2006 NEWS & COMMENTARIES

2007 Judicial Accountability News & Views

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2006 News & Commentaries

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December 2006

FEDERAL COURTS

Beach Boys Booted Out of Court

12-27-06 -- Wouldn't it be nice if you could wake up ... and find out that a crazy judge didn't pull the rug out from under you? . . . The Beach Boys just learned a hard lesson about the American justice system. TMZ has learned that on December 11, Danny Morin, the lawyer from Brother Records Inc. (The Beach Boys' company), showed up 13 minutes late for a court hearing in Los Angeles Federal Court. Judge Manuel Real, legendary for his explosive tirades, sent some seriously bad vibrations through the courtoom by dismissing The Beach Boys' case. . . . Brother Records Inc. filed the lawsuit last January, seeking $20 million in damages from two men who allegedly stole a treasure trove of band memorabilia from a North Hollywood warehouse. The band claimed that Allan Gaba, owner of the warehouse, and his friend Roy Sciacca, pilfered such items as Brian Wilson and Mike Love's contract for the song, "Do It Again," photos of the band with George Harrison, and original music compositions. . . . The hearing on December 11 was a final pre-trial conference, the last stage before trial. Even though Attorney Morin's office made several calls to the clerk advising that the mouthpiece would be a bit late, it didn't sit well with Judge Real. We're told The Beach Boys are none too pleased, and Morin is asking the judge to reconsider. Don't count on it. / The Lawsuit

CALIFORNIA  

Appeals Court Slaps Trial Judge for Calling It ‘Kangaroo Court’

By Steven Cischke, Staff Writer

12-27-06 -- The Third District Court of Appeal yesterday sent a criminal case back to the San Joaquin Superior Court for resentencing, and in the process chastised the trial judge for referring to the appeals panel as a “kangaroo court.” . . . The Court of Appeal found that the remark by retired San Joaquin Superior Court Judge K. Peter Saiers, who continues to hear cases occasionally, was “pejorative” and violated the Canons of Judicial Ethics, which require all judges to uphold the integrity of the judiciary. . . . The defendant, Donald L. Zackery, was originally charged with assault with a deadly weapon—an automobile—on a peace officer, evading an officer with damage to property, and drunk or drugged driving, with two “strike” priors. His attorney negotiated an arrangement in which he would plead no contest to the assault and to evading a pursuing officer, one of the two strikes would be dismissed, and he would be sentenced as a second-strike offender to six years in prison. . . . During a change of plea hearing, Saiers asked the prosecutor: . . . “You’re going to dismiss Count Two”—the original evading-with-damage-to-property charge—“aren’t you?” . . . When the prosecutor responded, “No, it’s a strike case,” Saiers replied: “Oh, that’s right. You can’t offend the kangaroos up there in kangaroo court,” the record showed.

Justice Richard Sims III, writing for the Third District, said: “We will give Judge Saiers the benefit of the doubt and assume he was referring to this court, not the Supreme Court.”. . . But then Sims wrote: “Reading a little between the lines, it appears that Judge Saiers’s ‘kangaroo court’ remark was provoked by his frustration at not being able to dispose of a pending case in a way he thought sensible. It would appear that, in his eyes, this court was a naive, ivory-tower, obstructionist, oblivious to the realworld problems of trial courts faced with staggering caseloads. . . . “This view is not accurate.”

Oath Cited . . . Sims explained: “As former trial judges, we have all experienced the stressful crush of pending cases. We are also aware of the desperate plight of the San Joaquin County Superior Court, which, until recently, had not been allocated a new judicial position in two decades, despite significant population increases and rising caseloads.”. . . The justice continued: “But trial judges must understand this overarching fact about the Court of Appeal: despite our awareness of and sympathy for your plight, we have no warrant to disregard the law. Rather, we have all taken an oath to enforce it.” . . . Sims concluded: “And so, if a trial judge violates the law, even in the name of short-term efficiency, matters are simply made worse. Things have to be done again. More lawyers must be hired, more judges involved, more transportation of prisoners, etc. All at taxpayer expense. It is more expensive to do things twice than to do them once correctly. The truth of the matter is that Judge K. Peter Saiers has wasted taxpayers’ dollars.”

KANGAROO COURTS

By: Howard Bashman

Imagine that -- appellate judges don't take kindly to trial judge's characterization of appellate court as "kangaroo court": Coming hard on the heels of my posting this morning of the petition for writ of certiorari in Fieger v. Michigan Grievance Administrator -- a case asking whether an attorney has a First Amendment right to publicly express non-defamatory personal criticism of a judge -- is this gem of an opinion from California's Court of Appeal for the Third Appellate District.

According to that decision issued today, the trial judge on the record stated to counsel in open court, "You can't offend the kangaroos up there in kangaroo court." Although the Court of Appeal could have brushed off the insult by declaring that the trial judge must have been referring to the Supreme Court of California, instead the appellate judges decided that the trial judge must have been referring to their intermediate appellate court. . . . Additional coverage of the ruling can be found online at "California Appellate Report" and "PrawfsBlawg."

KENTUCKY  

Area Lawyer Files Second Suit Against Judge

Reporter: Ryan Dearbone

"She's jailing them, which I believe she feels is politically popular in the county. Its not her job to be immigration; its immigration's job," said Alan Simpson, Miguel Abraham's attorney.

12-27-06 -- Simpson and Abraham say they want Judge Sue Carol Browning off the bench for Abraham's proceedings because they feel she is prejudice to Hispanics in the community. . . . Abraham is facing 3rd degree criminal tresspass charges for which he was ordered to serve 30 days in jail as well as driving without a license. . . . In September, Browning ordered 16 Hispanic males to jail on minor charges until INS and Homeland Security could determine what to do with them. . . . This act was deemed unconstitutional by Circuit Judge Tyler Gill. . . . "Recently, Judge Browning has acknowledged at least a willingness to accept a plea in Abraham's case to a minor violation that would not require jail time but Mr. Abraham has rejected that at this point in hopes that Judge Browning would recuse herself," Simpson said. . . . The lawsuit also contains affidavits from Elkton pastor Frank Ruff and court observer Paul Witte, that allege Browning said that "for every one of you, there's hundred of us," making reference to those who work on behalf of the Hispanic immigrants. . . . Judge Browning told WBKO that she doesn't recall saying anything like that. . . . She said that she is in no way prejudice and simply jails the immigrants because they are without a valid ID to prove who they are. . . . She also said she's not sure why Simpson and Abraham want her off the case so badly.

To view the lawsuit filed against Browning click here.

