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Interview: Role Changes For Judicial Conduct Committee
Judge Ralph K. Winter was appointed to the U.S. Court of Appeals
for the Second Circuit in 1981 and served as chief judge from 1997 to
2000. He also has served as a member of the Executive Committee of the
Judicial Conference, and as the Committee’s chair from 1999 until he
assumed senior status in September, 2000. Winter has chaired the
Judicial Conference Committee on Judicial Conduct and Disability since
the function of your Committee changed in light of the report of the
Judicial Conduct and Disability Act Study Committee, the so-called
Breyer Committee Report?
Before the Breyer Committee issued its report, the function of the
Committee on Judicial Conduct and Disability was in the main limited to
deciding petitions for review of judicial council actions taken under
the Judicial Conduct and Disability Act of 1980. There was no systematic
effort by the Conduct Committee to collect information regarding
implementation of the Act by chief circuit judges and judicial councils
or to guide them in interpreting the Act. Indeed, the Breyer Committee
Report accurately referred to the Conduct Committee as the “Review
The Breyer Committee recommended that the Conduct
Committee become more active in a number of areas, including the
provision of advice to chief circuit judges and judicial councils with
regard to issues arising under the Act, periodic monitoring of the
administration of the Act, and the creation and maintenance of resources
such as educational programs and a compendium of precedents to aid
those implementing the Act.
As a result, the Conduct Committee has begun to meet more
often and to address numerous policy issues arising from both the Act
and the Breyer Committee’s report and recommendations.
Judicial Conference asked your Committee to consider and make
recommendations as to implementation of the reforms suggested by the
Breyer Committee. How has your Committee proceeded with this directive?
Conduct Committee has taken steps to implement various recommendations
in the areas mentioned in the answer to your first question. In
particular, the Conduct Committee concluded that achievement of the
Breyer Committee’s reform goals required the drafting and promulgation
by the Judicial Conference of rules governing proceedings undertaken
pursuant to the Act. The Breyer Committee noted complaints from chief
circuit judges that in many critical areas the Act provided little
guidance as to the disposition of complaints filed under the Act and as
to when chief circuit judges were themselves required to initiate
complaints. Indeed, the Breyer Committee itself found it necessary to
formulate substantive guidelines, found in Appendix E to its Report, in
order to assess the Act’s implementation in the quarter century since
its passage. Also, issues had arisen as to the scope of the Judicial
Conference’s—and the Conduct Committee’s—jurisdiction over matters in
which chief circuit judges had not appointed special investigating
committees and even over the authority of the Judicial Conference to
review decisions by the review committee. Finally, monitoring
administration of the Act was difficult because of the lack of
information regarding the filing of complaints and the disposition of
them. The existence of these issues lead the committee to conclude, as I
noted above, that a need existed for a set of mandatory and clarifying
rules establishing jurisdiction over and venue for complaints and
petitions for review, substantive standards to guide decisions on the
merits of complaints, standards for chief circuit judges to initiate
complaints, responsibility for credibility decisions, information
sharing provisions, and procedural rules for proceedings under the Act.
Q: Is there a timeline for implementation of the Breyer Committee’s recommendations?
of the recommendations of the Breyer Committee have either been
implemented, are in the final stages of implementation, or will be
implemented upon promulgation of the rules previously described. A draft
of those rules is presently the subject of a 90-day public comment
period, with a public hearing to be held in New York City on September
27, 2007. After the public comment period, another draft of the rules
will be sent to the Judicial Conference with a recommendation for
promulgation at its March, 2008 meeting. Informational and educational
programs for judges and staff regarding the rules will be established
after their promulgation.
people familiar with the Act’s complaint procedure believe that it has
lead to a vast number of complaints by litigants—mostly pro se
litigants—who are simply dissatisfied with the merits of decisions
rendered against them. Others, however, believe that instances of
misconduct not involving the merits of decisions or disability have gone
unremedied. Do these views reflect a fundamentally flawed system?
