Can Federal Judges Police Themselves?
Features
Stuff from us
Academic Legal Writing: personalized bookplates
Sources on the Second Amendment
Can Federal Judges Police Themselves?
|
ContactSubscribe
FeaturesStuff from usAcademic Legal Writing: personalized bookplates Sources on the Second Amendment BlogrollArchivesThe Volokh Conspiracy uses and recommends: |
All Judicial appointment/retention systems (except contested partisan elections) are rigged to retain the incumbent.
The public knows nothing, no one has any incentive to educate the public, and the lawyers are terrified of telling the truth and later having to appear before the pissed-off, tyrant (who IS competent enough to screw-over any litigant he wants to). The other judges just play the three Monkeys -- See no evil, Hear no evil, Say no evil. The organized Bar just panders in fear of retribution.
Once in a while a tenured Professor will speak out.
In the case of the judiciary, however, the protections that are meant to safeguard judges from political interference also tie judges' hands when they seek to discipline other judges for gross misconduct. That's simply a feature of the constitutional design--no penalty more serious than forcing a judge not to hear cases can be imposed by the judiciary itself. If a judge is recalcitrant and refuses to resign his/her position, Congress is the only actor with the power to correct the situation.
Maybe the federal government should be a big game of rock-paper-scissors. Congress oversees the president, the president oversees the courts, the courts oversee the legislature.
In more controlled circuits, the Chief Judge can sometimes informally convince an over-the-hill judge like Real that it's time to retire, go fishing, enjoy the grandkids, etc. But since we're talking about the Ninth Circuit, I assume any sort of oversight is a mere pipe dream. Even without the distraction Alex Kozinski has been having with his personal server security problems lately.
Certainly impeachment might remove a judge not engaging in "good behavior". But does it preclude existence of any lesser mechanism, such as a legislatively created and executive appointed commission to oversee judges and remove if necessary for bad behavior that falls short of impeachable?
I know, for example that a California commission has removed state judges for behavior (basically being mentally incompetent) that was not readily impeachable. I'm not recommending California generally as a model of good government, but this example seems worth considering.
And before everyone tries to pile on the Ninth Circuit for this, that court has repeatedly scolded Real and taken cases from his court when he really screws things up. There’s not much else it can do.
Nevertheless, it was clear how the case was going to turn out from the oral arguments. I think especially revealing that one of the panel kept asking if this attorney or that attorney representing Microsoft was a patent attorney. It was clear that they all found that attorney (John D. Vandenberg?) incredulous and all but called him out for misrepresenting the case. The outcome was also likely, given how much time they spent with Appellant's counsel(Brian E. Ferguson) discussing their power to reassign the case.
The federal bench desperately needs a means of self-regulation, and Congress does not want to go there with enabling legislation, let alone constitutional amendments.
The federal bench is losing respect for all sorts of reasons. This is just one.
IMO we're on about a twenty-year road to an elective federal judiciary. Things will get worse and worse until the obstacle to change is overcome, at which point the ensuing change will be much greater than in the absence of barriers to incremental change.
The answer is clearly, "no." They will not.
They might not have the legal means to do so. It may be that a Constitutional amendment is required, but more likely Congress could enact legislation giving the federal courts such authority. But right now it looks like the federal bench plain can't do it. Maybe they wouldn't if they could, but first they have to have the means.
I am trying to reconcile your belief that "we're on about a twenty-year road to an elective federal judiciary" with your recognition that a Constitutional amendment may be required even to allow the federal judiciary to police itself.
I can't imagine 2/3 of the Congress, let alone 3/4 of the states, going down the road of elected federal judges.
I'm somewhat leery of impeachment proceedings, given the very politicised nature of judicial nominations. A Congress that is largely controlled by one party could impeach judges who were appointed by the other party, knowing that they would be replaced with one of their own (if a same-party President were in the White House) or a more moderate judge.
It's politics, and that starts with your assumption that state legislatures don't want an elective federal judiciary. They'd LOVE it. Congress is another matter, but an elective federal judiciary would be a "great and wonderful" thing for state politicians and state governments. Also note that Congress is not the only source of constitutional amendments - 3/4 of the state legislatures could enact legislation calling for a national convention to suggest amendments, with each proposed amendment requiring a 3/4 vote of all legislatures.
I personally see big changes coming, eventually, to the federal judiciary due to terminal hubris. While IMO an elective federal judiciary would be somewhere between bad and absolutely awful as a matter of policy, IMO the compromises inherent in changes of such magnitude will result in them becoming elective.
