this subcommittee hearing without objection the chair will be authorized to declare recess of the hearing and i will now recognize myself for a short statement i'd like to welcome everyone to the hearing today and offer my thanks to the panel members for being here with us i'm holding this hearing because the issue of judicial judicial misconduct particularly in the form of the failure of a judge to recuse him or herself in instances where there is a conflict of interest must be taken seriously and our federal judges go through an extensive this in the senate to make sure that they fit to hold a lifetime judicial appointment and i believe that most judges genuinely do their best to be fair and impartial in every case and appropriately recused themselves when there exist an actual bias or the appearance of bias as such congress should take care not to impose unnecessary or overly burdensome procedural or substantive burdens on our already overworked just their school system however the limited instances where judges do not re themselves when there is an apparent of bias creates a tension between the need for an independent judiciary and the need for some federal oversight to ensure that case is decided fairly there have been three recent cases which highlight the problems with judicial recusal the first is th business contacts with the united states government the court did not screw she's motion the eleventh circuit on appeal hill the screw shoes claim help no matter no merit however the court did not explain why the motion was denied this was a highly political case and it raises one of the concerns that i hope our witnesses will address today and that is  specifically explain why a motion for recusal was denied in another case georgia state senator charles walker a highly respected former newspaper publisher and entrepreneur  as well as the first african american chosen as senate majority leader in georgia was charged with mail fraud tax fraud and conspiracy regarding his prior publishing business the indictment filed against mr walker may have been based on politics instead of actual wrongdoing mr walker was also assigned a judge who had close ties to the principal competitor  mr walker's newspaper business mr walker did not submit a request that the judge recuse himself however app this trial he maintained that is defense counsel should have moved to disqualify the final recusal issue i want to talk about today is judge judy thomas porteous a district court judge who's currently on a consideration of impeachment by the impeachment several attorneys who appeared before him now the issue of whether judge porteous behaved improperly is still something which the task force is considering however th task force finds that judge porteous should have recused himself in those cases it certainly highlights the late jim it concerns hailed by many that judges might not be the best people to determine whether they should recuse themselves from a case so what should congress do clearly a balance must be maintained between the need for transparency in ju and the need for a judge's private life to be protected however the failure of a judge to recuse himself or herself when the outcome leads to a miscarriage of justice is one that must be taken very seriously there have been some suggested procedural reforms for judicial recusal laws one would be to allow appeals another would require judges to explain th disqualification decision and yet another would be to allow disqualification motions to be decided by other judges some states have already acted to amend their judicial recusal laws to allow for more transparency however the federal recusal laws could tenure to lag behind i look forward to the testimony from today's witnesses that will address whether reform to judicial recusal laws is right for review and if it is what steps congress can and should take to enact substantive and procedural reforms period we have a formidable panel from whom we will hear subsequently there's always mr chairman many inherent tension among the three right set of of our federal government the founders intended that no one branch would dominate the other two and that each rice would guard his own constitutional territory from encroach but this system of checks and balances has done a wondrous job as seems to be defending civil liberties promoting national security and expressing the popular will through a deliberative legislative process the inevitable byproduct of this construct is to to still tension especially when one bright quote checks close quote the other subcommittee respect the work of the judiciary even if we don't always agree with their work product in every instance and following the founders example we appreciate the importance of judicial independence article three j should be insulated from political pressure to render unbiased opinions and that's why they enjoy life tenure however this doesn't mean that federal judges are entitled to a free pass to the live we have a constitutional obligation responses when appropriate as a former court subcommittee chairman and a long time member of this house judiciary committee participated in previous oversight everest to review the state of judicial ethics at behavior much of this work home unaided and a rewriting of the judicial conduct and disability act of like daisy the statutory mechanism by which individuals may file complaints against federal weren't likely to recuse themselves from cases that lawyers were too frightened or uneasy to ask them to do so and if memory for the start part of the subcommittee is impeachment investigation of district judge many r during the hundred