-Caveat Lector-
Begin forwarded message:
From: [EMAIL PROTECTED]
Date: March 21, 2007 2:46:19 PM PDT
To: [EMAIL PROTECTED]
Cc: [EMAIL PROTECTED], [EMAIL PROTECTED], [EMAIL PROTECTED]
Subject: Who Gets to Judge the Judges? Judicial Branch of
Government in Dire Need of Pruning
JUDICIAL INDEPENDENCE IN THE U.S.
By U.S. Supreme Court Associate Justice Stephen G. Breyer
http://usinfo.state.gov/dd/eng_democracy_dialogues/
independent_courts/courts_breyer.html
In the United States, judicial independence has developed into a
set of institutions that assure that judges decide according to
law, rather than according to their own whims or to the will of
others, including other branches of the government. The five
components of judicial independence are: the constitutional
protections that judges in the United States have; the independent
administration of the judiciary by the judiciary; judicial
disciplinary authority over the misconduct of judges; the manner in
which conflicts of interest are addressed; and the assurance of
effective judicial decisions.
These components combine to assure an independent judiciary that is
the basis for a society governed by the rule of law. Following is
an abridgment of Justice Breyer's remarks originally delivered at
the Conference of the Supreme Courts of the Americas, held in
Washington, D.C. in October 1995.
Judicial Independence in the U.S.
The primary basis of judicial independence in the United States is
the protection guaranteed to judges under Article III of the
Constitution, which creates the federal judiciary. Article III
provides that federal judges will "hold their Offices during good
Behavior," and that they will "receive for their Services, a
Compensation, which shall not be diminished during continuance in
Office." These provisions assure that Congress or the president
cannot directly affect the outcome of judicial proceedings by
threatening removal of judges or reduction of their salaries.
The protection against removal is constrained by the phrase "during
good Behavior," and that mechanism also applies to other office
holders in the federal government. Article II of the Constitution
provides that "civil Officers of the United States" -- and judges
are considered to be among these -- can "be removed from Office on
Impeachment for, and Conviction of, Treason, Bribery, or other high
Crimes and Misdemeanors."
Impeachment is a formal process of adjudication by the Congress,
that requires agreement by both houses. The House of
Representatives must present a charge to the Senate. The Senate
then tries the impeachment, and may only convict the impeached
officer, including a judge, acting by a majority of two-thirds.
The impeachment power has been used sparsely since the creation of
the judiciary, and used solely to remove judges for various forms
of personal misconduct.
In a landmark impeachment case in 1805, Congress came close to
impeaching Samuel Chase, a politically outspoken Supreme Court
justice, on the basis of allegations that his substantive decisions
were politically biased.
The impeachment failed, and established the tradition <sic> that
Congress cannot use its impeachment power to check the substantive
exercise of judicial power.
More recently, the impetus for the few instances in which judges
have been impeached arose out of and followed criminal prosecutions
of judges. Less dramatic instances of misconduct are addressed
within the judicial disciplinary system, which is administered by
the judiciary itself.
Control Over Procedure and Administrative Independence
The institutions that allow the judiciary to control the
environment in which judges do their work are a second factor of
judicial independence. This aspect is not always at the center of
considerations of judicial independence, but if one thinks about
how a working environment affects one's work, then one understands
that the question of who controls the context in which judges
decide cases matters a great deal to the idea of the independence
of the judiciary.
There are three primary institutional pillars on which U.S.
judicial administration is based. The first is the Judicial
Conference of the United States, which was created in 1922 as the
Conference of Senior Circuit Judges. It is composed of the Chief
Justice of the Supreme Court, the 13 chief judges of the circuits,
12 district court judges and the chief judge of the Court of
International Trade. The Judicial Conference is the national
policymaking body for the judiciary, and supervises the
Administrative Office of the U.S. Courts. Most important is the
role that the Judicial Conference plays in the rulemaking process.
The first and most central power that the Constitution leaves to
Congress, but whose administration Congress transferred to a
significant extent to the courts, is the power to set the rules of
procedure in court cases.