FEDERAL COURTS

The Courts Need This Watchdog

By Ronald D. Rotunda

The Judicial Transparency and Ethics Enhancement Act of 2006, now before Congress, would create an inspector general for the courts. It offers modest reforms that would keep our judiciary independent (because no one favors a dependent judiciary) and help keep it accountable (because no one favors a judiciary that is above the law). . . . Nonetheless, there are those who greet it the way Dracula would greet a bouquet of garlic. Justice Ruth Bader Ginsburg, for example, has said of the proposal: "That's a really scary idea." . . . On the contrary, this bill would strengthen judicial independence because it would give people greater faith that if there were problems, the inspector general for the courts would deal with them and not sweep them under the rug. An inspector general would also protect judges from frivolous or false charges. . . . There are already 57 inspectors general for other organs of government -- for the Justice Department, Iraq reconstruction and so forth. The House of Representatives has imposed an inspector general on itself. Indeed, one wonders why it has taken so long to create one for the courts.

Bench Opposition To Judiciary Watchdog

If the senior judges that govern the nation’s federal court system have their way, Congress will reject a law that would create transparency and enhance ethics in the country’s judicial system. . . . The proposed bill, Judicial Transparency and Ethics Enhancement Act of 2006, offers to create an inspector general for the courts that would investigate fraud, waste and abuse as well as audit federal judicial expenditures and recommend changes in laws or regulations governing the judicial branch. . . . Already 57 U.S. Government agencies have inspector generals that annually expose a plethora of public corruption. Why not the court system, with its long and documented history of judicial misconduct? Some veteran judges, including Supreme Court Justice Ruth Bader Ginsburg, say a watchdog for the federal courts is a “really scary idea” that reminds her of the old Soviet Union.

CONNECTICUT  

Boring? The Public Will Judge

Electric light is the most efficient policeman, the late U.S. Supreme Court Justice Louis Brandeis said. Connecticut's judges have wisely decided to install new bulbs in their chambers. . . . They voted this past week to open meetings of the state Superior Court Rules Committee to the public. . . . State Chief Court Administrator William J. Lavery said that the public will now see how the judiciary makes its rules and "how boring it can be." . . . True, when doors and documents are sealed shut, their contents become much more interesting. But the past few years have been anything but boring for court-watchers. . . . In March, the chief justice secretly held up publication of a controversial state Supreme Court ruling so that his would-be successor wouldn't be questioned on it by the legislature. His secrecy, soon exposed, just increased suspicions of those who remembered the not-so-long-ago days when the files of the rich and famous were sealed so tightly that there was no public trace of them.

MICHIGAN  

Oyez, oyez: God help this dysfunctional court!

By Brian Dickerson, Free Press Columnist

Michigan's highest court became a scene of high drama and low comedy Thursday when a feud between two groups of state Supreme Court justices erupted in a furious exchange of orders, dissents, insults and accusations. . . . Luckily, the impending holiday break gives those in charge of overseeing our state's dysfunctional judiciary the chance to catch their breath and consider a couple of important procedural questions: / 1) Is it a violation of judicial ethics for members of the state's highest court to carry on like spoiled 3-year-olds? / 2) If so, who has the legal authority to send the offending justices to bed without their dinner? . . . Justice Elizabeth Weaver has been at odds with her four Republican colleagues on the court since she was deposed as chief justice in 2001. The feud escalated last week when the GOP majority, acting over the objections of Weaver and both Democratic justices, issued an emergency order barring any justice from disclosing any "correspondence, memoranda and discussions" concerning cases before the court, even after they're decided. . . .Thursday, in a blistering dissent made public only after the GOP majority decided to rescind an earlier order blocking its publication, Weaver ridiculed the majority's action as an unconstitutional "gag order" designed to conceal unethical behavior by her fellow justices. . . . Weaver said the court's tradition of internal confidentiality shouldn't extend to "personal slurs, name-calling, and abuses of power, such as threats to exclude a justice from conference discussions, to ban a justice from the Hall of Justice, or to hold a dissenting justice in contempt."

Weaver fights high court ‘gag order’

George Weeks

In October, I wrote that the long-simmering feud between Michigan Supreme Court Justice Betty Weaver and the four other Republicans on the seven-member bench “is beginning to erupt.”. . . Last week, it burst forth with unprecedented fury when Weaver denounced the court’s 4-3 order to impose what she called a “gag order” advancing “a policy toward greater secrecy and less accountability. I strongly believe that it is past time to end this trend and let sunlight into the Michigan Supreme Court.”. . . The majority, according to an Associated Press account on another ruling Thursday involving flamboyant attorney Geoffrey Fieger, said Weaver’s criticism was “rooted in personal resentment.” In 2001, the majority declined to give her a second term as chief justice. . . . The initial dispute was based on a Dec. 6 order approved by Chief Justice Cliff Taylor and justices Maura Corrigan, Stephen Markman and Robert Young prohibiting justices from disclosing any “correspondence, memoranda and discussions” on cases before the court, even after they are resolved. . . . After Weaver’s 14-page dissent on that order was released Thursday, the court issued its denial of Fieger’s request to postpone disciplinary action against him for vulgar remarks about some judges while he appeals to the U.S. Supreme Court. . . . Weaver contends that the four justices should disqualify themselves on action against Fieger. The former judge of the Leelanau County Probate Court and the Michigan Court of Appeals argues that she should be able to publicly say why. . . . On Jan. 17, the court plans a public hearing on its order “preserving the integrity and confidentiality of the Court’s deliberative process and to reflect practices that have characterized the Michigan Supreme Court, and to the best of our knowledge every other appellate court within the United States, including the United States Supreme Court, since their inception.”

NEVADA  

Retiring justice laments influence of money
But he's hopeful times are changing

By Ed Vogel, Review-Journal Capital Bureau

Too many Nevadans hold the view that justice is for sale and only the rich can afford good lawyers, retiring Supreme Court Chief Justice Bob Rose says. . . . And that troubles him. . . . In leaving the state Supreme Court after 18 years, Rose laments that judicial candidates must go out and hustle campaign contributions from lawyers and others who eventually may try cases before them. . . . "I don't think money changes a judge's decision, but it gives a very bad perception to the average person," Rose said. "You have a lawyer who gave a judge $10,000, and you have a lawyer who gave nothing. Which lawyer do you want to make arguments for you? Does money talk? I don't believe so, but it does create the perception of impropriety to many people." . . . Twelve years ago, a task force chaired by Rose recommended voters approve the "Nevada plan," a process under which a merit selection committee would pick judges from a group of applicants. The judge they selected then would serve for two years. . . . After that time, the judge would run for re-election against all competitors. If the judge won that election, then in future elections he or she would run in a yes-or-no retention election. . . . Although the Nevada plan has gone nowhere, Rose, 67, is optimistic that times are changing and voters in the next few years will amend the state constitution and approve the process.

