy, Leahy instead is offering legislation that simply and specifically tackles the two areas of concern. Since there is no reason to stop judges from traveling around the country to learn from one another, and from the rest of the world, since judges are permitted even required to undertake certain educational trips, Leahy wants to require those judges "to learn and disclose" to the public "the private sponsors of the seminars" that beget the junkets. And he wants to make more available to the public the judiciary's "recusal" lists which all judges are required to have.

You have it right. The "less-government" folks want more government in the form of a new office that will shadow judges like a vulture. They want another law that creates another avenue for another high-profile lawyer or partisan in the future to travel down on some windmill-tilting adventure. Meanwhile, the "more government" folks want to require the existing judicial offices and officers to act more responsibly and thus avoid the creation of yet another layer of bureaucracy within the judicial system.

One solution is an order of magnitude greater than the problem it purports to solve. One solution is measured. One comes from folks who already have declared their hostility to independent judges. One comes from folks who know that now more than ever we need a vital third branch of government. Too many bad ideas these days are becoming law. Perhaps it is still not too late to stop the latest bad idea -- "ethics enhancement" from the Gang that Couldn't Shoot Straight.

Andrew Cohen is an online columnist and the author of Bench Conference for washingtonpost.com. He is also CBS News' chief network legal analyst, where his online work appears on CBSNews.com .

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