ninth congress involved a recusal issue no open minded little get in my opinion believes that he or she is entitled to win in federal court but  deserves to be treated fairly at minimum this means the presiding judge must be free of bastar prejudice toward any let it get if this isn't the case the judge i believe should step aside we have a balance the brilliance of over the place but still a bright line and i don't want to reduce this to simplistic terms old school versus new school or retrograde versus progress but goodness gracious here's a here's a problem begging for consideration and we have distinguished members of the court and teachers of law saying not known you guys this i mean accidents will happen you have to be so perfect about all this and here's a judge in alabama not a citizen in alabama a judge in alabama that goes up to the eleventh circuit and they say no no reason for denying the disqualification order why we don't choose to give you any reasons why you don't need to know why you're in a country the democratic society that's held up at the democrat the constitutional democracy that is written order well what about transparency or what we don't need to be we don't have to we federal jurist don't have to tell you why we ruled  do you know how how much clogging of the courts and how much backing up if judges have to explain everything they did go read the precedents check the law go back and take a refresher course but don't don't bother us with having to explain why governor of one of the several states can be denied relief without any explanation whatever that offends me and it's only a small part of the problem that brings us here today there are so many areas that that we need to reexamine not to help somebody or or put your thumb on the scale but just to bring this thing of simple justice home do you know the meaning and i conclude on that you know how many people in this country feel that they got really taken going through a court process that that the thing was against them from the beginning i know a lot i know i know enough to feel disturbed about this question of recusal that chairman johnson has put on the table this afternoon and i thank him for his efforts you're quite welcome mr chairman and thank you for your statement without objection other members opening statements will be included in the record now i'm pleased to introduce the witnesses for today's hearing has served since one thousand nine hundred eight judge mccook mckeown has published an spoken extensively on the topic of judicial ethics she is also the chair of the judicial conference of the united states code of conduct committee and we welcome her to this hearing as second witness is charles j who is the associate dean of research and the john f kimberly and chair in law at the indiana university mora school of law professor j also serves as a director and consultant of the american bar association judicial disqualification project and he is widely known for his scholarship in addressing the federal courts and judicial reviews of the laws a third welcome sir i third witnesses richard flamm mr flamm is an attorney specializing in judicial ethics and judicial recusal he's an expert in that area he wrote the leading treatis norman l reimer actually mr remark butchering everybody's name today i'm sorry mr iemma is the executive director of the national association of criminal defense lawyers which is an organization dedicated to ensuring justice and due process for all prior to serving in this position mr reiman practiced law for twenty at the university of pittsburgh school of law mr hellman is a dedicated scholar in the field of judicial ethics and has written several articles on the point he has testified before both  the house and senate judiciary committees on federal courts issues in assisted with the judicial improvements act of two thousand and two welcome professor thank you all for your willingness to come and participate in today's hearing without objection your written statements will be placed into the record and we would ask that you limit your oral remarks to five minutes you will note that we have a adding system that starts with a green light and after four minutes it turns yellow then red at five minutes after each witness is presented his or her testimony subcommittee members will be permitted to ask questions subject to the five minute limit judge mckeown will you now proceed with your testimony i appreciate being invited to testify here today i am the chair of the judicial conference committee on codes of conduct which is the federal judge's ethics committee and i appear here on behalf of the judicial conference there's three points i'd like to touch on testimony this afternoon first the recusal standards applicable to federal judges second the extensive framework by which the judiciary endeavors to abide by these standards and finally the role that our committee plays in advising and educating judges ethics is a critical part of the fabric of the federal judiciary and impartiality lies at the heart of our work  governed by two key statutes twenty eight u s c section one forty four and section four fifty five in addition federal judges abide by the ethics in government act gift regulations and other statutes and the judicial conference imposes further constraints through the actual code of conduct the language or federal statute four fifty five is also mirrored in our code of conduct there are five specific situations in which one is mandatory and may not be waived those are detailed in my written testimony let me just add one key note here concerning disqualifying financial interest in the