WASHINGTON   

Judicial Elections: Free the judges

Seattle Post-Intelligencer Editorial Board

One of the most intriguing items in Gov. Chris Gregoire's proposed budget is $4.4 million to publicly finance judicial elections. . . . "Judges should be impartial. In order to protect judicial independence," the governor recommends funding this as a pilot project, "so that the election of judges can be free from money influence -- real or perceived. By protecting judicial independence, we protect the public trust in the justice system." . . . We think it makes a lot of sense for judges to get out of the fundraising business. Unlike other political offices, judges can't tell voters what they will do when elected. A 2002 study by the American Bar Association found that judges are "uncomfortable soliciting contributions, which may discourage outstanding judicial candidates from seeking or remaining in judicial office." . . . And the more judges campaign, the more the public perceive them as political creatures instead of an independent judiciary, the ABA said.

November 2006

Federal Judicial Supremacy on the Ballot

Jaynie Randall  , Yale Law Journal

Full-text PDF

11-06-06 -- The 2006 campaign season has witnessed an onslaught of challenges to one of our nation’s longest serving incumbents: federal judicial supremacy. On Tuesday, voters across the country will decide the future of this notion—that the decisions of the United States Supreme Court bind the decisions of state courts—in the form of ballot initiatives proposing term limits, recall measures, and citizen suits against judges who make unpopular decisions. The issue has garnered attention from commentators as diverse as retired Justice Sandra Day O’Connor and Phyllis Schlafly. . . . The stakes of the debate are best illuminated by a dispute in Alabama earlier this year. Justice Tom Parker of the Alabama Supreme Court in essence kicked off the campaign against judicial supremacy when he publicly lambasted his colleagues for their decision to block the execution of Renaldo Adams. Parker, who did not participate in the case, decried the Adams decision as a rampant display of judicial activism. What made his denunciation remarkable was that the Alabama court followed the precedent of the United States Supreme Court in Roper v. Simmons, which declared the execution of minors unconstitutional. Adams was seventeen years old when he received a death sentence: Roper clearly governed his case. . . . The unanimous two-page opinion which provoked Parker’s furor did not marshal the usual accusations hurled at “judicial activists.” He did not accuse the court of invoking the so-called “living Constitution,” that bends to fit the times, nor did he accuse them of judging based on personal sympathies. To the contrary, he argued that the Alabama Supreme Court was not bound by the United States Supreme Court’s decision in Roper. Such a broad rejection of the Supreme Court’s authority threatened a battle over the role of federal courts and judicial supremacy. Many of Parker’s colleagues on the Alabama Supreme Court probably agreed that Roper was wrongly decided—likely for its reliance on foreign law. What divided Parker from his equally conservative colleagues on the Alabama court is that they did not believe they could ignore Roper. Parker saw this dispute as a difference in “judicial philosophy” and embraced methods of resistance—violating federal court orders, and refusing to apply controlling Supreme Court precedent. His colleagues did not.

October 2006

Congress to courts: Get out of the war on terror.
Sending a Message
By John Yoo

During the bitter controversy over the military commission bill, which President Bush signed into law on Tuesday, most of the press and the professional punditry missed the big story. In the struggle for power between the three branches of government, it is not the presidency that "won." Instead, it is the judiciary that lost. . . . The new law is, above all, a stinging rebuke to the Supreme Court. It strips the courts of jurisdiction to hear any habeas corpus claim filed by any alien enemy combatant anywhere in the world. It was passed in response to the effort by a five-justice majority in Hamdan v. Rumsfeld to take control over terrorism policy. That majority extended judicial review to Guantanamo Bay, threw the Bush military commissions into doubt, and tried to extend the protections of Common Article 3 of the Geneva Conventions to al Qaeda and Taliban detainees, overturning the traditional understanding that Geneva does not cover terrorists, who are not signatories nor "combatants" in an internal civil war under Article 3. . . . Hamdan was an unprecedented attempt by the court to rewrite the law of war and intrude into war policy. The court must have thought its stunning power grab would go unchallenged. After all, it has gotten away with many broad assertions of judicial authority before. This has been because Congress is unwilling to take a clear position on controversial issues (like abortion, religion or race) and instead passes ambiguous laws which breed litigation and leave the power to decide to the federal courts. . . . Until the Supreme Court began trying to make war policy, the writ of habeas corpus had never been understood to benefit enemy prisoners in war. The U.S. held millions of POWs during World War II, with none permitted to use our civilian courts (except for a few cases of U.S. citizens captured fighting for the Axis). Even after hostilities ended, the justices turned away lawsuits by enemy prisoners seeking to challenge their detention. In Johnson v. Eisentrager, the court held that it would not hear habeas claims brought by alien enemy prisoners held outside the U.S., and refused to interpret the Geneva Conventions to give new rights in civilian court against the government. In the case of Gen. Tomoyuki Yamashita, the court refrained from reviewing the operations of military commissions. . . . In Hamdan, the court moved to sweep aside decades of law and practice so as to forge a grand new role for the courts to open their doors to enemy war prisoners. Led by John Paul Stevens and abetted by Anthony Kennedy, the majority ignored or creatively misread the court's World War II precedents. The approach catered to the legal academy, whose tastes run to swashbuckling assertions of judicial supremacy and radical innovations, rather than hewing to wise but boring precedents.

Critics Target Federal Circuit

Reversals cast patent court in harsh light

Marcia Coyle, The National Law Journal

In the often highly technical, cutting-edge world of inventions, the U.S. Court of Appeals for the Federal Circuit is the Mount Olympus of patent law. But are its 12 Olympians falling? . . . The U.S. Supreme Court is reviewing more of the circuit court's patent decisions and liking them less, which is a much-noted trend in the relatively small patent bar. . . . Some patent litigators are increasingly critical of a Federal Circuit that, in its desire to achieve certainty and harmony in patent law, they say, has become overly formalistic, expanding the power of patent holders at the expense of innovation. . . . And some scholars suggest that after 25 years as the only game in town for review of patent appeals, the Federal Circuit might benefit, both in terms of its overall workload and the development of patent law, from some outside input, not just from the Supreme Court but from a limited number of regional circuit courts getting back into the business of handling patent appeals. . . . Do the Supreme Court's heightened interest and increased reversals mean that the Federal Circuit has run amok?

