February is shaping up to be a spectacularly bad month for the judging business. Last week saw Samuel Kent, a federal district judge in Texas, plead guilty to obstruction of justice charges in exchange for the state dropping numerous sex crime charges against him. Kent may go to prison for three years for groping his female subordinates, and there is talk in the Senate of his impeachment.
Then there's Sharon Keller, presiding judge of the Texas Court of Criminal Appeals, just charged by her state's Commission on Judicial Conduct with five counts of violating her duty and discrediting the court. Keller made national headlines two years back for ordering the courthouse closed as lawyers for a death-row inmate scrambled to file a last-minute appeal, based on developments that day at the U.S. Supreme Court. Their client, Michael Richard, was executed, despite the fact that the Supreme Court granted another prisoner a stay on the same grounds sought by Richard. Keller may face impeachment as well.
Or the New York family court judge, Dandrea Ruhlmann, who was publicly censured last week by the state's Commission on Judicial Conduct for making her secretary baby-sit her children and type up her husband's résumé. The judge says it was all just a big misunderstanding.
Who is watching over the judiciary? Why do we give our judges such extraordinary power over our lives and then leave them to police themselves, until and unless they break the law in hideous ways? This week the Supreme Court hears an important case about judging the judges. That they have to hear it in the first place is extraordinary: Brent Benjamin, chief justice of the West Virginia Supreme Court, refused to remove himself from a case despite the fact that one of the parties—the CEO of a coal mining company—had contributed $3 million of his own money to Benjamin's judicial election campaign. (Benjamin later cast the deciding vote in a 3-2 decision in favor of the coal company.) The high court must now address itself to questions of whether and when the out-of-control campaign spending by parties or lawyers in states that elect judges creates an "appearance of bias" on the bench. The rules about when judges are biased (or merely "appear" biased) are in dire need of clarification. The decision to recuse in this case was left to Judge Benjamin alone.
But—like a stack of those Russian nesting dolls—most of the same justices deciding the West Virginia case have themselves faced questions at some point of self-interest, bias, or the appearance of improper influence. Just last week, the Washington Post's editorial board groused about Chief Justice John Roberts' role in a case now pending at the high court, to which the pharmaceutical giant Wyeth is a party. Wyeth and Pfizer plan to merge, and it seems Roberts holds Pfizer stock. Will that affect his judgment in the case? Who can know? Each justice decides such recusal questions for himself without ever publicly announcing the rationale.
Except for Justice Antonin Scalia, who in 2004 penned a 21-page Dear John letter to the American people, explaining why he refused to remove himself from hearing a case in which Vice President Dick Cheney was a party, despite the fact that the two had just shared a most manly duck-hunting adventure. Enraged that he was being called out to publicly account for his decision to hunt waterfowl with a party to an appeal, Scalia shared numerous examples of great justices who palled around with great presidents and then concluded, "While the political branches can perhaps survive the constant baseless allegations of impropriety, this Court cannot. The people must have confidence in the integrity of the Justices, and that cannot exist in a system that assumes them to be corruptible by the slightest friendship or favor."
If justices ever answered such questions, one might well ask Scalia the follow-up: How can the people have confidence in the integrity of justices who answer to nobody?
But efforts to control the judiciary often run afoul of the ideal of judicial independence. Whenever the public attempts to tell judges or justices how to behave themselves, they run headlong into the argument that judges warrant special deference because what they do transcends politics and public opinion. Why should the justices care what we think of their stock portfolios? Isn't their job to be above caring what we think about anything?
That's why an attempt last week by a group of prominent academics and practitioners to manhandle the justices of the Supreme Court into line will likely prove futile. A group of 33 prominent legal thinkers sent a letter to Attorney General Eric Holder and ranking members of the Senate judiciary committee, proposing Supreme Court reforms that would bar justices from making their own calls about their retirement. (They would be demoted to "senior status" after 18-year terms, and the chief justice would serve as chief for only seven years.) Justices would lose the power to decide for themselves if they are too sick or ill to serve, as well as the authority to decide which cases the court would hear each term. Since the Constitution provides that the justices shall hold office "during good behavior," these attempts to cut short judicial careers and pump up judicial caseloads will likely go ignored, although it speaks volumes that America's great legal minds think the justices are old, infirm, and underemployed.
So while Americans of every stripe worry and bicker and advocate for greater control over the judiciary, whether it's in the family courts, state Supreme Courts, or at the highest court in the land, what the judges hear for the most part is the sound of crickets chirping. And perhaps this is right and proper. In the truly appalling cases, like Kent's sexual harassment charges, judges should be disciplined. But the larger problem is that jumbled in with America's legitimate grievances about their judges, there are also many vague and subjective gripes from litigants who just didn't get what they wanted. No litigant ever walks away happy from his case. That alone doesn't mean every judge is biased, self-interested, or on the take.
Judges are not gods. But before we criticize too much, we must be honest enough to admit that what looks like bias and corruption to us might just be a fallible human being doing her job at one end and a fallible litigant feeling ripped off at the other. If we create too many systems for micromanaging the judiciary, we are really saying that we trust their judgment only when they agree with us. We need to separate the real problems of policing judicial misconduct from the generalized grousing that if judges don't agree with us on everything it must be because they are old, elitist, corrupt, or out-of-touch. And in the end, to paraphrase Scalia, we must either trust in our judges to judge, or do away with this institution altogether.
A version of this article appears in this week's issue of Newsweek.