This past June, the U. S. Judicial Conference Committee on Judicial Conduct and Disability submitted for public comment up to October 15, 2007, rules for the conduct of primarily federal judicial discipline proceedings. When effective, the proposed rules are to “. . . provide mandatory and nationally uniform provisions governing the substantive and procedural aspects of misconduct and disability proceedings . . .” for federal judges. They marvelously bridle discretion among chief circuit judges, the first responders to private citizens, prisoners, lawyers, court personnel and others, complaining that one or more federal judges are unethical or unable to properly function due to some mental and/or physical condition.
The actual or acting chief judge of any federal circuit in America can dismiss complaints alleging the misconduct and/or disability of his or her judicial colleagues, subject to certain appeals. Fortunately the rules at hand preclude those dismissals when underlying complaints pit the complainant’s word against those of a targeted judge. That situation involves “a simple credibility conflict” and should proceed for special committee investigation.
“Where a judge’s conduct has resulted in identifiable, particularized harm to the complainant or another individual, appropriate corrective action should include steps taken by that judge to acknowledge and redress the harm, if possible, such as by an apology, recusal from a case, and a pledge to refrain from similar conduct in the future.” Should the subject rules become enacted, minor corrections would be an insufficient response to serious allegations. Also, viable complaints could not be dismissed under the new rules if an alleged offender still performs judicial duties.
The foregoing provisions would soon give Americans good grounds for renewed confidence in the self-regulation of federal judges were it not for a disturbing message undermining the process. Through the preemption of complaints “directly related to the merits of a decision or procedural ruling”, federal judges suggest they are unaccountable for deliberate violations of rights accomplished through judicial proceedings. In contrast, the U. S. Constitution limits state power, “. . . however put forth, whether that action be executive, legislative, or judicial.” Ex Parte State of Virginia, 100 U. S. 339 at 346 (1879).
In 2004, the late Chief Justice Rehnquist appointed a Judicial Conduct and Disability Act Study Committee to appease criticism about the act’s implementation and corresponding effectiveness or lack thereof. Comprised only of judges, court personnel, and similar participants, the committee essentially confirms with its “Breyer Report” that court opinions rarely justify claims of unlawful judicial bias. Yet the circumstances of a court ruling may rebut the presumption that as to a particular litigant or litigants, the presiding judge is a person “. . . of conscience and intellectual discipline, capable of judging a particular controversy fairly . . .” cf., U. S. v. Morgan, 313 U S 409 at 421 (1941). In fact a judge’s willfulness characterized by “open defiance or reckless disregard of a constitutional requirement” of record, may establish a criminal violation of rights under color of law. See, Title 18 U.S.C. §242 and cf. U.S. v. Hayes, 589 F.2d 811 at 821 (5th Cir. 1979). That willfulness would be inextricably related to, but exceed mere error.
America’s federal judicial conference now anticipates a wondrous paradox of incorrect court rulings that result from, but in no way evidence improper judicial motive. Its rules are likely to preclude consideration of such matters “. . . to the extent (they attack) the merits” of a judicial ruling; though those linked to alleged collusion somehow go “. . . beyond a challenge to the correctness – ‘the merits’ of the ruling itself”. Such a dividing line is as elusive as “ . . . evidence apart from the ruling itself suggesting an improper motive”. At best it creates an extremely tight rope that prospective complainants under the Judicial Conduct and Disability Act should not have to walk.
The U. S. Supreme Court “. . . makes clear that judges and other ‘state officials integral to the judicial process’ are subject to criminal liability for violating the constitutional rights of individuals.” Briscoe v. La Hue, 460 U. S. 325, footnote 26 (1983). That the U. S. Judicial Conference is empowered to skirt such matters for federal judges is troubling, downright scary to say the least.
Apparently the conference will never fathom a criminal violation of rights under color of law warranting impeachment. Of course the Breyer Report and U. S. Justice Department prosecution statistics combine to dubiously suggest that of late, judges are virtually incapable of such crimes.
As America emerged from the height of its civil rights movement, federal judges and Congress boldly restrained deliberate violations of rights by state judges among other state officials. The idea of federal judges needing more independence would be laughable were it not so offensive. But alas, it is an idea aggressively promoted this new millennium through the corridors of America’s highest judicial officers and beyond. Feel free to share that hair raising story this Halloween.
Crenshaw, McCray, and Fogg are administrators for The 3.5.7 Commission, a privately established commission considering the propriety of summary judgments entered against federal government employees under Title VII, the Civil Rights Act of 1964, and certain employees seeking relief under the False Claims Act. [ www.the357commission.org ] Ms. Crenshaw is also Executive Director of National Judicial Conduct and Disability Law Project, Inc., a nonprofit organization combating abuses of the legal system that are facilitated by judicial misconduct. [ www.njcdlp.org ] McCray is a $40,000,000 government whistleblower and business developer who considers judicial reform an essential element of government whistleblower protection. Fogg is a currently inactive Chief Deputy U. S. Marshal as well as international human rights advocate.