Who Is Judging the Judge?
By Thomas D. Williams, t r u t h o u t | Report

Federal judges, like Congressmen, federal agency heads and even US presidents, sometimes take actions believed by other government officials, the public and the press to be outrageous, unethical or even criminal. . . . The difference for alleged victims and others complaining about federal jurists' behavior, as opposed to other officials' behavior, is striking. Congressmen, agency heads and presidents are not appointed to their jobs for life. Federal judges are. And justices of the US Supreme Court are not even bound by the ethics code that other federal judges are. Usually, any federal jurist can be removed only by the incredibly complex and difficult Congressional impeachment process. . . . Close scrutiny of the federal judicial disciplinary system nationwide reveals that in about 99 percent of all misconduct complaints in the past six years, judges received no punishment at all. Nationwide, state judges do get regularly removed from the bench, suspended and otherwise punished. In that same past six years, 74 judges have been removed and 563 have been publicly, not privately, sanctioned for misconduct, according to federal court statistics. . . . Short of being removed, judges, excluding justices, can be punished through a complainant's allegations to the chief circuit court of appeals judge through the court clerk's offices in the appropriate circuit court area. The judge can either dismiss the complaint, conclude proceedings after corrective action is ordered, or appoint a special committee to investigate. Any findings are submitted to the judicial council of judges for a ruling, which can be appealed to the judicial conference and finally the court. . . . In Connecticut a year ago, seven state prosecutors and a couple of legislators made two simultaneous and unprecedented complaints. They brought charges respectively to the chief judge of the Second US Circuit Court of Appeals and the US House of Representatives' Judiciary Committee. Their allegations targeted a federal judge who delayed the execution of Michael Ross, a convicted rapist and murderer of eight New York and Connecticut women, when the jurist had previously and tangentially participated in Ross's defense during his days as a lawyer. . . . During the lengthy case, at the eleventh hour, US District Court Judge Robert N. Chatigny excoriated Glastonbury defense lawyer T.R. Paulding for failing to check once again on convict Michael Ross's mental condition, specifically related to Ross's years of solitary confinement on death row. Chatigny told Paulding that if Ross's mental condition had become impaired, "I'll have your law license," according to court records. As a result, Paulding called for still another competency hearing in state court and Ross was deemed sane.

The purpose of this website is to help the public become better informed about the judges who may be presiding over their case. This site puts a mirror to those public servants who make-up our courts. Judges can also become better informed about how others (particularly, lawyers) view them. Robeprobe serves as a report card that lawyers and litigants can use to grade the best performing judges and the worst performing judges.

Scalia Says Courts Shouldn't Take On Politically Charged Questions

Hope Yen, The Associated Press 

Justice Antonin Scalia on Sunday defended some of his Supreme Court opinions, arguing that nothing in the Constitution supports abortion rights and the use of race in school admissions. . . . Scalia, a leading conservative voice on the high court, sparred in a one-hour televised debate with American Civil Liberties Union president Nadine Strossen. He said unelected judges have no place deciding politically charged questions when the Constitution is silent on those issues. . . . Arguing that liberal judges in the past improperly established new political rights such as abortion, Scalia warned, "Someday, you're going to get a very conservative Supreme Court and regret that approach." . . . "On controversial issues on stuff like homosexual rights, abortion, we debate with each other and persuade each other and vote on it either through representatives or a constitutional amendment," the Reagan appointee said. . . . "Whether it's good or bad is not my job. My job is simply to say if those things you find desirable are contained in the Constitution," he said. . . . Strossen countered that such a legal approach would have barred the landmark 1954 ruling in Brown v. Board of Education, a unanimous decision outlawing racial segregation in public schools.

Scalia: Constitution Doesn't Support Abortion

NewsMax Staff

Justice Antonin Scalia on Sunday defended some of his Supreme Court opinions, arguing that nothing in the Constitution supports abortion rights and the use of race in school admissions. . . . Scalia, a leading conservative voice on the high court, sparred in a one-hour televised debate with American Civil Liberties Union president Nadine Strossen. He said unelected judges have no place deciding politically charged questions when the Constitution is silent on those issues. . . . Arguing that liberal judges in the past improperly established new political rights such as abortion, Scalia warned, "Someday, you're going to get a very conservative Supreme Court and regret that approach." . . . "On controversial issues on stuff like homosexual rights, abortion, we debate with each other and persuade each other and vote on it either through representatives or a constitutional amendment," the Reagan appointee said. . . . "Whether it's good or bad is not my job. My job is simply to say if those things you find desirable are contained in the Constitution," he said.

Accountability Should Not End at the
Federal Courthouse Steps
By James C. Turner and Suzanne M. Blonder, HALT

At long last our federal courts are strengthening systems that protect the public and hold judges accountable. State governments need to wake up and implement similar reforms that will bring much-needed sunshine and accountability to their courts. . . . Last week, U.S. Chief Justice John Roberts announced dramatic changes that tighten conflict of interest rules and promise to end secret lobbying of federal judges at posh resorts. The new rules require judges to use computer software to identify cases where they should disqualify themselves and mandate prompt reports about privately sponsored trips that will be made publicly available on the Internet. Americans can now be sure that the federal judge hearing their case is truly impartial. . . . On the same day, a blue-ribbon committee led by Associate Supreme Court Justice Stephen Breyer highlighted serious problems in the U.S. judicial accountability system including an “error rate” of nearly 30 percent in high-profile cases, closed-door procedures, lax time standards and out-dated Internet sites. In response, the committee endorsed review of complaints by outside judges to avoid “home court” bias, improved training, increased public disclosure and improved public Internet resources.

For HALT's Op-ed commenting on these changes, click here.

September 2006

FEDERAL COURTS

New Rules Mean Shift Toward Accountability for Judiciary

Chief justice holds rare press conference to applaud both of Tuesday's actions

Tony Mauro, Legal Times

9-20-06 -- Responding to complaints about judicial junkets and conflicts of interest, the Judicial Conference on Tuesday enacted new rules to force judges to use conflict-checking software and to promptly disclose their participation in privately sponsored seminars for which they are reimbursed. . . . Separately, a committee headed by Supreme Court Justice Stephen Breyer issued a report recommending modest changes in how federal courts handle ethical complaints that members of the public file against judges. Among the recommendations is what Breyer described as a "Dutch uncle approach," whereby judges would seek advice on handling certain complaints from judges of another circuit to avoid "home court" bias.  . . . Together, Tuesday's actions represent a major shift toward accountability -- or at least transparency -- from segments of a branch of government that has often resisted both. . . . Judges also hoped to defuse pressure from Congress, primarily in the person of House Judiciary Committee Chairman James Sensenbrenner, R-Wis., who has proposed creating an inspector general's office to oversee the judiciary's handling of ethical complaints. The late Chief Justice William Rehnquist appointed the Breyer Committee in 2004, mainly in response to congressional complaints. . . . "Issuance of the two policies and the Breyer Committee report are responsive to these concerns," says University of Richmond law professor Carl Tobias. "If the judiciary does not police itself, Congress may well attempt to do so in ways that judges may find troubling." . . . Tuesday's focus on judicial ethics comes on the eve of the Sept. 21 hearings by the House Judiciary Committee that could lead to the impeachment of California federal trial Judge Manuel Real, which would be the first judicial impeachment since 1989.

