by Carl Bernofsky
"We all have a stake in the rule of law and we can all do our part to strengthen it," advises William Neukom, President, American Bar Association, in the opening pages of Law Day 2008, a catalog of ideas and paraphernalia designed by the ABA to help us celebrate Law Day on May 1st.
First proclaimed in 1958 by President Dwight D. Eisenhower, this year's Law Day marks the 50th anniversary of a "day of national dedication to the principle of government under law.
The public has been very vocal in its dissatisfaction with the way judges have dealt with complaints against their colleagues, and in 2004 - responding to similar concerns raised by Congress - the late Chief Justice William Rehnquist appointed a committee of judges, led by Justice Stephen Breyer, to gather data on how complaints against judges are handled and to offer recommendations.
The Breyer Committee Report, completed in September, 2006, concluded that very little needed to be changed in the way that federal judges police themselves, and in July, 2007 Breyer's Committee on Judicial Conduct and Disability released its "Draft Rules Governing Judicial Conduct and Disability Proceedings" for public comment. These draft rules, now adopted, have become the subject of heated controversy.
According to data compiled by Dr. Richard Cordero from figures published by the Administrative Office of the U.S. Courts, of the reported 7,462 judicial misconduct complaints filed during the 10-year period of 1997-2006, nearly 99.9 percent were dismissed with little or no explanation, regardless of merit. Confidentiality rules have prevented the public and members of Congress from inspecting these complaints.
The new Rules Governing Judicial Conduct and Disability Proceedings, adopted at the March 11, 2008 meeting of the Committee on Judicial Conduct and Disability, chaired by Judge Ralph K. Winter of the 2nd Circuit Court of Appeals in Brooklyn, New York, will now render meaningless any complaint alleging that important evidence was ignored or misrepresented, or that a judicial outcome was invalid because of bias or conflict of interest. Such allegations would automatically be considered "merits-related" and dismissed without further investigation.
The Center for Judicial Accountability, a New York based nonprofit organization that advocates for effective and meaningful judicial selection and discipline, attempted to dissuade the Judicial Conference from adopting rules that provide for such automatic dismissals, claiming that existing law does not require the automatic exclusion of "merits-related" complaints. CJA's recommendations, which were made directly to Chief Justice Roberts, had little effect, however, and the new rules are scheduled to take effect 30 days from March 11th.
Separation of Powers
There is an inherent conflict of interest when judges both police themselves and dictate the rules that govern how they can be disciplined, and this can lead to abuses of judicial discretion. Incidents of such abuse have spawned a nationwide, grass-roots movement calling for the creation of an alternative disciplinary mechanism, outside the federal judiciary, to review judicial misconduct.
Public disquietude over the performance of judicial self-discipline has attracted the attention of lawmakers whose revived concern in the subject has the potential to trigger a separation of powers conflict between the judicial and legislative branches of government, and lead to congressional hearings.