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Chapter 2: The Contemporary Judiciary
Chapter 3: Ensuring Judicial Responsibility
Appendix B: Illustrative Rules
Members of the Task Force
A. Leo Levin, chairman
Abner J. Mikva
U.S. Circuit Judge, Court of Appeals,
President, League of Women Voters, Washington, D.C.
Orrin B. Evans Professor of Law
University of Southern California Law Center
Dorothy S. Ridings
President and Publisher, The Bradenton Herald,
Jack B. Weinstein
U.S. District Judge for the Eastern District of New York
Justice, Supreme Court of Georgia
Professor of History, Northwestern University
Thomas E. Baker, rapporteur
Professor, Texas Tech University School of Law
Report of the Task Force
Article III of the Constitution states that judges "shall hold their Offices during good Behaviour." They can be removed from office under Article II only upon impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors. Our nation has been fortunate in its choice of the men and women who have graced the federal bench over the past two centuries: they have, in large measure, exemplified a tradition of distinguished public service. Nonetheless, there have been a few exceptions. As a result, additional mechanisms have been put in place to remedy the problems created by judges who misbehave. The question is whether these mechanisms are serving their intended functions, whether they should be strengthened, and if they should, how it can be done without inappropriately interfering with the independence of the judiciary.
The institutional independence of the federal judiciary is critical to our nation's political system. The federal judiciary is unanswerable to any electorate; it possesses powers distinct from the Congress and the executive as a means of protecting the essential civil liberty of every individual who seeks to claim the protection of the law. Judicial independence insulates each federal judge from improper pressure in the discharge of judicial duties. The personal integrity of individual federal judges is equally critical for the judiciary to carry out this important responsibility. That is, federal judges must be as free as possible from personal, financial, racial, gender, or religious bias, as well as political interests.
But judicial independence has never meant complete freedom from scrutiny. Under the Constitution, the House of Representatives is alone empowered to charge a federal judge by voting impeachment, and the Senate is given the sole power of holding a trial to determine whether to remove a judge from office. Thus, the same document that gives life tenure to federal judges and protects their salaries also ensures that judges can be removed from office.
Removal from office, which has been rare, has usually involved cases of criminal acts, such as bribery and tax violations. Lesser breaches of judicial responsibility deserve lesser sanctions. In these cases, however, there is less agreement on what constitutes misconduct and what remedies are appropriate.
This independent Task Force was established in response to recent public debate over how to ensure judicial accountability. The debate, spurred by three impeachment cases, has included many other questions revolving around the question of what makes a "good" judge. Consequently, the Task Force set out to reevaluate the major mechanisms for monitoring and sanctioning federal judges: the 1980 Judicial Councils Reform and Judicial Conduct and Disability Act, impeachment, and judicial socialization.* We did not expect, and did not find, a crisis in need of emergency measures. But we believe that there is room for improvement, and our Report is directed to that end.**
*Our Report is limited to issues of individual responsibility. We explicitly decline to enter the debate about the proper role of the federal judiciary (what the background paper calls "institutional responsibility").
**This Report truly is a collective effort. Although we are not in unanimous agreement about every statement in it, we have resisted the diluting effect of seriatim individual statements on each issue.
REPORT OF THE TASK FORCE
The 1980 Act
During the 1960s, widespread criticism of the behavior of judges was accompanied by complaints that public mechanisms for control were inadequate. At the state level, a surge of experimentation with independent judicialconduct commissions took place. In the 1970s, the spectacle of Watergate revived congressional interest in government responsibility in general-including the responsibility of the federal judiciary. The stage was set for serious consideration of reforms proposed by Senators Tydings, Nunn, and DeConcini. In the House, Representative Kastenmeier and others led the way to a legislative compromise.
The result was the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980,* the first federal
*The 1980 act, which applies to circuit, district, and bankruptcy judges and magistrates, but not to Supreme Court justices, provides for a series of inquiries relating to complaints of judicial misconduct or disability. Complaints are filed with the clerk of the court of appeals of the relevant circuit and reviewed by the chief judge of that circuit. The chief judge may dismiss the complaint or, if it is determined that the complaint should be investigated further, the chief judge must appoint a special committee to report to the judicial council of the circuit. The judicial council then has the power to certify the disability of a judge, censure or reprimand a judge, or take any other appropriate action except the removal of a judge. Should the judicial council determine that the conduct "might constitute grounds for impeachment" or that the conduct "in the interest of justice, is not amenable to resolution by the judicial council," the matter is referred to the Judicial Conference of the United States. The judicial conference (composed of the Chief Justice of the United States, the chief judges of the courts of appeals, the chief judge of the court of international trade, and a district judge (Continued on page 6)