Sensenbrenner Statement on
Judicial Conference's Report on Implementation of the Judicial Conduct and Disability Act of 1980

Contact: Jeff Lungren or Terry Shawn, 202-225-2492;

9-20-06 -- House Judiciary Committee Chairman F. James Sensenbrenner, Jr. (R-Wis.) released the following statement today: . . . "I commend the Judicial Conduct and Disability Act Study Committee, headed by Justice Stephen Breyer, for its dedicated work investigating the enforcement of the Judicial Conduct and Discipline Act of 1980, which established a process where federal judges largely self-police their own behavior. The late Chief Justice William Rehnquist also should be commended for taking this issue seriously and establishing this committee in response to my concerns about a number of incidents where the judicial discipline construct had broken down in recent years. . . . "I have not yet had an opportunity to fully review the committee's report having just received it this afternoon. Nonetheless, I am encouraged the committee acknowledges there have been problems with the enforcement of the judicial discipline construct in recent years, particularly in high- profile cases. As the committee states, 'Because the matters at issue have received publicity, the public is particularly likely to form a view of the judiciary's handling of all cases upon the basis of these few. And the mishandling of these cases may discourage those with legitimate complaints from using the Act. We consider the mishandling of five such cases out of 17 - an error rate of close to 30 percent - far too high.' . . . "Today's report finds the Judicial Branch bungled all of the matters in which the House Judiciary Committee conducted extensive oversight. Today's report finds the dismissal of the complaint filed by Rep. Howard Coble and I regarding Judge Cudahy was handled incorrectly. Today's report also finds a complaint filed about procedural shenanigans in the Sixth Circuit Court of Appeals involving the University of Michigan's affirmative action admissions program was handled incorrectly. Likewise, the Judicial Branch's investigation into Judge Real's actions was also handled 'inconsistent with our standards.' Finally, today's report finds the issue related to the truthfulness of Judge Rosenbaum's testimony before the Judiciary Committee was handled improperly. . . . "On a more positive note, the Judicial Conference has adopted two new policies to reduce the likelihood of ethical misconduct issues arising in the future. I look forward to working with the Judicial Branch to curtail mishandling of complaints about judicial misconduct to ensure judges exhibit the highest standards of integrity and conduct."

FEDERAL COURTS

Judge Real Is Set to Testify in Washington
Federal Jurist, 81, Faces GOP Calls for Impeachment

By Lawrence Hurley and Drew Combs, Daily Journal Staff Writers

9-19-06 -- Los Angeles-based federal judge Manuel L. Real has decided to testify at a congressional hearing in Washington this week in response to Republican-led efforts to impeach him. . . . The 81-year-old jurist will defend his actions in a case seven years ago in which he allegedly helped a woman in bankruptcy proceedings after overseeing her probation in an unrelated case. . . . Delving Into the Merits / A House Judiciary subcommittee, chaired by Rep. Lamar Smith, R-Texas, is leading the investigation into whether Real should be impeached for assisting Deborah Canter when she faced eviction from her house following her divorce. . . . Smith's spokeswoman, Beth Frigola, confirmed members of the committee will delve into the merits of the case against Real at Thursday's hearing. . . . "Our goal at the hearing is two-fold: determine with accuracy what actually occurred when Judge Real presided over the Canter case in 2000 and 2001; and learn more about existing impeachment precedents and whether they have any application to Judge Real's behavior," she said.

STATE JUDICIAL RACES

Judicial Politics Run Amok

Editorial – New York Times

9-19-06 -- Contests for important state judgeships around the country are getting nastier, more partisan and tons more expensive. Monied interests seeking to influence court decisions are spending lavishly to boost preferred candidates, much as they do in campaigns for regular political office. Today’s round of judicial elections in Washington State points to the seriousness of the problem and its threat to judicial integrity, independence and impartiality. . . . With three seats on the Washington State Supreme Court up for grabs, a record amount of money — some $2 million — has poured in to underwrite the contested races. Some of the television and radio attack ads against the incumbent chief justice, Gerry Alexander, were so unfair or misleading they would have seemed out of line even if the contests were for local alderman instead of a lofty position on the state’s highest court. The inevitable result: reinforced ties between would-be judges and their partisan supporters, and diminished public respect and confidence in judicial decision making no matter which candidates win today.

August 2006

FEDERAL COURTS

President Taylor A federal judge rewrites the Constitution on war powers.

In our current era of polarized politics, it was probably inevitable that some judge somewhere would strike down the National Security Agency's warrantless wiretaps as unconstitutional. The temptations to be hailed as Civil Libertarian of the Year are just too great. . . . So we suppose a kind of congratulations are due to federal Judge Anna Diggs Taylor, who won her 10 minutes of fame yesterday for declaring that President Bush had taken upon himself "the inherent power to violate not only the laws of the Congress but the First and Fourth Amendments of the Constitution, itself." Oh, and by the way, the Jimmy Carter appointee also avers that "there are no hereditary Kings in America." In case you hadn't heard. . . The 44-page decision, which concludes by issuing a permanent injunction against the wiretapping program, will doubtless occasion much rejoicing among the "imperial Presidency" crowd. That may have been part of her point, as, early in the decision, Judge Taylor refers with apparent derision to "the war on terror of this Administration."

We can at least be grateful that President Taylor's judgment won't be the last on the matter. The Justice Department immediately announced it will appeal and the injunction has been stayed for the moment. But her decision is all the more noteworthy for coming on the heels of the surveillance-driven roll up of the terrorist plot in Britain to blow up U.S.-bound airliners. In this environment, monitoring the communications of our enemies is neither a luxury nor some sinister plot to chill domestic dissent. It is a matter of life and death. . . . So let's set aside the judge's Star Chamber rhetoric and try to examine her argument, such as it is. Take the Fourth Amendment first. The "unreasonable search and seizure" and warrant requirements of that amendment have their roots in the 18th-century abuses of the British crown. Those abuses involved the search and arrest of the King's political opponents under general and often secret warrants.

FLORIDA  

300 more civil cases uncovered in Broward court

More cases have been hidden from the public in Broward Circuit Court, including the divorces of public officials and business people.

By Patrick Danner and Dan Christensen

More than 300 civil cases filed between 1989 and 2001 in Broward Circuit Court were kept secret from the public, showing that the hiding of select lawsuits was a deep-rooted practice. . . . Dozens of the confidential divorces and lawsuits involve the powerful and influential, including politicians, judges, lawyers and law enforcement officers. . . . Those cases come on top of another 107 civil cases that were kept off the public docket between 2001 and 2006, reported by The Miami Herald in April. At the newspaper's request, the Broward clerk's office searched its records and located another 314 cases. . . . All the cases are now on the public docket, under new rules issued this summer by Chief Judge Dale Ross, but their contents remain sealed.

