We members of the judicial watchdog pack typically celebrate any and all allocations of greater resources toward monitoring members of the bench. Cocooned in arcane protocols and legalistic mumbo-jumbo that connote a near-priesthood in the public mind, the federal judiciary would certainly benefit from greater transparency. Unfortunately, the latest judicial oversight proposal —of creating an inspector general for judges—is a constitutionally dubious overreaction that misses the chance for responsible reform.
On its face, the idea of an inspector general, now being considered by a House panel, seems uncontroversial. But pay attention to its very looseness. According to the draft legislation, this new post would be authorized to investigate allegations of judicial misconduct "that may require oversight or other action by Congress." It also would be empowered to audit judicial budgets to "detect waste, fraud and abuse"—doubtless to be measured by the same strict constructionists who would want no adjustment for inflation since colonial times. And lastly (go ahead and drive your truck through this hole), the office is charged with "recommend[ing] changes in laws or regulations governing the Judicial Branch."
What is the problem that demands this rather sweeping solution? According to the bill's sponsor, Rep. James Sensenbrenner of Wisconsin, a plague of gallivanting jurists threatens the commonweal. And he does have some evidence. A recent study by the Community Rights Counsel, a nonprofit public-interest law firm, found that during the past 15 years federal judges took more than 1,000 junkets, often funded by corporations or organizations with vested interests in litigation before the courts. That data compounds reports of jurists failing to recuse themselves from cases in which they or family members own stock in one of the parties.
According to a Washington Post report on the counsel's study, federal judges on at least six occasions between 2002 and 2004 failed to fulfill federal requirements that they disclose their receipt of junket packages from the Montana-based Foundation for Research on Economics and the Environment. The libertarian organization did hold substantive seminars, but a fair amount of fishing, hiking, and horseback riding (no, we're not talking about training for equestrian tours of judicial circuits) also took place.
A putative ally of such laissez-faire activists, Sensenbrenner can at least be given some credit for biting the invisible hand that feeds his fellow travelers. "Such behavior," he said in introducing his bill in April, "undermines the public's perception of our judicial system and the fairness and respect that are needed to instill confidence in our judiciary."
But the representative offered no legislation to rein in his own colleagues—whose incessant and compromising junketeering makes the black-robe set look positively agoraphobic. A study by the Center for Public Integrity this spring revealed that lawmakers had taken 23,000 junkets worth nearly $50 million during just a five-year span. Compared to 1,000 judicial junkets in 15 years, that's fairly stunning. As for the representative himself, the center said that his 20 junkets, totalling $169,812 in sponsored trips, ranked him No. 2 by cost among congressional travelers. Hypocrisy, to paraphrase Matthew Arnold, is the tribute politicians pay to voters. But the big problem with the Sensenbrenner bill is not its selectivity of enforcement. It's how cavalierly the measure risks unbalancing the separation of powers.
The Framers gave federal judges lifetime tenure precisely because, as Alexander Hamilton wrote in the Federalist No. 78, "the judiciary is beyond comparison the weakest of the three departments of power." Congress already has complete authority to fund the bench, impeach jurists for malfeasance, and create the rules for recusal. Does it really need to hire a judge cop?
Sensenbrenner sought to pre-empt such criticisms when he introduced his measure: "The inspector general will not have any authority or jurisdiction over the substance of a judge's opinions," he reassured us. "Judicial independence of opinions is a sacred foundation of our constitutional form of government."
This assurance would be more convincing if Sensenbrenner's own spokesman last year hadn't told the New York Times, "There does seem to be this misunderstanding out there that our system was created with a completely independent judiciary." It would also be less disturbing if it weren't following a raft of congressional attempts to strip the courts of jurisdiction over cases ranging from Terri Schiavo's life support to the Pledge of Allegiance and school prayer. Congressional claims that they are more interested in judicial vacations than opinions also ring somewhat hollow in light of legislative proposals to impeach jurists who dare to cite foreign law in their decisions.
Given that context, the clear and present danger here is the reform, not its target. Nothing can guarantee that these audits wouldn't become proxies for probes of those with whom some faction or other has jurisprudential disagreements. As both conservative and liberal Dr. Frankensteins have learned to their chagrin in recent years, special investigative bodies have an annoying tendency to mutate once they are released from the laboratory.
Worse, a real and deep defect in monitoring judicial misconduct remains unaddressed by the Sensenbrenner plan. A few years back, veteran Los Angeles federal judge Manuel Real seized control from another judge in a bankruptcy involving a woman whose probation Real was also overseeing. Her creditors filed a complaint against Real. But the chief judge of the U.S. Court of Appeals for the 9th Circuit failed to open formal proceedings with the appointment of a panel of judges to investigate the complaint. Because of that oversight, a bitterly divided committee of judges reviewing the discipline case concluded last April that they had no authority to review the chief judge's dismissal of the matter.
That is precisely the kind of loophole we hope will be addressed by Supreme Court Justice Stephen Breyer—who was commissioned by the late Chief Justice William Rehnquist in 2004 to review the Judicial Conduct and Disability Act of 1980. Congress doesn't even have to wait for that body's report, however, to demand that judicial discipline cases be judged on their merits, not technicalities. As for the Sensenbrenner bill, Democratic Sen. Patrick Leahy of Vermont has proposed a measure more finely tuned than the inspector general idea that would ban privately funded judge junkets (Congress, anyone?) and make financial disclosure for judges more transparent. Anything beyond that is both excessive and dangerous.
Lifetime tenure does risk the possibility of some malfeasant judges avoiding accountability. But it's also vital to judicial independence—which should be vital to all of us. That's why the alleged opposition of those precepts is a false dichotomy. Under well-calibrated checks and balances, such imperatives are mutually reinforcing. Giving Congress more excuses for intrusion into the judicial branch upsets that calibration.
"Liberty," wrote Hamilton, "can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments." Just as some conservatives last year wisely renounced the so-called nuclear option—after recalling that their previous minority status had once made the Senate filibuster their friend—Congress today should dodge the swinging nightstick of a judicial policeman.