cerns have become part of the routine of the federal courts. For example, in recent years federal courts have become increasingly involved in setting policies for public schools-including school-year calendars, school board elections, school taxes and expenditures, graduation requirements, and curriculum plans.

One of the most controversial areas of increased federal court activity has involved the rights of those suspected or accused of crime: when specified procedures for searches, arrests, and interrogations are not followed, federal courts apply sanctions, such as suppression of evidence and civil lawsuits. While three decades ago, federal courts uniformly took a hands-off approach to state and local corrections facilities, now they are hands-on administrators, dictating corrections policy on physical plant, health services, food, and discipline.

Federal courts also have imposed orders that their judgments be substituted for those of local and state administrators and professionals in mental health facilities-admittedly, often as a result of deplorable conditions. Court orders routinely review decisions on the confinement and treatment of both dangerous and notdangerous patients and the adequacy and effectiveness of their treatment.

This rather recent phenomenon of lower-federal-court intervention is the result of lawsuits brought against state and local officials claiming violations of constitutional rights in government programs and by government institutions.33 Some suits are filed after unsuccessful efforts to achieve reform through traditional political means; others are filed as part of those efforts. If the lower federal court decides that there has been a constitutional violation, a decree follows, detailing specific reforms state officials must accomplish. The more detailed the decree, the more attenuated the relief ordered is from the general language and intent of the Constitution, and the more deeply it in

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trudes on the traditional functions of the state legislature to establish state policy and the state executive to implement state policy.

Everyone must concede that, at least in theory, the federal judiciary can go too far. To prove that the federal courts have, in fact, done so, however, would require detailed and comprehensive study far beyond the realm of this paper. Many who have attempted such studies have argued convincingly that it is true. Even those who remain unconvinced that the federal courts have gone too far must concede that the direction of the drift is clear. More and more subjects of public policy are moving to the federal judiciary from the federal legislative and executive branches and from the state government.

Chapter 3

Ensuring

Judicial Responsibility

Over the two hundred years of American history, various mechanisms have evolved to ensure the responsibility of individual judges and of the federal judiciary as a whole. These include the appointment process, judicial socialization, ethical restraint, recusal and disqualification, precedent, legal doctrines, individual liability, review of judicial decisions, and congressional oversight under the Constitution and by statute.

The Appointment Process

The procedure for selecting federal judges is prescribed by the Constitution. Article II, Section 2 stipulates that the president "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint" judges on Article III courts.

From time to time, critics have complained that political considerations too often come before merit, that the trouble with federal judges is not venality or corruption but that too many are, in the words of former attorney general Herbert Brownel, "ordinary, likable people of small talent."1 Of more relevant concern here is ensuring the selection of judges who will be true to the ideals of federalism and the separation of powers.

Various approaches have been suggested to promote the selection of responsible judges. Many favor appointing more state judges to the federal bench or requiring previous trial experience as a qualification for the position of appellate judge. In addition to solid prior experience, nearly all presidents have sought justices who share their views and political persuasions? For example, the Reagan administration practiced a vigorous screening process to identify nominees who would adhere to principles of self-restraint in constitutional and statutory interpretation.

The screening that takes place during the appointment process for the federal judiciary is most likely the chief explanation for the minimal number of allegations of corruption against federal judges. Under the modern procedures of FBI checks, Department of Justice review, and ABA evaluation, the integrity and habits of a nominee are scrutinized; anyone who does not measure up is kept off the bench. Thus, the appointment process performs double duty as a mechanism for keeping the already corrupt, infirm, or unable person off the bench and as a screen to select judges who are, at once, independent and committed to the separation of powers and federalism3

Judicial Socialization

It is through the process of judicial socialization-that is, adjusting to the role of federal judge and becoming integrated into the system-that the individual judge acquires the attitudes, behaviors, and norms of the federal judiciary. It is a process that begins immediately after appointment and is influenced by, among others, fellow judges, staff, and members of the bar

The transition to federal judge is unique for each individual, depending upon personality, education, and professional and personal experience. New judges may face problems because of unfamiliarity with areas of the federal

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law and with federal courtroom procedures, difficulties with assuming new administrative responsibilities, and general psychological adjustments to the additional responsibility and the need for detachment."

Since new judges learn their roles from veteran judges— by observing in their courtrooms, by general discussions, and by seeking advice on particular problems-judicial socialization is a major restraint on judicial discretion and a powerful impetus toward judicial responsibility. Given recent trends, however, peer pressure, while perhaps reinforcing individual integrity, does not appear to be moderating the expansive view federal judges have of the role of the federal judiciary.

The impact of public opinion on the judicial socialization process is imprecise. Federal judges, of course, are not expected to mirror public opinion on legal issues. As Justice (now Chief Justice) William H. Rehnquist explained, "No such judge can conscientiously say in so many words 'I gave you my judgment when I decided that the Constitution meant thus and so, but since the public overwhelmingly disagrees with my interpretation of the Constitution I will therefore change my mind."" That would forfeit all independence. Judges are human, however, and although they may differ in how strongly they are influenced, they feel the subtle pull of community values? One reason why public opinion may not have much influence is that it generally accepts the value of judicial independence. Specialized opinion in law reviews and legal journals, however, does have some influence on the course of the laws

The popular press only occasionally plays a part in checking judicial misbehavior, limited largely to exposing individual wrongdoing. The proper role of the courts is infrequently discussed on the editorial pages. Ultimately, individual citizens must apply pressure on elected representatives to be more responsible for policy and to exercise their power to resist judicial encroachment.