By Ronald D. Rotunda
Thursday, December 21, 2006
The Judicial Transparency and Ethics Enhancement Act of 2006, now before Congress, would create an inspector general for the courts. It offers modest reforms that would keep our judiciary independent (because no one favors a dependent judiciary) and help keep it accountable (because no one favors a judiciary that is above the law).
Nonetheless, there are those who greet it the way Dracula would greet a bouquet of garlic. Justice Ruth Bader Ginsburg, for example, has said of the proposal: "That's a really scary idea."
On the contrary, this bill would strengthen judicial independence because it would give people greater faith that if there were problems, the inspector general for the courts would deal with them and not sweep them under the rug. An inspector general would also protect judges from frivolous or false charges.
There are already 57 inspectors general for other organs of government -- for the Justice Department, Iraq reconstruction and so forth. The House of Representatives has imposed an inspector general on itself. Indeed, one wonders why it has taken so long to create one for the courts.
Giving an IG the power to audit federal judicial expenditures, to recommend changes in laws or regulations governing the judicial branch, and to investigate fraud, waste and abuse, is a modest reform that would not dislodge the heavens. That's why the House Judiciary Committee recently voted in favor of this bill by a bipartisan majority of 20 to 6.
After I testified in favor of the legislation in June, I received many supporting letters. For example, a federal judge, John Kane (who gave me permission to quote his e-mail), wrote, "I've been a district judge for 29 years and think the federal judicial house has brought this legislation on itself." He sat on the 10th Circuit Judicial Council when the first complaint about a judge came up for consideration: A district judge was trying to coerce counsel into establishing a library on product liability cases in honor of the judge.
Judge Kane's e-mail is worth quoting at length. He voted for discipline. The vote was 3 to 3, "and so the Chief Judge voted against sustaining the complaint because it was the first such complaint and he thought a close vote was too slender a reed upon which to proceed. As we were leaving the meeting, one of the judges who had voted to dismiss collared me and said, 'John, think about it. The next time it could be you or me. We've got to stick together.' "
Kane added, "I've recently heard of a number of judges who ruled on cases involving companies in which they owned an interest, yet nothing was done about it. The point is that the current system is a 'kiss your sister' operation that hasn't worked and won't as long as judges are covering one another's butts. The present system is ineffectual and I think that could be demonstrated by the very sorry record."
Other judges may not favor these conclusions but they do not dispute the facts. Justice Stephen Breyer's commission on judicial discipline recently reported that the judiciary failed to conduct a proper investigation of judicial misconduct in five of 17 "high visibility cases" between 2001 and 2005. This error rate, the report admitted, is "far too high."
We can do better.
Right now the discipline process is conducted largely in secret. The proposed bill would give us sunlight, the best disinfectant. As for the independence of the judiciary, the proposed bill provides that the chief justice would appoint, and could remove, the inspector general. Federal judges already have lifetime tenure and salary protection. Giving them an inspector general whom the chief justice appoints and removes would not interfere with their independence.
Opponents of this bill say that the sky is falling. But it is not falling. There are no cracks in the sky. There are not even pre-fracture incipient fissures in the sky. Instead there is a real need for change.
The writer is university professor and a professor of law at George Mason University.