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House Judiciary Committee Passes IG Bill
The Judicial Conference has taken action to allay concerns about judges’
financial conflicts of interest, attendance at educational seminars and the
proper investigation of judicial misconduct. Last month, however, the House
Judiciary Committee, chaired by Representative F. James Sensenbrenner, signaled
they’d like to go further.
Before adjourning until mid-November, the House Judiciary Committee acted on
H.R. 5219, the Judicial Transparency and Ethics Enhancement Act of 2006, a bill
that would establish an Inspector General within the judicial branch. 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. The Committee
passed the bill, voting 20-6 along party lines. A number of Democrats and
Republicans on the 39-member committee were not present.
The original bill was amended in committee to provide term limits for the IG;
to allow the Chief Justice to remove the IG, provided he communicates the
reasons to Congress; to change the scope of permissible investigations; to
restrict a misconduct investigation until there has been a denial of a petition
by the judicial council or upon referral to the Judicial Conference; and to
prohibit investigations “directly related to the merits or a decision by a judge
or court.” These modifications are insufficient to allay the objections to the
bill established by the Conference and the Judiciary remains opposed to H.R.
5219 and any other legislation creating an IG.
In a speech at a Georgetown University Law School conference on the state of
the Judiciary, Chief Justice John G. Roberts Jr. described bills such as H. R.
5219 as “dangerous intrusions by other branches.” The Judicial Conference has
called the creation of an IG for the Judiciary “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.” An IG would, according to the Conference, “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 prospects for the bill this Congress are uncertain, as both the full
House and Senate would have to act on the bill for it to become law, and only a
brief lame-duck session of Congress remains before all bills expire on January
The Administrative Office already has statutory responsibility to conduct
audits of the courts. Each year, over 100 financial and administrative audits
are conducted of Judiciary funds, financial activities, operations and
systems—all in accordance with government audit standards. Approximately 30
percent of all court units receive a financial audit annually. In addition, the
Judiciary has had a formal program since 1988, approved and supervised by the
Judicial Conference, addressing allegations of waste, fraud and abuse.
At its September 2006 meeting, the Judicial Conference also implemented
several policies aimed at aiding and enhancing judges’ compliance with
established ethical obligations. (See cover story on the Judicial Conference.)