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June 2010

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This article is in the news archives --- for current news go to the Third Branch News.


An Interview with Judge John Walker

Judicial Accountability, Judicial Independence

Judge John M. Walker (2nd Cir.)

Judge John M. Walker (2nd Cir.)

Judge John M. Walker Jr. was named chair of the Judicial Conference Committee on Judicial Conduct and Disability in 2008. He was appointed to the U.S. District Court for the Southern District of New York in 1985, and elevated to the U.S. Court of Appeals for the Second Circuit in 1989. He served as chief judge of the circuit from 2000–2006.

What is the role of the Committee on Judicial Conduct and Disability?

The Judicial Conduct and Disability Committee participates, with the judicial councils, in the administration of the Judicial Conduct and Disability Act of 1980. It is that Act which provides for the disciplinary mechanisms that exist in the federal Judiciary. Disciplinary matters are primarily the responsibility of the circuit chief judges and the judicial council. A finding of misconduct can only occur if the conduct is “prejudicial to the effective and expeditious administration of the business of the courts.”

Our committee essentially has two broad functions: Upon a complaintant’s request, we review specific cases and we monitor the implementation of the Act. We review the work of the councils in situations where they have acted upon the recommendation of a special committee that has investigated a case upon a complaint referred to it by the chief judge. Also, under the Rules that were promulgated in 2008, we can review, in limited circumstances, a complaint that was not referred to a special committee but was instead dismissed or concluded by a chief circuit judge in a decision later upheld by a council order. This type of review, in which we consider whether a special committee should be appointed, can be requested by a complainant if the council’s order came with a dissent in which a council member opined that such an appointment should have been made.

We also monitor the work of the chief judges and the judicial councils and provide advice when appropriate. But it is not the job of the Committee to interfere with or control the activities of the councils beyond our limited review function.

Finally, I want to add that in the exceedingly rare case that the issue is removal from office, the Constitutional impeachment authority rests solely with the Congress which may, or may not, act upon the recommendation of the Judicial Conference depending on the circumstances. The Judiciary essentially has an advisory role in such a situation.

How are most misconduct or disability matters resolved within the Judiciary?

Many of the misconduct or disability matters, if they have any merit to them, can be resolved informally. Most do not have merit. They’re filed by litigants who are unhappy with the results of court adjudications and, rather than taking an appeal, or in conjunction with an appeal, they decide to file a complaint against the judge. The Act is not designed to address allegations of legal error that occurs within the court system. That’s what appeals are for.

Of the complaints that are filed, less than 5 percent—perhaps as few as 3 percent—raise any kind of legitimate issue. Of those within that small percentage that have some merit, we encourage informal resolution where appropriate. Many of these complaints or grievances against a particular judge may have to do with demeanor in court, or with excessive delay in rendering decisions. Problems like these may be solved by simply speaking to the judge. In one instance that I personally dealt with, litigants complained that a judge was falling asleep on the bench. It turned out that the judge’s medication was causing this to happen. This was resolved by an informal discussion with the judge. When the judge changed his medication, the problem went away. There was no need to invoke the full apparatus of an investigation by a special committee and then action by the judicial council, under those circumstances.

Let me make the more general point: This Committee and indeed the whole procedure for effectuating judicial accountability, must balance the need, on the one hand, to hold judges accountable for misconduct with the need, on the other, to ensure that judicial independence is not compromised. Our system of accountability has to be effective, but it has to be managed in a way that does not compromise judicial independence.

How would the process impinge on judicial independence?

In working with foreign judiciaries, I’ve seen firsthand how the problem of judicial accountability is managed in other countries. Very often it is done by an outside body, or even by the Ministry of Justice, which is wholly inappropriate because the Ministry of Justice is also a litigant in many cases before the court. One can easily see how their review of a judge’s conduct could be a direct threat to judicial independence. In some countries, the disciplinary apparatus has been invoked against judges who have simply decided cases against the government or otherwise rendered a result that was unpopular.

Turning to our system, if a judicial council decided to investigate complaints that were not worthy of investigation, or responded to complaints that were simply brought by disgruntled litigants, this action could chill or interfere with a judge’s independence in being able to make decisions on the bench, free from improper influences. Under no circumstances should the system in place for accountability compromise the ability of a judge to make a decision in good faith in fulfillment of his or her judicial function.