federal system unlike in some states system there is no diminished minimum exception for refusal based on a financial interest even owning a single share of stock in a party mandates recusal and federal judges are not permitted to put their assets into a blind trust in addition to the mandatory recusal situations there's one important other mandatory recusal and that is whenever a judge's impartiality might reasonably be questioned these statutes in the code are actually part of a much broader framework that the judiciary has developed both to promote transparency and to provide multiple checkpoints in the recusal process several institutional safeguards operate together to ensure th judges have the tools they need to follow the recusal statute and that judges who have real conflicts will not hear those cases they begin with a system that randomly assign cases to judges within a particular court and at the outset and throughout the entire proceeding judge has an obligation to assess whether disqualification is required guarding against conflict of interest is of paramount importance to us besides random assignment the judicial judges disclosure reports which i know members of congress are also familiar with in their roles and we also disclose our attendance at publicly funded educational seminars and these reports are publicly available the safeguards are tended to appellate review provides a further and further avenue of reporting finally the judicial conduct and disability act which i believe was referenced here by congress and the procedures under that act may be available to provide a check on flagrant violations of the recusal rules the judicial conference through the brier commission has recently strengthened the procedures under that act for addressing complaints against judges finally let me turn to the role of our committee basically we are an advisory body an ethics service center and a sounding board to help judges try to comply with this wide array of ethical principles we are actually often called the dear abby publicly available advisory opinion many of them on the points and they are well beyond the code and the statute also a judge who needs ethics advice in addition to doing his or her own testimony a couple of them i will reserve for my written testimony and focus on one here which has to do with judicial disqualification procedure and the issue of judges deciding their own disqualification motions  four fifty five mckeown testified indicates first that a judge must disqualify himself whenever his impartiality might reasonably be questioned and then goes on to a numerate a series of rather specific instances when your qualification necessary rare in my review for a judge to willfully refuse to disqualify himself under circumstances in which the judge knows that he must on the whole i think our judges are too committed to impartial justice for any but the isolated bad apple to do that and you refer to judge and he may be among them but and ironically however i think it is precisely because or at least partly because our judges are so committed to impartial justice that we have a kind of problem i mean and let me explain judges take an oath to be impartial judges ascribe to a code of conduct in which they are directed to act at all times in a manner that promotes judicial and preserves impartial justice they're asked also to follow a code which says that you should avoid even the appearance of impropriety which means even the appearance frankly of partiality now that being said when  judge is called upon in the context of a disqualification proceeding to disqualify yourself because she is biased or because she is perceived to be biased she is being asked to admit that she is not impartial that she has created a perception problem that the kotel or she shouldn't be creating in other words she is being asked to being accused implicitly of performing in a way that is optimal for that reason i think and understandably judges who are deeply committed to impartial justice are predisposed to think that they can be impartial that they are you know and that they they could not reasonably be perceived otherwise and it's not an at all uncommon for lawyers in the field to say that the judges take on bridge when the judge stands accused operating procedure in disqualification proceedings is for the judge who's disqualification is being challenged to be the judge who decides her own fitness to sit first it strikes me as unfair to the judge in question to ask her to second guess her own impartiality and her own commitment to preserving the appearance of impartial justice second it is unrealistic it seems to me to expect anyone to be able to candidly assess the extent of their own and research in the psychology field under underscores the the complexity of that it's also hard to expect someone to understand how they would reasonably be perceived by another which is equally complicated third and final a party is concerned that a judge appears to be too biased to be fair which is really what's going on in disqualification proceedings it is odd in the extreme to have that issue resolved by the very judge who was allegedly too biased to be fair having a judge grade their own paper in this way is bound to create a perception problem which strikes me as being uniquely problematic for a judiciary that is committed to the appearance of impartial justice and to me the solution is one that many states have adopted which is to adopt what i would suggest to be a two part process that could be embedded in the procedural section of section four fifty five part one of which says let the judge receive the motion initially