July 2006

House Bill Would Impose Inspector General on Judiciary

Citing “disturbing reports that a number of federal judges are continuing to violate ethical rules, or are engaging in judicial misconduct,” Representative Howard Coble (R-NC) opened a hearing last month on legislation that would establish an Inspector General within the judicial branch.

Under H.R. 5219, the Judicial Transparency and Ethics Enhancement Act of 2006, introduced by Representative F. James Sensenbrenner Jr. (R-WI), an independent Inspector General would be appointed by and report directly to the Chief Justice. The IG would conduct investigations of complaints of judicial misconduct, conduct and supervise audits, detect and prevent waste, fraud, and abuse, and recommend changes in laws or regulations governing the judicial branch.

Testifying at the hearing were Senator Charles E. Grassley (R-IA), Professor Ronald Rotunda of the George Mason University School of Law; Professor Arthur Hellman of the University of Pittsburgh School of Law; and Professor Charles Geyh of the Indiana University School of Law at Bloomington. The Judicial Conference was not invited to testify, but wrote to subcommittee members expressing its strong opposition to H.R. 5219.

It is the Conference’s position that H.R. 5219 and any other legislation creating an IG in the Judicial branch would “threaten the independence of judicial decision making, and has serious implications for the separation of powers. Rigorous and effective systems and mechanisms for audit, review, and investigation currently exist in the Judiciary, making the legislation duplicative, intrusive, and unnecessary.”

The Conference views the creation of an IG as “an entirely unnecessary and inappropriate imposition of control over the Judiciary that creates precedents for further erosion of the fundamental constitutional principle of separation of powers."

According to Grassley, who introduced a companion bill to H.R. 5219 in the Senate, ever since he chaired the Senate Judiciary Subcommittee on Administrative Oversight and the Courts in the early 1990s, concerns have been raised about compliance with the judicial ethics rules and whether the Judiciary can adequately police itself.

“I truly believe,” he said, “that an Inspector General is just the right kind of medicine that the federal Judiciary needs to ensure that it is complying with the ethics rules.... The Judiciary’s current self-policing system is just not up to snuff. There are too many questions about how conflicts and financial interests are reported and how recusal lists are compiled and kept up-to-date. There are too many questions as to whether the Judiciary’s current policy…is as effective as it can be. Transparency can only make the system better and make our judges more accountable to the people.”

Rotunda told the subcommittee that H.R. 5219 “offers modest reforms that will keep our Judiciary independent. . . and will help keep our Judiciary accountable. . .” He cited examples of IGs in federal agencies and questioned why it has taken so long to create an IG for the courts. “If the federal courts had an Inspector General,” said Rotunda, “we would have more openness and people could not assume that judges are above the law.”

Similarly, Hellman supported H.R. 5219, but suggested that it be made clear in the proposed statute that the IG would have no authority over the substance of judicial decisions. He also recommended that an IG’s responsibilities in misconduct proceedings would not begin until after the chief judge and the circuit judicial council have completed their work. Current law would be amended to authorize the Judicial Conference to review a council’s action in cases where the chief judge has dismissed the complaint and the council has denied review. The IG would carry out the necessary investigations. Hellman also proposed a change in title from Inspector General to the “slightly less overbearing” Special Council to the Judicial Conference and suggested that the Chief Justice might want to appoint a sitting judge to serve as the IG.

In his testimony, Geyh noted that while H.R. 5219 has a laudable goal in making the federal Judiciary better accountable for its budget and for the ethical transgressions of judges, the creation of an inspector general would be highly problematic.

“[I]nspector general investigations can and likely will be exploited to punish judges for their judicial decisions. . . thereby jeopardizing core judicial independence norms that Congress has respected for well over a century,” he said. He observed that while IGs are commonplace within executive branch agencies, the Judiciary is not an agency—it is an independent branch of government that lacks the powers at the executive branch’s disposal to resist Congressional intrusions into IG investigations.

“I think H.R. 5219 is a little bit troubling,” Geyh said in his oral testimony, “more troubling than the other witnesses find it, because it really represents a move away from this century-long tradition where we’ve entrenched norms enabling the Judiciary to regulate itself, and toward something else, in which we take regulatory power away from the Judiciary and hand it to an inspector general and, indirectly, we give it to Congress.”

Geyh urged Congress to wait for the results of the Judicial Conduct and Disability Act Study Committee, chaired by Justice Stephen Breyer, and then work cooperatively with the Judiciary to meet Congress’ remaining concerns.

“If the Judiciary is unwilling to reform itself in the teeth of evidence that further reform is necessary,” he said, “that may be the time to consider stronger medicine. But not now.”