Do you think the process of judicial accountability has become more transparent to the public?

I think there’s quite a high level of transparency. The complaints that are filed result in orders disposing of the complaints, which are public documents. When a special committee is appointed and an investigation conducted, then that committee reports to the judicial council and the judicial council issues an order that is filed and is available to the public. So there is transparency when a matter is handled formally. When a complaint is resolved informally, that fact too is made public.

In March 2008, the Judicial Conference approved the first-ever nationwide set of rules for handling conduct and disability complaints against federal judges. Why were the rules needed, and how have they been received?

Some new rules were required as a result of recommendations of the Breyer Commission to the Judicial Conference of the United States to expand the monitoring function of the Committee on Judicial Conduct and Disability. There also was an expansion of the review authority of the Committee. So all of these matters required a rethinking of the ways in which we would operate under the Act. At that time, the Committee, under my predecessor, Judge Ralph Winter, felt that it was necessary to develop a thorough set of rules, given the new and expanded responsibilities of the Committee. The resulting rules were considered and promulgated by the Judicial Conference pursuant to its authority under the Act.

The new rules have been received well. They replaced the local rules and procedures that had governed circuit chief judges’ and judicial councils’ performance of their duties under the Act. Now the rules are explicit and the same everywhere. There is not only a clear text of the rules, but also useful commentary which provides examples and gives guidance to the judges who have responsibilities under the Act.

As a former chief judge of a circuit, can you talk about the challenges of dealing with judges who develop health problems that might affect their capacity to serve?

It is not a frequent occurrence. Many judges, understanding that, as they get older, their faculties will not be what they used to be, make provision for that. Some judges ask their law clerks to tell them when they should consider stepping down. Or they may ask their spouse or friends or loved ones. It is in the interest of the judge, as well as the public, not to serve if he or she is impaired by disability. Every judge I know cares about his or her reputation. On rare occasions, the chief judge may have to intervene in this sensitive area. The problem can usually be solved through informal communication.

A judge has lifetime appointment and many judges render extraordinary service well into their senior years. We have a judge on the Second Circuit, Bill Feinberg, who was our chief judge in the 1980s and whose mind is sharp as a tack. He’s rendering very valuable service. Another example is Milton Pollack, who served well into his mid-90s and performed remarkable service right to the end of his life.

Senior judges carry up to 20 percent of the workload of the Judiciary. They are essentially volunteers who continue working and assisting the Judiciary. But they continue working and assisting the Judiciary. Senior judges perform wonderful service both in terms of quality and quantity.

Does your Committee assist chief circuit judges and judicial councils in identifying and helping judges whose health may raise questions about their capacity to serve?

Certainly that’s part of our function. We’re available to advise and assist chief judges. I do get calls occasionally from chief judges with requests for advice on both misconduct and disability issues. We talk through the problem. I know that other members of my committee receive similar requests.

What is your Committee working on now?

We are developing some products to assist chief judges in performing their function. There will be a Best Practices Digest, which will offer situational advice to circuit chief judges who are confronted with instances of possible judicial misconduct and disability. We are also developing a Digest of Authorities, an on-line product that will be an organized set of primary sources, annotations, and other information helpful to the chief judge and the judicial councils who apply the Act.

We also are developing, as a service to the public, a set of instructions for the filing of complaints. The set we’re developing will be distributed to the judicial councils for posting on-line.

In addition, down the road, we will assemble, also for illustrative use, examples of a model set of orders that are frequently filed by councils. We want to bring to the attention of all of the chief judges the different practices within the different circuits so they can update and modify their own practices as they deem necessary.

It is the Judiciary’s goal to ensure that federal judges meet the highest ethical standards. How do we assure the public of that intent?

I believe the public can be reassured by everything the Judicial Conference has put into place, including the Codes of Conduct for United States Judges, the Codes of Conduct Committee, and the administrative processes under the Judicial Conduct and Disability Act. As I have said, the Committee on Judicial Conduct and Disability sits at the intersection of judicial accountability and judicial independence. We want to make sure that our disciplinary system holds judges accountable for misconduct, but at the same time does not interfere with judicial independence.