An inspector general — tasked with handling misconduct complaints and conducting audits of processes, procedures and expenditures — could improve operations and increase public confidence in the judicial branch. Yet the judiciary has long resisted an inspector general.
The main arguments against an inspector general are that the courts must maintain institutional and decision-making independence, and that adequate mechanisms already exist to handle problems — within the Administrative Office of the U.S. Courts, the Judicial Conference of judges, Circuit Judicial Councils, working groups of judges and the Office of Judicial Integrity. Chief Justice John G. Roberts Jr.’s year-end report recently highlighted these arguments. He also noted that the percentage of cases of financial conflicts for judges was small compared with the total number of cases before the courts.
The judiciary’s concerns about interference with its independence are legitimate. So let me be clear: An inspector general should not have any authority over judicial decision-making. However, the judiciary is an enormous institution, with numerous judges and support staff. For 2022, it has requested a budget of more than $8 billion. In any organization as large as this, some misconduct, waste and abuse will occur. A dedicated, internal inspector general could help detect, deter and properly investigate these problems — and ensure greater public confidence when complaints are not substantiated or dismissed.
No one likes having a watchdog, as I well know. I was an inspector general for more than 15 years. When the role was established, many agencies viewed inspectors general as a headache they didn’t need. But now there is an inspector general in most federal agencies — for good reason.
For example, when the IG Act was enacted in 1978, the Justice Department claimed it did not need an inspector general in an agency of lawyers and that an IG would compromise its independence. Similarly, when I was inspector general at the Justice Department, the FBI argued that the inspector general should not have investigative authority over the FBI because we did not have the expertise to understand FBI investigations and would second-guess decisions.
None of that proved true. After Attorney General John Ashcroft issued an order in 2001 giving the Justice Department inspector general full oversight authority of the FBI, we credibly investigated allegations of misconduct and uncovered problems with FBI computer upgrades, misuse of national security letters, inadequate internal security procedures in the case of Robert Hanssen (“the most damaging spy in FBI history”) and other problems within the FBI that its own inspections had not identified.
As in the judiciary, misconduct and other problems were not pervasive throughout the FBI or the Justice Department. But they existed. And the benefit of — and need for — a dedicated inspector general has become clear over time.
The inspector general role within the judiciary could and should be structured to address concerns about institutional independence. In certain federal agencies, inspectors general are appointed by the president and subject to Senate confirmation. In others, the agency head appoints the inspector general. For the judiciary, the chief justice could appoint the inspector general. The inspector general could report to the chief justice or the head of the Administrative Office of U.S. Courts, rather than to both the agency and Congress. This single-reporting requirement would advance the interests of separation of powers.
In addition, while inspector general audit and investigative reports are normally released publicly, there could be exceptions in the judiciary, as in other federal agencies, to prevent the release of reports in specific circumstances. And like other inspectors general, a judiciary inspector general would not have management responsibilities for the judiciary. Inspectors general have the authority only to make recommendations; they cannot impose changes.
It is important to select the right person for the position. There is an expression in the inspector general community: “If you’ve seen one IG, you’ve seen one IG.” The judiciary inspector general would need to be someone who understands the judiciary and the courts, and who has the discretion, independence and backbone to handle the sensitive responsibilities effectively.
Of course, an inspector general doesn’t prevent all an agency’s problems. But an inspector general within the federal judiciary could help improve processes, deter waste, identify problems before they arise, and ensure that any allegations of misconduct are investigated effectively and with credibility. This could be accomplished without compromising the judiciary’s necessary independence — and, in the process, enhance public trust in the institution.