and make an initial determination as to whether disqualification is an order often off here will recess and we'll come back and have the rest of the opening statement so we have three votes and i would suppose about  about a half hour maybe before we will return so thank you for your patience and we shall return mr tombe perhaps with a group so distinguished as this many of these problems can be resolved by the time we come back from the floor am in a discussion with counsel i suggest that i might speak more broadly about some of the issues that this raises so i want to take a big picture view of appearance of impropriety standards and the rules having to do the recusal i hope this is helpful but perhaps it is too too big a picture of you it is often tempting for for discussions of this subject to turn quickly to appearance of impropriety standards or fact to follow the federal statute or standards the focusing on a judge's impartiality might reasonably be questioned and saying that whenever that might happen when the impartiality might reasonably be questioned the judge ought to recuse himself and i want to suggest that the matter is considerably more complex than that and it's complex because judges are people and are people who come to the court and who while they're on the court acquire various things they acquire for example political connections generally to be appointed a federal judge one needs the backing obviously when needs to be appointed by president when he has the backing of state senators one often gets into that position as a result of an extensive career much of it in with political connections  one also acquires opinions and past statements often about controversial issues one acquires friends and former colleagues so for example especially once there are judges judges have law clerks who often return to become litigants before them and of course many judges in small towns know many actually not you should say litigants with lawyers before them many judges in small towns know most of the local lawyers because there are only so many lawyers traveling in their circle judges acquire spouses and families many of whom have business interests of their own judges may acquire assets even though of course they don't continue to have side jobs there are assets that they continue to have a judge's also in addition to acquiring friends they acquire enemies people for example may harshly criticize them in or out of court or people may oppose their nominee their confirmation by the senate may testify reasonable person of possible partiality to take one example i take it a reasonable person who hasn't really focused on the matter would say that if somebody has called the judge highly projected of names of somebody has had a press conference condemning the judge just as a fascist and a crook for example that might leave the judge's impartiality to be reasonably questioned after all judges are human beings who may take umbrage at that in may and a holding out against the person but we can't have a system in which that leads to automatic recusal because then people can just judge shock simply by insulting enough judges likewise my guess is that many perfectly reasonable lay people when they hear that a case is being argued before a judge by somebody who had clerk that's certainly not a federal court practice to require recusal in such cases and before the u s supreme court many of the top top lawyers are ones who had clerked for the very justices before whom they are arguing of course we want to make sure the judges are impartial to the extent possible we want to preserve appearances she already but we have to balance that a lot against a lot of other factors the factor that we want to encourage that we want to have people be able to criticize judges without having that automatically form all that we don't want judges to be hermits that we want judges to be able to be judges in the same area where they grew up and acquired many connections and practice law so as a consequence i just want to caution against a broad discussion of appearance judicial source rule that try to clarify it and make it more precise and in some measure lead to absence of recusal even one quite reasonable people might conclude there's some question about the judge's partiality i think that has to be recognized and before people get defense attorneys to express our concerns and suggestions i want to augment just one aspect of my written testimony and propose one very concrete step that congress can take to ameliorate the corrosive impact of electioneering upon the reality and perception of an independent impartial judiciary i don't hold myself out as an expert on the law of judicial recusal nor as an expert on the scope of the permissible conduct in judicial elections you've got a great panel of experts that can speak much more eloquent lee to those issues rather i speak on behalf of the nation's criminal defense bar and the hundreds of thousands of accused persons each year who are most keenly impacted by judicial campaign rhetoric and the resulting judicial behavior when re election or retention approaches there is no greater risk to fundamental constitutional rights than the risk borne by the queues who appear before judges who must pick their way through the minefield of judicial election and in this regard i note that this problem is to a large extent a state problem where the congress role is obviously limited indeed if you consider the caperton case which was the genesis of one of the genesis for the for the committee holding this hearing look at what that case was it was a battle a civil fight over land rights and