Toiling away in the federal bureaucracy are nearly 1,200 members of what has come to be known as the "hidden judiciary" -- the nation's administrative law judges.
They tend for the most part to keep a low profile. They may be well-known to the attorneys who practice before them, but to the general public they remain faceless.
That may be ending. There is an attempt pending to take away their life tenure status and put them on distinct limited terms, while some ALJs are beginning to speak out on the same issues that plague them and the more prestigious federal trial judges alike.
One of those issues is attorney competence. And one of the ALJs who is concerned about it -- and speaking out about it -- is Administrative Law Judge Joseph B. Kennedy of the Federal Mine Safety and Health Review Commission. In a speech prepared for delivery today before an energy group in Las Vegas, Kennedy said incompetent attorneys flourish in the administrative agency practice.
"Lack of zeal in preparation is the principal problem," Kennedy said in his prepared remarks. He believes one answer is to give the ALJ more power in controlling the conduct of attorneys who practice before them to ensure the diligence of counsel and discourage incompetence.
He said administrative law judges should take a more active role in cases they hear and assume "imaginative control of the proceeding." Lawyers sometimes "enjoy testing the judge to see how far they can go and how much they can get away with.
"The attorneys, and especially government counsel, are well aware of the fact that the law judge has little or no power to hold them accountable for an unprofessional or incompetent performance."
Kennedy noted that the art of cross-examination has been described by observers as "the greatest engine invented for the ascertainment of the truth. But the truth is that in the hands of most counsel, the engine performs very poorly. As I see it practiced, it consists mostly of argumentative questioning of witnesses who have little to fear from ill-prepared counsel who are mostly shooting in the dark."
His view of the adversary process is that it achieves truth "only as a convenience, a byproduct or an accidental approximation."
Kennedy is entitled to his views, and is probably willing to give them freely because of his protected life tenure status. However, many lawyers who practice before administrative law judges say some of the judges themselves are the real problems in administrative law practice.
Those attorneys would support an administration plan to have the judges come up for review every 10 years or so. That way, the attorneys say, the incompetent administrative law judges could be removed.
Whatever the final solution, it is clear that system is ready for serious review. The administrative law judges had better enjoy their life tenure while they still have it, and speak out while they can.