I personally would rather have an 18-year limit for federal judicial service (total in any capacity) plus giving the Supreme Court disciplinary authority over all federal courts. Most states have systems for oversight of their own judiciaries - in California it is the Commission on Judicial Performance, but I'd rather give the U.S. Supreme Court regulatory authority over the federal judiciary.
Given that the Supreme Court's hubris has led it to blatant violation of separation of powers and a demand that it, as a body immune to public oversight, make decisions in war that will get immense numbers of the public killed, I'd also like to see them subject to retention elections every two years.
But IMO we'll most likely end up with a fully elective federal judiciary. Them that does the dying due to the Supreme's fatal military decisions will insist on it.
Personality problems like Judge Real will just bring that day sooner by tubing public respect for an independent federal judiciary.
Yes, but they would never be able to remove them without some level of bipartisan support. Remember, it takes 67 senators to convict on an article of impeachment, and the chances of either party getting 2/3 control of the Senate are basically nil.
I disagree. Congress will never pass such an amendment--and I cannot foresee 3/4 approving it--nor can I see 3/4 of the states calling for a constitutional convention.
The names will change but the basic system will be the same 100 years from now.
Count on it within a year after a million Americans are killed due to the Supreme Court's grant of Constitutional rights to terrorists. There are other ways this might happen, but that would certainly do it.
Given that the Supreme Court's hubris has led it to blatant violation of separation of powers and a demand that it, as a body immune to public oversight, make decisions in war that will get immense numbers of the public killed, I'd also like to see them subject to retention elections every two years.
Given that a large majority of Americans most likely couldn't even tell you what "separation of powers" means, I wouldn't hold my breath waiting for a public outcry to deal with the Supreme Court's supposed hubris.
The California superior courts have the following rules which IMO should be adopted by the federal courts:
(1) A litigant can make a one-time "peremptory challenge" of a randomly selected judge (i.e., the litigant can request -- without even giving a reason -- that a different judge be randomly selected). Under this system, judges with bad reputations may find themselves with few or no cases.
(2) When an appeals court remands a case, the party that lost in the original decision may request a different judge. This certainly makes sense because the original judge is likely to try to defend his original decision.
[Important Note to Helpful Readers: If we have confusing typos and especially ugly formatting errors, such as an unclosed underline or bold tag, we'd love to hear from you about them -- but please e-mail the author about this, rather than leaving a comment. We often won't read the comments for a while after the post, and if there's a glaring formatting error, we'd see it quickly when we revisit the post, even without the comment; and in any event the comment likely isn't going to be that helpful to your fellow comment readers. So please e-mail us directly about glitches like this. Thanks!]
Comment Policy: We'd like the posts to be civil, of course (no profanity, personal insults, and the like), but we're also hoping that people try to be as calm, reasoned, and substantive as possible. So please, also avoid rants, invective, substantial and repeated exaggeration, and radical departures from the topic of the thread. Sticking with substance -- and staying on-topic -- will make the comments more helpful to other readers, and more pleasant.
As editors, we reserve the right to delete posts, and even to kick out posters, though we hope that both of these will be exceptional events. (We also reserve the right to be busy with other things, and therefore (1) not remove all the posts that might merit removal, and (2) ignore demands such as "You should remove A's posts, because they're just as bad as B's!")
Here's a tip: Reread your post, and think of what people would think if you said this over dinner. If you think people would view you as a crank, a blowhard, or as someone who vastly overdoes it on the hyperbole, rewrite your post before hitting enter.
And if you think this is the other people's fault -- you're one of the few who sees the world clearly, but fools wrongly view you as a crank, a blowhard, or as someone who overdoes it on the hyperbole -- then you should still rewrite your post before hitting enter. After all, if you're one of the few who sees the world clearly, then surely it's especially important that you frame your arguments in a way that is persuasive and as unalienating as possible, even to fools.
Our goal is to provide an interesting and pleasant environment that can help inform readers. To do that, we'll occasionally have to exercise our editorial discretion. Think of this as an in-person discussion group, where having different voices is critical to a great conversation -- but where sometimes the leader has to deal with cranks who sour the conversation more than they enliven it.
Naturally, there's always a risk that this discretion will be used erroneously, no matter how well-intentioned the editor. But discussion groups (especially on the Internet, but also off it) generally need an editor who'll occasionally make such judgments.
And, remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.