Federalist Society Panel Debates Discipline for Federal Judges

When a federal judge messes up and has to be disciplined, how much does the public deserve to know? That was the question put to a panel of experts this afternoon at the Federalist Society’s 2008 National Lawyers Convention.

Panelists professor Arthur Hellman of the University of Pittsburgh School of Law and professor Charles Geyh of the Indiana University School of Law—Bloomington agreed that the public has a right to know whether the federal judiciary is investigating any complaints against judges on the bench, especially if details of misconduct are already in the media. One example they cited was Chief Judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit, who the LA Times reported had maintained a Web site featuring sexually explicit photos and videos while in the midst of presiding over an obscenity trial in Los Angeles.

“When the subject of a pending complaint becomes known in the mainstream media, the presumption should be that the chief judge will make it public,” Hellman says. “The calculus changes in these high profile cases.”

The third panelist, Chief Judge Dennis Jacobs of the U.S. Court of Appeals for the 2nd Circuit disagreed. Jacobs says that as a matter of practice, as outlined by a report of a 2006 committee headed by Justice Stephen Breyer, the chief judge of a court takes complaints against judges, decides whether they have any merit, and either issues an informal reprimand or appoints a special committee to investigate the matter and lodge formal disciplinary action. For the most part, disciplinary actions that have to be taken are best kept in house, he says.

“There are only about 700 of these complaints filed every year, and about 650 are simply dismissed by chief judges because they have no merit,” Jacobs says.

Hellman and Geyh said that’s all well and good, but the public deserves to know what kinds of complaints are being filed against the judiciary.

They agreed that it is usually best to keep the judges' names out of public discussions about ongoing investigations, but details about complaints will keep the public from thinking that the one-off cases they read about in the papers are “just the tip of the iceberg.”

“The vast majority of these are frivolous and trivial, and they’re usually filed by crackpots or people wanting to re-litigate their cases on the merits,” Geyh says. “If anything they show that the judiciary is working well.”

Comments

[EARTHMAN]

I find the comments by Chief Judge Dennis Jacobs both typical and disengenuous. The judiciary has staked out immunities for itself that do not exist in law.

The law states that "All judges of the supreme and inferior courts shall serve their terms during good behaviour." Yet both state and federal judges claim immunity from accountablility for even the most egregious offenses.

A perfect example of this is the blatent fraud committed by U.S. Tax Court Judge Harold Dawson, in the Kantor case. Dawson committed crimes which would have landed a mere mortal in prison for many years, yet, there Dawson still sits as some sort of Emperor of the court.

The crimes of Dawson were not "frivolous."

Why have the lawyers and judges of this country remained silent, in effect saying judges are not to be called to account for their crimes.

Is it any wonder that the rest of us "mere mortals" have absolutely no confidence that the judiciary will in fact police itself when it has never done so?

Unless and until judges are called to account, and given punishments commensurate with the crime, large numbers of people will have no confidence in whatever comes out of these courts.