See the list of cases on the secret docket (.pdf)

UTAH  

Justices shouldn't be at legislators' whim

OPINION By Bob Bernick Jr., Deseret Morning News

Can the Utah Legislature bully state court judges into ruling certain ways on high profile cases? . . . At first glance, most people would say no to this question. . . . First off, legislators wouldn't try to do this — for they are basically good public servants and wouldn't cross that ethical line. . . . Secondly, the judges would not allow such a thing to happen, even if wrong-headed legislators tried to do it. . . . And while I agree such a heavy-footed attempt rarely happens. I don't believe it is totally out of the question, either. . . . Now comes state Sen. Chris Buttars, R-West Jordan, who is drafting a bill for the 2007 Legislature that Buttars says is aimed at making judges who issue "terrible decisions" more accountable.. . . Buttars sees a two-prong approach. . . . Currently, the Utah Constitution says that the governor nominates people to be judges and the state Senate confirms or rejects them. After a judge's initial term of three years, he stands for retention, and if voters approve of his job by 50 percent plus one, he gets a six-year term on the bench. Justices on the Utah Supreme Court serve 10-year terms before they face voters. . . . Buttars says that when a judge's term is up, he should come back through the Senate confirmation process. In other words, senators could deny the judge another term, if he has made too many "terrible decisions." . . . Short of actually denying a judge another term, even if senators ultimately do reconfirm a judge, through the Senate's public hearing process some of the judge's shortcomings could be brought forward, says Buttars. These would be reported by the media, and the judge could — appropriately so in Buttars' mind — lose his retention election.

Court Reform

by Jeremy Meister

The year 2005 has been very interesting in terms of the Supreme Court of the United States. For the first time in years, not only will at least one seat be filled but two. This has caused a brutal debate between anyone who is politically minded - especially the left that has seen most of its legislation realized through the judicial branch. . . . The war between the sides comes from the precedent of "judicial review". That is the idea that a court can declare a law "unconstitutional" thereby negating it with a single sweep of its hand. The great irony is that "judicial review" itself is not a power delegated to the court in the Constitution. It was "found" there by Chief Justice Marshal in the early years of the 1800's. . . . This was a revolutionary assertion and one that was totally unintended by the founders. The court system was originally set up to find whether or not someone was guilty of breaking a law - not creating a law by itself or asserting new precedents through the power of its rulings. The court was now taking it a step further not just proclaiming someone innocent, but throwing out the entire law proclaiming them guilty to begin with. . . . Marshal himself only used judicial review once. It wouldn't be used again until the 1850's. Unfortunately, it opened a Pandora's box of trouble for the modern era. Since judges are put on the bench for life there is no way to get rid of one the way citizens could usher out unpopular Presidents or Congresspeople. Add in the fact that modern medicine is allowing humans to live longer which means that someone put in that position could be there for a long time. And whereas judicial review was a rarety in the past, it's now the staple of the court with every county magistrate throwing out things he or she disagrees with.

FEDERAL COURTS

Seminar Program Keeps Judges in Dark on Donors;
Some See Ethical Issue With Jurists Unaware Of Corporate Litigants' Hand in Free Courses

By Lawrence Hurley, Daily Journal Staff Writer

Federal appellate Judge Andrew J. Kleinfeld may be best known for writing a decision that was music to the ears of oil giant ExxonMobil Corp. . . . That was five years ago, when the 9th U.S. Circuit Court of Appeals ruled that $5 billion in punitive damages amounted to an excessive jury award against Exxon for its role in the huge Alaska oil spill of 1989. . . . But despite his participation in such a high-profile case, which continues to this day, the Fairbanks, Alaska-based jurist said recently he did not know that Exxon has for years been giving tens of thousands of dollars to a university-affiliated judicial education program where he studied and now sits on an advisory board. . . . His unawareness is not an accident: The Law and Economics Center based at Virginia's George Mason University has a strict policy of not telling judges where the funding comes from for the all-expense paid seminars that it sponsors at luxury resorts throughout the country.. . . At a time when Congress is aggressively scrutinizing the conduct of federal judges, some legal ethics experts and even some of Kleinfeld's colleagues say a "don't ask, don't tell" approach to funding disclosure puts judges in a precarious spot.

IMMIGRATION COURTS

Immigration system needs constant judges

EDITORIAL

Who will judge the judges?

That's the question that Attorney General Alberto Gonzales has asked about the nation's 215 immigration judges. And what he found was a system in which the judges, who handle hundreds of thousands of immigration cases each year, are not subject to any type of meaningful review. So the attorney general, our nation's top law enforcement official, is looking to change the rules. . . . Gonzales has announced that immigration judges, who work for the Justice Department and are not part of the federal judiciary, will be subject to an annual performance review. Additionally, he is looking to implement added changes that are only now in the planning stages. . . . The attorney general had ordered a review of the immigration judges after complaints from federal appeals courts from around the nation. Some of the immigration judges had been accused of inappropriate treatment of those in their courts, while others had unusually large case backlogs or high rates of decisions that were reversed on appeal.

Labor Agreement Is a First for Immigration Judges

By Stephen Barr

4-11-06 -- After seven years of negotiations, the Justice Department and a union representing 218 immigration judges signed their first collective-bargaining agreement yesterday. . . . Leaders of the union, the National Association of Immigration Judges, said the contract would improve communication between Justice headquarters and the judges, who serve in 53 cities and detention centers across the country, by guaranteeing quarterly meetings to discuss security, workload and other issues. . . . By most accounts, immigration law is second only to tax law in complexity, and interest in immigration issues and deportation cases has risen sharply since the Sept. 11, 2001, terrorist attacks. The judges, who are employees of the Justice Department, handle about 300,000 cases a year, rendering final agency decisions on asylum claims and some national security issues.

ge empowered to make what amount to life-and-death decisions.

Immigration Judges Facing Performance Reviews

By Nina Bernstein

4-9-06 -- Attorney General Alberto R. Gonzales warned the nation’s 215 immigration judges on Wednesday that they all faced annual performance evaluations for the first time and regular scrutiny to detect high reversal rates, frequent complaints or unusual backlogs. . . . . But the consequences of failing were not spelled out. And some of the judges said they worried that evaluations would increase pressure on all judges to make decisions faster, without weeding out the handful of judges who have drawn the most criticism. . . . Immigration judges, who now handle 300,000 cases a year under stepped-up guidelines, are employees of the Justice Department, not the federal judiciary. After battling for years to unionize, they ratified their first labor contract on Monday. . . . Performance evaluations were among several measures, most still in the planning stages, that Mr. Gonzales announced here in a luncheon speech at the judges’ annual training conference. He has been under mounting pressure to disclose the findings of a comprehensive review that he ordered last January after federal appeals courts around the country complained of a pattern of biased and incoherent decisions on asylum and rebuked some immigration judges by name for “bullying” and “brow-beating” people seeking refuge from persecution.

