Rehnquist Panel Embarks on Judicial Conduct Review

A panel of judges met at the Supreme Court on Thursday to rethink the way the federal judiciary polices its life-tenured members, but without infringing on their traditional independence

In 1980, Congress gave anyone upset by a judge’s conduct the right to file a complaint, and potentially trigger disciplinary action.

This year, Rep. F. James Sensenbrenner, a conservative Wisconsin Republican who chairs the House Judiciary Committee, said that judges dealing with complaints were too protective of their colleagues, and he threatened to take action in Congress. Sensenbrenner said he was irked that his complaints about two liberal Democratic judges had been brushed aside.

That created a quandary: How can the judiciary respond to valid complaints of misconduct without encouraging critics to launch ideological or personal attacks against judges?

Chief Justice William H. Rehnquist, who heads the federal judicial system, appointed a committee of judges last month to look into the matter, and he named Justice Stephen G. Breyer to lead the group.

“There is a need to have genuine complaints taken seriously,” Breyer said in an interview Thursday. “Our job is to look into how that has been working.”

The committee has nothing to do with the Supreme Court and Justice Antonin Scalia’s duck-hunting trip with Vice President Dick Cheney. The trip took place in January while the vice president’s appeal to maintain the secrecy of his energy policy task force was pending before the court. The Sierra Club urged that Scalia withdraw from the case, but he refused, saying he did not believe his impartiality could “reasonably be questioned.”

“This is not about recusals, and it doesn’t have to do with the Supreme Court,” Breyer said. “The law doesn’t even apply to the Supreme Court.”

Justices on the high court are exempt from a code of judicial conduct. They are to rely on their judgment in deciding what behavior might appear impartial.

Anyone can file a complaint alleging that a federal judge is biased, unfit for the bench or engaged in misconduct. Under the current system, those complaints are referred to the chief judge of the regional circuit.

Many complaints are “frivolous” or challenge the outcome of a court ruling, said Breyer. Those are quickly dismissed, he said. Parties who lose a case may well be unhappy with the judge, but they can appeal, he said.

Other complaints that allege specific misconduct or bias may require an investigation, Breyer said. If the allegations are proven, judges may be publicly reprimanded or impeached by Congress and removed from office.

Breyer’s committee includes Judges J. Harvie Wilkinson III from the U.S. 4th Circuit Court of Appeals in Richmond, Va.; Pasco Bowman from the 8th Circuit Court in St. Louis; Sarah Evans Barker, a district judge from Indiana; D. Brock Hornby, a district judge from Maine; and Sally M. Rider, administrative assistant to Rehnquist.

As a first step, the committee decided to gather statistics on complaints and how they were handled. Breyer said the group then would take a closer look at a sample of the complaints. “We need to see how the system is working,” he said.

One of the judges Sensenbrenner filed a complaint about was Richard Cudahy, the lone Democratic appointee on the judicial panel that oversaw independent counsels, outside prosecutors appointed in special cases who were named under a law that has since lapsed.

The complaint was triggered by a 2000 news story that said the independent counsel had convened a grand jury to consider charges against President Clinton. Later, Cudahy said that he might have inadvertently leaked this fact in a phone conversation with an Associated Press reporter. Cudahy also apologized.

Sensenbrenner, one of the House Republicans who led the impeachment drive against Clinton, said the judge might have committed a crime by revealing the grand jury, and he demanded an investigation. After looking into the matter for a few days, then-7th Circuit Court Chief Judge Richard A. Posner in Chicago dismissed the complaint. Sensenbrenner called Posner’s action a “whitewash.”

Breyer said he expected his committee would take at least 18 months to decide what changes, if any, needed to be made to the complaint system.