ultimately money it had nothing whatsoever to do with criminal law the rights of the accused a fundamental constitutional rights but the means of dislodging the sitting judge was a blistering diversionary attack upon his decision making in criminal matters this tactic is replicated time and time again in virtually every jurisdiction that elects its judges as a result the candidate who emerges victorious is the one that espouses the most often the one that espouses the most anti defendant pro prosecution points of views in answer to ranking member cobol's question as to whether this is a genuine problem or merely anecdotal i think it is a genuine problem and i think that the pervasiveness of it particularly in its impact on the criminal justice system is one of the reasons as chairman conyers noted that so many people don't feel don't feel that they got a fair shake imagine what it is like to be hauled into court to answer an accusation and know that the  judge who will decide the critical issues in the case including whether or not you perhaps school rn see the prison sentence has promised to quote stop suspending sentences or stop putting criminals on probation or has stated that she doesn't believe in leniency or worse pledged to rule a certain way with certain parties and witnesses all of these examples are cited in our written testimony they are real they are documented the road kill here is not just the rights of the accused whose cases are judged by judges  who have to worry about how a potential advocate adversary may mis characterize their decisions the true victim is the perception of fairness and impartiality of the judiciary that is the moral underpinning of our justice system the people's confidence in the system hinges on the perception by the guilty by the innocent by all who were touched by the criminal justice system and the larger community that judges are not predisposed to decide a case one way or another they can be little doubt that a potent solution lies in the adoption of of recusal rules with some real bite strong rick recusal requirements may in the first place deter the objectionable rhetoric by giving all judicial candidates cover to avoid it now whether or not a federal solution is achievable consistent with our fundamental principles of federalism is questionable but what congress can do and i would argue should do is expose the full extent of the problem you should shine a light on the practices and consequences that are undermining our system of justice there is considerable evidence for the proposition that there is a provable nexus between judicial election campaign rhetoric and you disallowed comes now i know the committee for economic development has issued a report called justice for hire which has some great examples in there but i will just tell you that in my own practice which is i was a practicing attorney as you noted mr chairman before i came to the association and i will never forget once representing a young man who was a passenger in a car from which a large quantity of drugs had been seized from the trunk the testimony at the hearing was so preposterous that even the season court officers were giggling at the police account at the end of the testimony the judge called the lawyers up to the bench and said well what am i going to do do here i said well judge it looks like you're going to have to suppress the evidence to which the judge responded mr rimmer i know it's a bad stop but i can't suppress i've got to run next year will your client take probation now rather than rely on anecdote conjecture and small array of independent studies congress should authorize funding for a research grant to study the relationship between judicial campaign speech and you dish will conduct in criminal proceedings if the research confirms what many of us suspect and believe and what some of the studies that have already been done show it will provide any overwhelming impetus for states to act to listen to some of the suggestions that we've heard here today and to accept justice kennedy's invitation in his opinion and to in caperton to adopt recusal standards that are more rigorous than merely the due process floor that was set in caperton this would be a great step forward and i can tell you that one thing is certain if the present trajectory is continued the combustible mix of electoral politics money and unchecked rhetorical intimidation will destroy the people's trust in the independence of our judiciary thank you thank you mr ryme and last but certainly not least mr professor hellmann thank you mr chairman the starting point for much of today's discussion is of course the caperton decision which deals with for cuse ols in state courts one year before the capel turn decision two justices of the united states supreme court expressed concern about the partiality of a federal judge the judge was manual r the central district of california he was sitting by designation in the district of hawaii and the case involves p ting claims to sons in a brokerage account that had been established by the former philippine president ferdinand marcos justice stevens in a dissenting opinion described some of the things that judge real had done in the case he then said these actions bespeak a level of personal involvement and desire to control the proceedings that create at least a colorable basis for concern about his impartiality and he suggested that it would be best if the case were transferred to a different judge on remand and justice souter agreed well the case went back to the district court judge real continued to preside over those proceedings some of the parties requested an accounting