Offering common sense solutions for judicial discipline.
How to file a complaint of judicial misconduct
Overview
Our original intent was to provide a short history of judicial discipline to offer perspective on where we've been and where we're going, to see how the complaint process came into being. We're not history buffs, and ordinarily would find this stuff kind of dry. But actually, we've found it interesting. And it can be helpful to know some history in writing complaints because you're going to have to educate a lot of judges.
As we continue to write complaints, research for same, and learn more, the history pages grew. So we thought we would break them up into digestible bites. Here then, is are milestones in the history of judicial discipline. Naturally, most of the action has occurred in the past few decades.
De-Evolution (The Decline and Fall of... )
Very early, in the infancy of our country, judges seemed more honorable. Embellishing from a recent DC court of appeals decision:
Edmund Burke justly referred to the "cold neutrality of an impartial judge." Cold or not, federal judges must maintain the appearance of impartiality. What was true two centuries ago is true today: "Deference to the judgments and rulings of courts depends upon public confidence in the integrity and independence of judges."
How's your confidence in the integrity and independence of judges today?
The sad fact is, the correction mechanism for the federal system is fatally flawed. About 25 years ago, Congress, ignoring the brilliant system of Checks & Balances our Founders gave us, abrogated its oversight responsibility and left it to judges to judge themselves. Hence, no more Checks & Balances. Like parents abrogating their oversight responsibility, letting teenagers rule themselves, the result is predictable. No discipline.
Worse, about every ten years (as we show), Congress blindly (or naively... or lazily?) listens to the judiciary assure it that all is well. As of this writing, the judiciary is once again evaluating itself and the judicial complaint system. The judges intend to interview "judges, administrators, and practicing lawyers" to hear them tell how well the system works. (Asking the public for input seems an after thought.) Do you think they will conclude there are any problems among the brethren?
As you might expect when you let the fox guard the hen house, there is virtually NO discipline of errant (bad) federal judges by judges in the judiciary, as documented by the judiciary's own reports. [Isn't the US a neat country? What other country will openly tell you what a bad job itƆs doing? Truly, we get the government we deserve.]
Here, then, are what we consider important milestones.
Milestones in the history of judicial discipline
We're woefully behind linking these bullet items. Sorry.
- (1788) In the beginning: The Constitution.
- (1803) Marbury. Usurpation begins.
Probably should be no surprise, but Chief Justice Roberts
thinks the early court was correct. - (1832) Jackson. The constitutional solution:
Everyone who swears to uphold the Constitution has veto power. - (1970) Chandler. The judiciary tries to discipline a judge. He sues.
- (1980) Chandler results in the Judicial Conduct and Disability Act of 1980.
- (1997) Judicial Reform Act of 1997. Senate threatens term limits due to run away judges. Judge Henry Politz reports "all is well"
- (2001) DC Court of Appeals uses Code of Conduct in case law to remove Judge Thomas Penfield Jackson from trial.
- (2002) Judicial Improvements Act of 2002. No real changes, even though some witnesses tell the truth.
- (2004) Chair of the House Judicial Committee reads the riot act to the Judicial Conference.
- (2004-present) ad-hoc Judicial Conduct & Disability Act Study Commission as a "response" to riot act.
- (2004 to present.) ABA proposed new (weakened) Code of Conduct. If passed in present form, neuters Code of Conduct, rending it impotent.
- (2005) Lawyer Stephen Yagman comes closer than anyone ever has in getting a Federal Judge disciplined. (Judge Real, of the 9th Circuit.)Judge Kozinski writes a scathing dissent. (We would really like to have the complaint, so we can post it on our Examples page.)
- (2006) Despite Judge Kozinski's scathing remarks, despite Judge Real escaping discipline for committing Grand Larceny, despite the fact that virtually no complaint of judicial misconduct survives in the federal system, Thomas Willging, a career bureaucrat ("judicial expert") at the Federal Judicial Center says the Judicial Conduct and Disability Act of 1980 is a "safeguard."
Yeah, right.
There's quite a lot of positive press / spin from the government on this, and we wonder if they're not conditioning us for their final report. - (2006) We're told the Final Report from the Judicial Conduct and Disability Act Study Commission is due in September this year. As in our booklet, keep your expectations low.