No, because they don't have the tools. The ability to effectively police any large group of individuals is dependent on the power to impose serious sanctions for violations of rules of behavior. The federal judiciary does not have the power to impose serious sanctions on its own members under the Constitution. Only Congress has that power. The blame for blatantly unethical, unqualified, or criminal judges who remain on the bench falls entirely on Congress.
They pretty much have to police themselves, just like Congress basically has to police its members and the executive branch has to police its members. There's some overlap (e.g. impeachment proceedings) but each branch has a primary responsibility for internal policing.
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.
Cornellian, I don't really think those analogies are apt. In the case of Congress, direct political pressure can be put on scumbags to get them ousted the next time they're up for re-election. For urgent cases, Congress itself has the power of impeachment. In other words, Congress has more tools available to deal with miscreants. In the case of the executive, almost all the officials within it serve at the pleasure of the President. Thus, it is reasonable to expect the President to be responsible for the conduct of executive branch officials, since their continuance in office ultimately depends on his judgment.
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.
Can they? Yes. Can they effectively? Probably not. Should they? No.
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.
Sounds like the question of impeachment ought to be revisited here?
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.
Not an original point from me, but worth repeating from the WSJ commentary: What ever happened to the constitutional provision that judges serve during "good behavior"? Why has this come to mean "for life without oversight"?
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.
What is really unusual about this case is that the Appellate Court pointed out malfeasance committed in the course of the District Judge's judicial duties. I suspect that is because there is a much more attenuated relationship between the Federal Circuit, which sits in D.C., and the various District Courts from all over the Country from which the Fed Circuit draws its cases. In the usual case -- i.e., one of the numbered circuits. drawing its cases from District Courts within the same circuit, my experience has been that the Appeals Court Hudges are much closer to the District Court Judges within their own circuit, there is a continuing social interaction, and the District Judges may well have sat by designation on a panel of the Circuit Court (that is very common on those circuits which are understaffed by reason of vacancies which haven't been filled because of political delays in the Senate). As a result, the Appeals Court Judges are much more likely to downplay things like the District Court doing really crazy things at the trial level. I've had direct experience with Fifth Circuit panels bending over backwards, even ignoring their own controlling en banc precedent, to avoid embarassing one of their own. And it's literally impossible to file a judicial grievance for conduct during the course of a District Judge's judicial duties. My view is that the judiciary is institutionally incapable of self-policing.
This court considers a transfer request with great caution, and, in the absence of personal bias, would grant such a request only in "unusual circumstances." Davis &Cox v. Summa Corp., 751 F.2d 1507, 1523 (9th Cir. 1985). This court understands that a transfer may require a new judge to learn material and thus may occasion some duplicative judicial effort. At the same time, this court must recognize that a pattern of error based on previously-expressed views or findings may make it difficult for a trial court to approach a remanded case with an open mind. After a thorough review of all the evidence, testimony, and facts of this case, this court concludes the strongly expressed convictions of the trial court in this case may not be easily and objectively reconsidered. Accordingly, this court remands with instructions to reassign this case. See 28 U.S.C. § 2106; Liteky v. U.S., 510 U.S. 540, 554 (1994). See also Group One, Ltd. v. Hallmark Cards, Inc., 407 F.3d 1297 (Fed. Cir. 2005); Juicy Whip, Inc. v. Orange Bang, Inc., 382 F.3d 1367 (Fed. Cir. 2004). Thus, this court remands to the Chief Judge of the United States District Court for the District of Arizona to determine the reassignment of this case.
I note though that Judge Real appears to be in the Central District of California, instead of in Arizona. There may be more to the story as how he was trying a case there. Anyone know?
Working in this area of the law (patents), I was not surprised that the Judge got it wrong. Many of them do. But this Judge seemed to have almost intentionally done so. A former clerk of his, over at the WSJ blog, said:
Having clerked for the Judge in question I can say that he perhaps more than any other judge I have been in front of in almost 20 years of practice tries to do the right thing. That he stands up to certain powerful Circuit Judges who don’t like his attitude and that the GOP wanted to make an example of the judiciary in the elections and forced a meaningless impeachment inquiry (much like impeaching Clinton, the action embarasses and belittles the actors more than Clinton or Judge Real) juts shows he’s doing the right thing. He’s been an AUSA, US Attorney, and federal district judge in the busiest federal district court for over 40 years, including a long tenure as Chief Judge. Get the facts before piling on in ignorance.
I frankly don't think that ignoring voluminous patent law cases is doing the right thing, esp. when it means awarding the "Evil Empire" attorneys' fees for an "exceptional case".
With all due respect to Judge Real’s former law clerk, that’s a pile of crap. Anyone who has ever practiced in Judge Real’s courtroom knows that he could not care less about reaching the right result. He’s a tyrant.
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.
One of the posters at the patentlyo.com blog figured that the oral arguments would be interesting, given the Judge involved. The panel did try to figure out why Judge Real was sitting in Arizona. Counsel wasn't exactly clear, but it appeared to have something to do with the original judge becoming unwell and the District being grossly overworked.
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.
There was also an instance of a district court judge in Caliofrnia, and I think it was Judge Real again, showing sexual favoritism towards a particular litigant.
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.
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.
Interesting minor factoid: this is at least the third time a D.C.-based appellate court has removed the District Judge hearing a case involving Microsoft. The D.C. Circuit did it twice in the antitrust cases against Microsoft in the 1990s, with Judges Sporkin and Jackson. Happened again here with the Federal Circuit. The big difference, of course, is that this time Judge Real's improper conduct favored the Evil Empire.
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.
This is the Achilles heel of the federal court system- the lack of control over judges. Most of them play nice, and competently apply the law. But every legal community in the US can point you to one or two local federal judges who are known for abusive conduct. Judge Real is in a neck-and-neck race with Samuel B. Kent of Galveston for "worst federal judge in the country." Diver Dan's comment about the 5th Circuit reminded me of the many times they gave his decisions less of a hard rap than they should have, and makes you wonder whether if they had been more forceful early on he might not have gotten more and more arrogant.
In theory, the appointment and confirmation process should prevent a particularly loathsome person from getting on to the federal bench in the first place. The evaluation of character takes place up front, rather than throughout the judge's tenure.
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.
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.
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.
I personally see big changes coming, eventually, to the federal judiciary due to terminal hubris.
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.
What about all the little litigants who are unfairly losing all the time because they don't have the clout to get bad judges disciplined?
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.
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.