Immigration Court Reforms Welcomed, But Some Problems Overlooked

Eleanor Acer & Danielle Lewis, Human Rights First

4-2-06 -- The Justice Department committed yesterday to a series of significant reforms to the U.S. immigration courts and the Board of Immigration Appeals. While the reforms are a major step forward toward a more fair immigration and asylum process, they do not adequately address a number of problems in the system. . . . “Many of these reforms are critical and long overdue,” said Eleanor Acer, director of Human Rights First’s refugee protection program. “At the same time though, we are disappointed that the Justice Department decided not to reverse some of the most troubling changes made, at the prompting of former Attorney General John Ashcroft, at the Board of Immigration Appeals.” . . . These changes, referred to as “streamlining,” had prevented many asylum seekers from having asylum denials reviewed by three-member panels of the Board. Human Rights First had urged the Justice Department to reinstate this more thorough and appropriate form of review. 

MICHIGAN  

So much for free speech

by Jack Lessenberry, Metro Times

8-9-06 -- Geoffrey Fieger, the flamboyant and brilliant courtroom lawyer, has been known to be rude, crude and to say things that are in very bad taste. . . . Last week, however, we learned that four of the seven Michigan Supreme Court justices are far ruder, cruder, more obscene and — this is the scary part — far more dangerous than old potty mouth. . . . Fieger only calls people names. . . . Chief Justice Clifford Taylor and Justices Maura Corrigan, Stephen Markman and Robert Young attacked the U.S. Constitution and our right to freedom of speech. They did so by saying it is all right to reprimand — punish — Fieger for calling judges names. . . . Nobody disputes that Geoffrey Fieger did this. After all, this is a man whom I once heard tell the White House fellows in Washington, D.C., that John Engler was conceived when his father had sex with a pig. . . . This time, what he said was much milder. Three appeals court judges reversed a big medical malpractice verdict Fieger had won, so in 1999, he attacked them on his radio show. He called them jackasses, and suggested his client, who had only one finger, "should shove it up their asses."

Puritan Theocracy vs Judicial Tyranny

By Thomas Brewton

Puritans believed in the democracy of New England town meetings.  Liberals believe that unelected judges have an unlimited prerogative to create law, even when it is overwhelmingly opposed by the majority of citizens. . . . As elaborated in Theocracy: the Origin of American Democracy, Congregational (Puritan) churches were the original towns of New England in the 17th century.  And they were models of democratic government in which each church member had a direct voice in the governance of the church and the civil authority. . . . In sharp contrast, liberals today impose their minority views upon the majority through judicial fiat. . . . Groundwork for this anti-democratic hegemony was laid by later-to-be- Supreme Court Justice Oliver Wendell Holmes, Jr., with his 1881 “The Common Law.” That work was an attack on tradition, holding that the ancient common law, originating under Henry II in 12th century England, was no longer sufficiently modern and should be largely scrapped to reflect the new doctrines of socialism.

July 2006

FEDERAL COURTS

America's Worst Judges

Talk about injustice! How do these people stay on the bench? The 2006 Broken Gavel Award winners.
By Dale Van Atta, From Reader's Digest
Dirty Little Secret . . . One had a habit of viewing pornography on his office computer. Another spread a nasty rumor with an eye toward damaging a rival's career. A third is accused of callously ignoring a desperate woman's pleas for help. . . . Bad as that behavior sounds, it's worse when you consider that the ones doing the misbehaving are judges. That's right -- people we pay to know the difference between right and wrong. When judges cross the line separating the two, they undermine one of the bedrock institutions of our democratic society, and we all lose. Introducing this year's Broken Gavel Award winners -- three judges who've truly earned the dishonor.

Fortinberry named one of 'America's Worst Judges'

By Carol Hopkins Of The Oakland Press

For spreading rumors about a fellow judge, Dana Fortinberry has been named one of the three worst judges in the nation in an August Reader's Digest article. . . . The five-page article, titled "America's Worst Judges," was written by a Virginia-based freelance author and a contributing editor to the magazine, Dale Van Atta. . . . In it, he presents the "broken gavel" award to Fortinberry; Brandt Downey, a Florida Circuit Court judge who viewed pornography on his work computer; and Richard Palumbo, a Maryland District Court judge who ignored a woman's requests for protection from an abusive husband. The husband eventually found the woman and doused her with gasoline, resulting in burns over 60 percent of her body. . . . Fortinberry, of the 52nd District Court, 2nd Division, in Clarkston, was mislabeled in the story as a circuit court judge. . . . Fortinberry responded to the article by stating she is "very proud of my judicial record of accomplishments, including taking my courtroom into the schools to educate our young people and establishing a very successful Sobriety Court program to end the addiction cycle of repeat drunk driving offenders. My courtroom is always accessible to any members of the press and the public who want to fairly and objectively evaluate the job I do each and every day as judge of the 52-2 District Court."

FEDERAL COURTS

Federal Judge Subject Of Impeachment Proceedings

© 2006 North Country Gazette

7-20-06 -- The chairman of the House Judiciary Committee has begun impeachment proceedings against an 82-year-old judge in California accused of misconduct in a bankruptcy case. . . . Congressman James Sensenbrenner (R-Wis) has introduced a resolution that would allow his committee to investigate U.S. District Judge Manuel Real. . . . Real has been on the bench since appointed in 1966 by President Lyndon B. Johnson. Real, was cleared of judicial misconduct in October, 2005 by the Ninth Circuit Judicial Counsel who ruled that his expression of regret for "misunderstandings" concerning his actions in a bankruptcy case was "adequate corrective action" and that no additional sanctions were warranted

Congressman's Gambit Puts Judge on Path to Impeachment

By Lawrence Hurley, Daily Journal Staff Writer

7-19-06 -- Los Angeles-based federal Judge Manuel L. Real is now officially public enemy No. 1 in Congress' ongoing war against the judiciary. . . . Powerful Republican Rep. F. James Sensenbrenner Jr. of Wisconsin took his long-running campaign against the third branch to a new level Monday night when he formally launched an inquiry that could lead to the impeachment the 81-year-old jurist. . . . In the unlikely event that Real is convicted, he would be only the eighth judge to be removed from office in United States history, and the first from California. . . . Sensenbrenner's decision to table a resolution calling for possible impeachment triggers an inquiry that will be conducted by the House Judiciary Committee, which he chairs. . . . This is the latest in a long line of potshots Sensenbrenner has taken at the judiciary in recent years over what he sees as its failure to police itself. . . . He is also pushing a bill that would set up an office of inspector general for the judiciary. . . . "Exhibit A" in that effort is the 9th U.S. Circuit Court of Appeals' failure to discipline Real when the ethics complaint in question first reached its judicial council.

