Vol. 36, Number 7—July 2004

I N T E R V I E W

A Law Professor's Watch on Judicial Accountability and Independence

Stephen B. Burbank is the David Berger Professor for the Administration of Justice at the University of Pennsylvania. He chairs the American Judicature Society's Judicial Independence and Accountability Task Force.

Q: How did you first become interested in issues of judicial tenure and accountability?

A:   Early in my academic career, the then-chief judge of the Court of  Appeals for the Third Circuit, Collins Seitz, asked me to help draft rules to implement legislation that had recently been enacted—the Judicial Councils Reform and  Judicial Conduct and Disability Act of 1980. I recruited a co-reporter, and, working with a committee of judges, we drafted rules that were implemented by the Third Circuit. That experience led me to write a law review article on rule-making under the 1980 Act more generally, and that led to consultations with committees of the Judicial Conference and to testimony before a House Subcommittee conducting oversight hearings.

A few years later, the sudden rash of judicial impeachments brought forth a number of proposed statutes and constitutional amendments designed to ease the burdens of removing judges who had been convicted of crimes. I testified against those proposals, and in 1988 I published an article exploring alternatives to impeachment and urging the creation of a National Commission on Judicial Discipline and Removal to study the issues. To my great surprise, legislation creating such a commission was enacted, and to my utter astonishment, the Speaker of the House selected me as a member.

Q: What are your recollections of the Commission and your impression of its report? Are the Commission's findings still valid?

A:   Our chair, former Representative Robert Kastenmeier (D-Wis.), was a superb leader. He was informed, thoughtful, and fair. I only wish there were more like him in the House of Representatives today. The co-chair, Judge Jay Plager, was a former academic and dean who brought to the enterprise both experience in conducting, and an appetite for, empirical research. In Judge Levin Campbell, the federal Judiciary was also represented by one of the most intelligent, thoughtful, and considerate people it has been my privilege to call a colleague.

Judge Plager and I led the Commission's research program and, particularly given the time and funding restraints, I think it is not immodest to say that it was an impressive effort, one that deployed multiple social science methods to address a host of carefully formulated questions. The quality of that research effort, in turn, helped to create a report of which I continue to be proud a decade later. Another contributing factor to that result, I think, was our decision that commissioners themselves rather than staff would write the report. And we wrote most of it.

As to whether the Commission's findings are still valid, many of those addressed to the Judiciary are now irrelevant because the Judiciary promptly, thoroughly, and I believe, fairly considered the Commission's report and adopted most of our recommendations. Unfortunately, the other branches did not act with comparable vigor, although the recent amendments to the 1980 Act do include a number recommended by the Commission. I believe it is likely that the work of the [Judicial Conduct and Disability Act Study] Committee that Chief Justice Rehnquist recently appointed, chaired by Justice Breyer, will tell us whether the Commission's qualitative conclusions about the Judiciary's implementation of the 1980 Act remain accurate 10 to 12 years later.

Q: Why is impeachment the only means of removing federal judges from office? Are impeachment proceedings workable in modern day?

A:   I think it was Hamilton who said in the Federalist Papers that having impeachment as the sole means of removal was the only system that was consistent with the quantum of independence desired by the Framers for federal judges. The Framers, of course, were aware of other mechanisms like legislative address, and they thought that such means of removing federal judges would or could lead to entirely too much control and intimidation of judges. Notwithstanding some arguments to the contrary, the Commission concluded that impeachment is in fact the only constitutionally permissible means of removal.

But you asked if impeachment is workable, and that certainly was one of the concerns that prompted the proposals in the late 1980s that the Commission examined. We concluded that steps could be taken by both the House of Representatives and the Senate to make the process of impeachment more efficient, with due regard for the legitimate interests of the respondent and the interests of society.

Q: The Judiciary compiles statistics on complaint disposition in the federal courts. How would you account for the small percentage of complaints against judges that are formally investigated?  Did the Commission look into this?

A:   I myself have not looked at those statistics for a number of years, but I would be surprised if their general tenor had changed much since I did give them close attention —and the Commission gave them very close attention. I think the explanation is likely to be today, as it seems to have been then, that many complainants simply do not understand or accept that the 1980 Act is not a substitute for appeal, which would account for probably almost all of the dismissals on the ground that a complaint is directly related to the merits of a decision or procedural rulings.

Others do not understand or accept that adverse rulings usually do not represent bias on the part of the judge, let alone some vast conspiracy, which would account for many of the dismissals on the ground that the complaint is frivolous. Still others do not understand that the substantive ambit of the 1980 Act is limited to conduct that is prejudicial to the expeditious administration of the business of the courts.

That said, the challenge for an overburdened federal Judiciary, and in particular for overburdened chief judges, is to try to make the reasons for the dismissals transparent to the complainant. One of the findings of the limited but interesting follow-up study to the work of the Commission that was done by the Federal Judicial Center in 2002 is that in a few circuits chief judges dismissing complaints have used pro forma orders that don't really tell the complainant anything.

Q: There was the 1980 Act, then the Commission, and now a Committee on judicial conduct. Why do we keep revisiting this question of judicial accountability?

A:  Judicial accountability is important. At the same time, it is also true that some people who make an issue of judicial accountability do not pay attention to work that has already been done. A few years after the Commission issued its report, I was asked to testify concerning proposed legislation, one provision of which would have required that complaints be considered by judges of other circuits. In my testimony I pointed out that provision was quite inconsistent with one of the major findings of the Commission, which was that the value of the 1980 Act lies as much in the informal processes it enables as in the formal processes it prescribes. Those informal processes would not work as well, if they would work at all, in a situation where the attempt to resolve a complaint informally was made by a chief judge from another circuit. In response to that, a member of the subcommittee before which I was testifying said, "You mean there's been a study on this question, and we're not aware of it?" I said, "It appears so." He said, "Shame on us."

More recently, following the appointment of the [Judicial Conduct and Disability Act Study] Committee by Chief Justice Rehnquist, the committee that is chaired by Justice Breyer, a number of papers, in editorials and op-ed pieces, have manifested what I can only characterize as a woeful ignorance both of the statement issued by Chief Justice Rehnquist in setting up the committee and of the work of the National Commission. One only had to read Chief Justice Rehnquist's statement to understand that the recusal practices of the justices of the Supreme Court were not within the mandate of the committee. Moreover, one only had to know a little bit about Chief Justice Rehnquist to understand that he would never appoint a committee, a majority of whose members are not sitting members of the Supreme Court, to study the practices of the members of the Supreme Court.

You started by asking, "why do we recreate the wheel?"  Well, we recreate the wheel in part because people who should know better are not aware of work that has already been done in the area.

Q: You have written on the relationship between the judicial and legislative branches. What is your assessment of that relationship today? 

I have been impressed by an article that was written by a very thoughtful colleague, Peter Shane, in which he talks about the degradation of politics more generally. My view—very much affected by this work of Shane—is that this is a manifestation of a much broader phenomenon, which he evidences by a series of situations in which one branch or the other has played confrontational, self-interested politics, at the expense of other branches and in disregard of traditions of comity.