It is simply a matter of fact that hundreds of misconduct or disability
complaints are filed every year that do not on their face allege
cognizable misconduct or the existence of a disability. Of these, many
assert as their sole complaint error in a judicial decision, a matter
expressly excluded from the Act’s purview. Federal judges render
thousands of decisions every year in which roughly 50 percent of
litigants go away deeply disappointed. Any misconduct or disability
procedure will inevitably invite a large number of complaints reflecting
those disappointments, which will often manifest themselves as
suspicions or accusations of corruption or disability. And any such
procedure will also produce an irreducible number of controversial
decisions even where procedural regularity has been observed and correct
standards have been applied. In my view, therefore, the existence of a
large number of meritless complaints, and some controversial decisions
are unavoidable and not evidence of a fundamentally flawed system.
However, the Breyer Committee did find that a relatively
small number of complaints with arguable merit have been resolved in a
way that the Breyer Committee deemed to be “problematic.” Some of those
cases were the result of a misunderstanding of the Act’s provisions.
Others were good faith decisions where the merits were reasonably in
dispute. It is the Conduct Committee’s hope that the new rules will
eliminate cases of misunderstanding and reduce the number of
“problematic” decisions to a small category of cases in which reasonable
people may disagree. It is, of course, not possible to eliminate all
cases in which a reasonable disagreement might exist. However, we must
be vigilant as to the observance of procedural regularity and the use of
correct standards if we are to maintain public confidence in the
duty to apply the Act’s provisions falls on chief circuit judges and
judicial councils. To what extent will the rules help them in this
am very hopeful that the rules will provide much needed clarification
and direction to chief circuit judges and judicial councils in carrying
out their responsibilities under the Act. However, clarification and
direction are helpful but not self-executing. The Act establishes a
self-regulatory system that is essential to the maintenance of judicial
independence. But, by its very nature, a self-regulatory system imposes
great responsibilities on the persons within the system who must enforce
the regulations—in this case, chief circuit judges and judicial
councils. No amount of clarification can relieve them from occasionally
having to take very awkward and personally disagreeable actions in the
course of carrying out those responsibilities. Indeed, based on the
Breyer Committee’s findings, the new rules should in all probability
result in a slightly more frequent appointment of special committees and
initiation of complaints by chief circuit judges. But, to repeat, such
actions are necessary to the maintenance of judicial independence, which
the Act furthers by leaving resolution of misconduct and disability
issues raised in the case of individual judges to the Judiciary itself.
have been the chief judge of a circuit, chair of the Executive
Committee of the Judicial Conference, and a federal judge for over 25
years. In your view, what is the public perception of the federal
Judiciary and has it changed over the years you have been on the bench?
think that the public perception of the federal Judiciary has been, and
remains, quite favorable, although complacency is hardly justified.
There is evidence of public dissatisfaction with the courts in a number
of legislative actions over the past quarter century that have
purposefully reduced the power of federal courts in various areas. Among
these areas have been (most notably) criminal sentencing, speedy
trials, the circumstances in which the writ of habeas corpus may be
granted, administrative actions in immigration proceedings, and prison
reform. Other attempts to limit judicial power have drawn significant
support but failed to pass. Notable among these was the original version
of the Civil Justice Reform Act. In addition, private parties appear to
have increasingly left their business disputes to arbitration, removing
from the courts a substantial amount of commercial litigation that was
once at the heart of judicial business.
As I said, these actions evidence some continuing measure of
discomfort with the areas of discretion left to judges. To some extent,
this discomfort has driven the concern over misconduct and disability
proceedings and, to some extent, the “problematic” decisions in such
proceedings found by the Breyer Committee has generated the discomfort.
It is to be hoped that the draft rules described previously will lessen
the mutual reinforcement of that discomfort.
To view and comment on the draft Rules Governing Judicial Conduct and Disability Proceedings, visit http://www.uscourts.gov/library/judicialmisconduct/commentonrules.html.