Texas Judge Contends Lawrence v. Texas Sodomy Case Based on Staged Evidence

7-19-06 -- (LifeSiteNews.com) – In her new book, Sex Appealed, a Texas judge documents why she concludes that a landmark 2003 US Supreme Court decision striking down anti sodomy laws was based on pre arranged arrests staged to test the constitutionality of Texas’ law. . . . The non fiction book, her first, is subtitled Was the U.S. Supreme Court Fooled? The controversial 6-3 U.S. Supreme Court ruling favoring the defendants in the landmark case is the trigger event kicking away roadblocks to gay marriage. Lawrence v. Texas remains in headlines today in a larger cultural war over adoption, employee benefits, the military's Don't- Ask, Don't -Tell policy, and related issues of judicial activism.

April 2006

Ethics Lapses by Federal Judges Persist, Review Finds

FOR IMMEDIATE RELEASE, Community Rights Counsel

202-296-6889 -- 202-296-6895

4-18-06 -- As a major investigative story in The Washington Post today (April 18, 2006) documents, eight years after judicial junkets and judicial stock conflicts became front page news they remain major problems undermining the judicial branch. The story, based on research by Community Rights Counsel (CRC), documents that at least 11 federal judges violated federal law either by ruling in a case despite owning stock in a party or by failing to report a judicial junket on their financial disclosure forms.

For background documentation on judges in The Washington Post article that ruled while owning stock click here.

These problems remain because the judiciary has not taken the steps necessary to combat them. While the judiciary has touted its efforts to educate judges on ethical mandates, it has to date rejected all efforts to limit judicial participation in junkets and to post up-to-date recusal lists (a list of all of the judges' disqualifying financial holdings) at local courthouses and on the internet.

Senator Leahy introduced legislation in 2003 that would have addressed these serious problems by banning junkets and requiring the posting of recusal lists. Representatives of the Judicial Conference - the judiciary's policy making body -- convinced Senator Leahy to pull this measure to give the judiciary one last chance to "self-regulate." Instead, as mentioned above, the judiciary's Code of Conduct Committee made things worse by loosening the ethical standards for junkets.

In response, Senator Leahy has reintroduced legislation that would address these problems, The Federal Judiciary Ethics Reform Act of 2006 (S. 2202). The legislation would ban junkets while providing public funding for any needed judicial education. It would also require judges to make their recusal lists publicly available.

As the new head of the Judicial Conference, Chief Justice John Roberts should work with Senator Leahy in solving these problems. There is reason for optimism that the new Chief Justice will take these problems seriously. Senator Russ Feingold asked John Roberts about the issue of judicial junkets at his confirmation hearing and Roberts committed to studying the issue if confirmed. He also stated, helpfully, that it is "clear that special interests should not be able to lobby federal judges."

For more information on CRC's effort to ban corporate judicial lobbying at judicial junkets, click here. For more information on CRC's work on exposing stock conflicts, click here.

VIRGINIA

The Justices Miss the Point

Faced with a Virginia prisoner who may be innocent, the Supreme Court talks about treaties.

4-7-06 -- THE SUPREME COURT heard arguments last week in the latest salvo in a long-running legal dispute about the proper role of foreign and international law in American adjudication. The case of Mario Bustillo, convicted in Virginia of a brutal murder in Springfield that occurred in 1997, raises anew the question of what happens when American states fail to let foreign nationals accused of crimes contact their consulates, as a treaty requires. Police did not permit Mr. Bustillo, a Honduran, to contact his government after his arrest, and he is serving 30 years in prison. The legal issue presented by his case -- along with another case from Oregon -- is not terribly difficult or compelling. He should lose. Yet there's another issue in this case that has been largely lost amid the high court's fascination with the scope of treaty obligations: Virginia authorities may have prosecuted the wrong man, and they clearly suppressed important evidence suggesting his innocence. . . . On the narrow question, yes, the Vienna Convention on consular relations requires that when nations arrest each other's citizens, they tell one another and give the detainee the right to contact his home country's consulate for assistance. But this treaty was designed to gives states certain privileges, not to grant judicially enforceable rights to individuals. So state failures to follow the treaty may create a diplomatic issue between the United States and other countries and potentially raise risks for Americans arrested abroad. But they don't create a basis for an appeal by a person convicted of a crime.

How to Remove a Federal Judge

Download: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=895607

SAIKRISHNA PRAKASH
University of San Diego School of Law
STEVEN DOUGLAS SMITH
University of San Diego School of Law

San Diego Legal Studies Paper No. 07-41
Yale Law Journal, Vol. 116, 2006

Abstract:

Most everyone assumes that impeachment is the only means of removing federal judges and that the Constitution’s grant of good behavior tenure is an implicit reference to impeachment. This article challenges these widely shared assumptions. Using evidence from England, the colonies, and the revolutionary state constitutions, the article demonstrates that at the time of the founding good behavior tenure and impeachment had only the most tenuous of relationships. Good behavior, when discussed in the context of the government, consisted of a tenure in office whereby the officer would forfeit her office upon a judicial finding of misbehavior. There would have to be a trial, the hearing of witnesses, and the introduction of evidence, with misbehavior proved by the party seeking to oust the tenured individual. Impeachment, by contrast, referred to a criminal procedure conducted in the legislature that could lead to an array of criminal sanctions. In England and in the colonies, impeachment was never seen as a means of judging whether someone with good behavior tenure had forfeited her office by reason of misbehavior. Most state constitutions did not equate good behavior tenure with impeachment either. Indeed, some distinguished them explicitly. Compared to prior scholarship on good behavior tenure, this article provides a more complete, and therefore more credible, understanding of good behavior tenure. In particular, we demonstrate several propositions for the first time: 1) that the English understanding of good behavior tenure had migrated to her colonies and continued in independent America; 2) that good behavior tenure was not limited to government officials but could be granted to anyone, including tenants in land, licensees, and employees; 3) that the English writ of scire facias was not the only mechanism for ousting those with good behavior tenure; and 4) that the state constitutions generally did not regard impeachment as a means of judging good behavior. Taken together, these propositions devastate the conventional conflation of good behavior tenure with impeachment.

Suggested Citation

Prakash, Saikrishna and Smith, Steven Douglas, "How to Remove a Federal Judge" . Yale Law Journal, Vol. 116, 2006 Available at SSRN: http://ssrn.com/abstract=895607