they got one but it wasn't very satisfactory so they appealed to the ninth circuit just last month the ninth circuit handed down its decision the court noted that judge real's written accounting was filled with cryptic notations his oral accounting contradicted the record on several points all this  confirmed the doubts about his impartiality that justice stevens and justice souter had expressed and so the panel did order the case reassigned to another judge well this wasn't the first time that judge real has been criticised by his fellow judges for departing from the ideal of neutrality in january two thousand and eight he was formally reprimanded by the judicial council of the ninth circuit under the one thousand nine hundred eighty misconduct statute that you heard about a moment ago the council found that judge real improperly intervened in a bankruptcy case to help one litigant at the expense of another well there was another misconduct proceeding against judge real this one a pattern and practice complaint and it was investigated very thoroughly by the ninth circuit judicial council after that investigation the council concluded that judge rio failed in many cases to give reasons for his decisions when the law required reasons the counsel pointed to his obduracy and implementing directives from the appellate court it found that his actions had caused  needless appeals unnecessary cost undermined the public's confidence in the judiciary and these occurrences were more than anecdotal more than occasional well that's a pretty damning recital isn't it and you'd think that these findings would lead to some sort of discipline but they did not the council dismissed that complaint and it did so because the national committee the judicial conduct committee in an earlier phase of these proceedings had said that a pattern of practice of this kind could be misconduct only if there was clear and convincing evidence of willfulness and the council found that there just was not well the hundred eighty act is not the subject of this hearing and this isn't the occasion to debate the correctness of that ruling the point rather is that judge wheels actions in the philippine case and the bankruptcy case were not aberrations in his very long career on the bench they were all too representative of a pattern of behavior that is totally at odds with judicial impartiality and the rule of law the goals judge wheels behavior doesn't fit any of the standard categories of bias or partiality a new kind of law is needed and one law that i that would be helpful would be a peremptory challenge law that's discussed in some of the other statements i'd be happy to elaborate on that for the past thank you thank you sir now we will go to questions i'll take the first questions each one of us will have five minutes to default in our federal judicial recusal laws how can we mend the holes in our laws on the front man to prevent these types of issues on the back and and i want  all of the panel members to respond at starting with professor hellmann well i'll take up the suggestion that a peremptory challenge law this is something that i think nineteen states have adopted basically the way i would work it is that each side would have one peremptory challenge of the judge he could just say i think this judge should not sit on the case the judge would not sit on the case and we can build congress can build on the experience but i would not put it into the judicial code right away i suspect that the judicial conference will express concerns about it but i suggest that there is a pilot program to be monitored by the federal judicial center which would report to congress and the judicial conference and based on that report you could decide whether to expand the program modify it or discontinue it so i think that would take care of a lot of those problems thank you professor  mr rymer yes mr chairman our association has not taken a formal position on the various options that are out there we have concerns of separation of powers in terms of how did you do sherry regulates itself but we do believe that consideration should be given whether it is in the first instance by the courts and their own governing mechanism or ultimately by congress to several different remedies including the concept that motions for recusal should be decided by other judges this very interesting suggestion of a peremptory challenge of a judge as well as the most important which is full disclosure of any potential proposal was actually made to congress by the late attorney john frank among others in one thousand nine hundred seventy three at that time he pointed to experience in the states we've now had what thirty plus more years of experience to draw on so i  think there are there is the risk if you write to stack you correctly and if you adopt my suggestion of doing it initially as a pilot project those risks can be minimised professional why would you not allow permit great challenge in criminal cases well first i would i'm not opposed to that and the reason i suggested starting with civil cases and not including the criminal is twofold first every criminal case includes the united states attorney's office as a party many of them include the federal defender and if either of those organizations decided that a particular judge could not hear their cases fairly you'd be in real trouble no i don't think they do that without great provocation but if it happened it would be very disruptive the other and mr bremer may have something to say about this i'm it may be that each defendant in a criminal case would have to have his own right and you have all these multiple defendants