In the Rules Enabling Act, Congress empowered the judiciary to set
its own rules of criminal and civil procedure, and since the
promulgation of the Federal Rules of Civil Procedure in 1938, the
Supreme Court (and lower courts in the case of local rules) has
controlled the majority of procedural rules in federal courts. The
rulemaking process, although independent of Congress, is not a
cloistered affair sheltered from public responsibility. The rules
are developed by advisory committees that specialize in civil,
criminal, bankruptcy, appellate and evidence rules. These
committees, composed of a broad cross-section of the participants
in the legal process -- judges, the Department of Justice, law
professors, and members of the criminal and civil bar who represent
both plaintiffs and defendants -- propose rules, subject them to
public comment, and submit them to the Standing Committee on Rules
of Practice and Procedure, which in turn submits them to the
Judicial Conference, which recommends them to the Supreme Court for
approval. Once the Supreme Court promulgates a rule, it is sent to
Congress and becomes effective unless Congress affirmatively
rejects it within a statutorily prescribed time. (Rules of
Evidence, however, which are considered substantive rather than
procedural, are proposed by the judiciary but must be passed as
acts of Congress.) The power over the procedural environment in
which cases are heard and decisions are rendered is probably the
power that is nearest the core of institutional judicial independence.
In addition to the Judicial Conference, there are two additional
institutional components of judicial independence that were created
by Congress in 1939: the Administrative Office of the U.S. Courts
and the Circuit Judicial Councils. The first of these addresses the
need for centralization of judicial administration; the second, the
need for local control by judges over the environment in which they
work. The Administrative Office of the U.S. Courts is a body of
professional administrators subject to the direction of the
Judicial Conference, which administers the federal court budget,
personnel management, procurement, and other housekeeping and
support functions. The 13 Circuit Judicial Councils are composed of
the chief judges and an equal number of circuit and district
judges. The Councils have two major duties. First, they provide the
administrative oversight body for the circuit by overseeing the
promulgation and efficacy of local rules, reviewing and supporting
requests by the districts for new judgeships, and approving
district court plans for the administration of juries and trials.
Second, the Judicial Councils have the primary responsibility in
the judiciary's disciplinary system.
Another independent but centralized institution of the judiciary is
the Federal Judicial Center, created by Congress in 1967. The
Federal Judicial Center is headed by the Chief Justice and is
composed of six judges selected by the Judicial Conference and the
director of the Administrative Office. The Federal Judicial Center
has the responsibility to conduct research into judicial
administration and issues relevant to the administration of
justice, as well as to propose and prepare educational programs for
federal judges.
Judicial Discipline
Because judges have life-tenure protection, and because the only
power of removal open to Congress is the impeachment process, the
authority to discipline judges for transgressions that do not arise
from personal misconduct warranting impeachment was for a very long
time unclear.
For many years, the limited use Congress made of the impeachment
power left a gap in the institutional fabric overseeing judicial
misconduct. During these years, peer pressure among judges was the
primary source of control, and generally the small size and
relative cohesiveness of the federal judiciary was sufficient.
When Congress created the Circuit Judicial Councils in 1939, it was
not at all clear that they had actual disciplinary power.
In 1973, the judiciary passed the Code of Conduct for U.S. Judges,
but a disciplinary system was officially instituted and
rationalized only later, by the Judicial Councils Reform and
Judicial Conduct and Disability Act of 1980, in which Congress gave
the federal judiciary a charter to devise its own self-disciplinary
framework.
Under the act, any person may file a complaint that a federal judge
"has engaged in conduct prejudicial to the effective and
expeditious administration of the business of the courts or ... is
unable to discharge all the duties of office by reason of mental or
physical disability."
Since 1990, the chief judge may also act without formal filing of a
complaint upon obtaining information that suggests that action is
appropriate. After considering a complaint, the chief judge may
dismiss it by a written order stating reasons, if it does not
comply with the act's requirements, if it is directly related to
the merits or substantive decision in a case, or if it is
frivolous. The chief judge may also conclude a proceeding if
intervening facts -- either with respect to the misconduct or with
respect to appropriate corrective action -- have resolved the
subject matter of the complaint.
If the chief judge does not dismiss the complaint, he or she must
appoint a special committee to investigate the complaint and file a
written report with the Circuit Judicial Council, and the council
itself may conduct additional investigation. For example, the
Judicial Council may request that a judge retire, impose a freeze
on assignment of cases to the judge, or issue a private or public
reprimand. The act explicitly does not allow the Judicial Council
to remove a judge from office, however. Removal remains possible
only upon impeachment.
Conflicts of Interest
The fourth aspect of judicial independence is the importance of
self-control and avoidance of prejudice. Each individual judge,
more than any council or committee, is in the best position to
assure that he or she does not decide a case in which he or she may
be influenced by considerations other than the law.