narcotics conspiracy and other conspiracy prosecutions today and that would be really disruptive whereas in a civil case you could simply say one two aside and that's it no matter how many parties so it's not opposition critical of all the about that what should happen to us a candidate who campaigned on the wound that he opposes the death penalty and that he has some quickly elected should he be recused from hearing capital cases well if the if the determination rests as i believe it does now pretty much exclusively in the hands of the jury i don't think that that necessarily is a disqualifier and i think the same  caperton case which basically talks in a very vague sense about the relative amount of money and the and and the likelihood that it would impact the person's or the judge's ability to be fair i am more concerned  my association is more concerned less about the actual about the money itself than what the candidate is saying about how they will decide cases and to me that's a much that's that's a different  slant on it than caperton where there was at least the appearance of a connection to one of the parties that's a separate issue but when you have people going out there and saying i'm going to i'm always going to deny probation for example that's not a fair adjudication and even if the judge makes the right decision in a particular case the litigant is not going to feel that they got a fair shake i got you professor of all of your your written testimony suggest that you don't like the this is been a fascinating discussion this afternoon by the fact that there is an investigation of the impeachment process going on in the room that this hearing was supposed to been heard of a federal judge  only last week of the week before we're using another case of a federal judge who reconsidered and they cited to and what this discussion has demonstrated to me chairman johnson is that this is a much more intricate subject than first meets the eye  it complex course i have to acknowledge quickly that lawyers like to make issues complex as a matter of profession perhaps but behind all of this question of what to do and all the issues that are involved in this there's another question that has occurred to me and i think every member of this subcommittee and that is the larger question of the fairness of the american system of justice period without particular reference to the judges state or federal and one of the things that draw us and our our staff to is how how do you do that it's it's so fascinating isn't it that here we are in a country that has been working through this process for two hundred  thirty six years or so and there are still some very big questions out there that have yet to be resolved and so and i'd like to  just please feel free to energex your views at any point in this i'm approaching this as the chairman of the committee that i went to the speaker of the then to appeal that i be the first african american and the history of the congress to be placed on the judiciary committee and  he was impressed with that speaker john j mccormack was his name and since then that at that time there were only we have a we don't we don't do that anymore in the senate judiciary committee they adopted the same process and so we'll be that make come from your colleagues or anybody and in the system because this is the way democracy works at its best when we have a candid review i came to congress working with the cast and my i'm going to tell him about you and what you objection and what what i what i would like to do now is just to invite all of you for our chairman would indulge to let you tell us how this subject matter relates to the greater issue that hangs over us all as members of the baron and members of the court in terms of how these two come together and how how how we ought to look at this exciting part of the federal legislature the judiciary committee reviews constitutional amendment that are proposed by the members do section of the criminal justice system and the federal correction system as well intellectual property matters trademark patents copyrights  how you so you see this discussion i've tried to raise be very grateful i'd be happy to offer a thirty second answer it seems to me that the overriding theme of the committee's work is access to justice in any variety in all of the variety of forms that you articulate and that that means that we need to worry in order to provide access to justice about how judges are selected which is what me the problem is a perennial one because access to justice isn't always a moving target and it's not a matter of getting it right because there is no way to get it right you can only do the best you can at a given moment in time and that's really what the story is all about and i think right now we're at a given place and time and worrying about disqualification rules and what's the best system for the current place and time that might not have been the best system fifty years ago but that's fine that's why there is always a congress like if i can just to amplify on some of the points i was making before we have approximately two and a half million people in prison we have a conviction mill in our misdemeanor courts that is an absolute disgrace so we have countless numbers of our citizens passing through these systems the mix of money and rhetoric and electioneering is undermining the faith of the people in the independence and impartiality of the judiciary that's the problem and i don't think that one hearing is the answer and i proposed a study i don't think one study is the answer but we certainly have to shine a light on it if we're going to