Congress has imposed on judges a statutory duty to disqualify
themselves from sitting in a case in which their impartiality may
be questioned. Judges have an affirmative duty to investigate and
find out whether they or their family members have a financial
interest in the case before them. A judge must recuse if he or she
has been involved in a case either by having private knowledge of
the facts, by having acted as a private attorney or in any capacity
for the government in the case, or by having worked with a material
witness in the case.
To help in this process of self-reflection and recusal, as well as
to provide some basis for oversight of the decisions judges make,
Congress has imposed rules that regulate and require financial
disclosure of any outside employment, earned income, activities,
gifts, and honoraria that judges may receive. These requirements
facilitate both awareness and accountability. The rules of recusal,
and the degree to which judges conscientiously follow them to avoid
conflicts of interest and prejudice, are central to assuring the
independence of judgment, as well as to assuring the perception of
the integrity of the judiciary in the eyes of the public.
Assuring the Efficacy of Judicial Decisions
The most independent of judges, reaching the most impartial of
conclusions, will nevertheless be irrelevant to assuring a
government of laws if government agencies that courts order to act
in a particular manner refuse to do so, or if people do not pay the
damages they are instructed to pay. An orderly society, enforcement
mechanisms, and a habit of obedience to courts are essential
elements of a system in which judicial independence is effective.
The most vexing questions with respect to compliance do not usually
arise where the parties in front of a judge are private
individuals. When a judge issues an order to an individual, the
power of the state is cohesive behind the judgment, and an
individual who resists likely will be facing police officers who
enforce the court order.
A more complex problem arises when the addressee of an order is the
government, and the government refuses to comply. Refusal to comply
would be more likely if court orders were general, and were
directed at institutions rather than individuals. The tradition in
the United States, however, is that orders are issued to
individuals. Thus, for example, if a court finds that a person did
not receive a fair trial and must be released from prison, a court
order on a petition for habeas corpus usually will not be issued
against the state, or against the state's prison system. Rather, it
will be issued against an individual, usually the prison warden or
the director of a state's correctional system. This places the
individual who has power to act in the name of the state in the
uncomfortable position of having a court order directed at himself
or herself, and creates the potential that, should the official
fail to comply, the court will issue a contempt order, imposing a
personal fine or even incarceration pending compliance. It is much
more difficult for an individual to risk resistance to a court
order than for the state to do so.
The most extreme cases of organized opposition on the part of state
officials to orders from federal judges occurred in the late 1950s
and early 1960s, when some states refused to obey orders from
federal judges to desegregate educational institutions, buses, and
restaurants. For example, when the state of Arkansas refused to
desegregate its primary schools, the Supreme Court decision in the
case, Cooper v. Aaron, reiterated that courts must be obeyed and
that the desegregation order must be enforced. Following the
decision, President Eisenhower sent the National Guard to Little
Rock, Arkansas, to enforce the Court's ruling. The threat, no
matter how remote and rare, that the federal executive will use
force to support the federal judiciary remains a powerful
background when federal judges order states to act in a particular
way. It is not quite as pronounced, of course, when the orders are
directed to federal officials, although the threat that federal
marshals will knock on the door of any individual official
specifically identified in a court order remains quite real.
Beyond all of the institutional assurances of compliance, however,
the most important reason to think that a judge's decision will be
efficacious is cultural, rather than institutional. An orderly
society, in which people follow the rulings of courts as a matter
of course, and in which resistance to a valid court order is
considered unacceptable, is the core assurance that if cases are
heard by impartial judges, who are free from the influences of
politics, and who decide independently according to law, then the
people subject to court orders will also behave according to law.
George Washington claimed that "the true administration of justice
is the firmest pillar of good government," while Alexander
Hamilton, in Federalist Paper No. 17, maintained that "the ordinary
administration of criminal and civil justice ... contributes, more
than any other circumstance, to impressing upon the minds of the
people affection, esteem, and reverence toward the government."
The good that proper adjudication can do for the justice and
stability of a country is only attainable, however, if judges
actually decide according to law, and are perceived by everyone
around them to be deciding according to law, rather than according
to their own whim or in compliance with the will of powerful
political actors.
Judicial independence provides the organizing concept within which
we think about and develop those institutional assurances that
allow judges to fulfill this important social role.
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