correct it because ultimately if the people don't have confidence in the judicial system we're in trouble  thank you i appreciate that mr chairman you've recognized how intricate and complex these issues are and not subject to just a simple solution but something that you said really was brought home to me and that is the importance of fairness in the system and on that point i think it's important not just the actual fairness of the system but the public perception of the system and that's something that i think the committee obviously is looking at here what can we do well certainly we welcome on the part of the federal judiciary simply having the subject of ethics being so prominent it's important to us it's important to the public and we go back from this hearing with a renewed mission and vigilance to look at our ethics procedures and to continue with our education and with our advice and i'm happy to take back to the members of the judiciary committee comments we've gotten from the members your thoughts and your concerns it's a privilege to be able to be here and we welcome ethics being first and foremost it's important to us it's important to the public realize how important transparency is and i think one of the virtues of this hearing is that it emphasizes that and i'm sure judge mckeown will go back to the judicial conference to the circuit counsel and to the other judges and that will help to build understanding of the importance of not just doing the right thing but telling people what is going on chairman let me thank you very much for this very provocative hearing and i think the judiciary committee as i have come to understand has a dominant role both in the business of this congress but also the important business of justice in this contemplate this whole area of recusal i would offer to say that as i listen to one idea and i love creative thought about a preemptive strike of sorts that i would only offer this expanded explanation the federal courts saved me as a representative of a body of people that were second class citizens for centuries and i'm reminded of the courts that thurgood marshall went in and was able to find federal judges that would provide the opportunity for justice the opportunity in brown very says topeka  in justice warren to be able to open the doors are opportunities for those individuals like myself it has happened for women it's happened for latinos it has happened for others of less economic integrity is pierced we lose the justice system lose america loses and i do want to associate myself with the chairman both the chairman of the full committee and the chairman of the  where these petitioners are seeking documents that would help produce prosecutors and agents for interviews we don't know whether there was a hand in glove relationship between prosecutors and judges the  six case i consider it expanded because it deals with prosecutorial abuse where there was inaction as opposed to action so my point would be that we need to look at these questions with a very keen eye and a sensitive aren't and mine because what we do want to have happen is that lawyers can go into a court and find justice so i ask this question i think the overall problem that we have a stigma that comes about when a judge recuses is so or herself people begin to look for suspicious behavior and it may be that that judge has the highest level of integrity so my first question would be and i'd like you to go down the line we need to develop from the highest levels the attorney general's office the different conference the supreme court that recusal is not an indictment it's not a conviction of that court and that judge at the minimal level if they decide to do that on the grounds of making sure there isn't a goody my first question the second question is that do you feel that we have a says a system of justice where there are victims because a judge has not recuse themselves because there is a conflict of interest and if that is the case and we cannot tolerate it i'd appreciate it if we could start with  judge quickly on this stigma and how we can break that to make it alright for a judge to make a determination based on our criteria that they were accused him so if you could quickly go down because hank you are right on that i guess i would paraphrase here is to say not a four letter word and we'd like to have that i like that judge's know that i think we made a good start at that we have these number of advisory opinions that that start through all the reasons a judge should recuse and we want judges to be mindful of that with your comments in mind i think it just renews the importance of education in this area because recusal is good for the judiciary and for the public when done appropriately and you believe that you know that justice has been denied probably in cases where that refusal did not occur you know i do not have personal knowledge of various circumstance i see in cases where it came up on appeal and the court of appeals either reverse a denial of someone who declined to recuse or a case where the court of appeals said yes we believe it was improper for the judge just in the case and we're going to reassign that case  past that now i think there's still the norm there impartial i think but you know getting to my earlier testimony the problem is that judges are people too and in the twentieth century and beyond we kind of understand that judges as people too are subject to bias so we need to reach that kind of agreement that yes we can presume impartiality without begrudging the fact that judges are human too and they're capable of the same bias that others have and when that happens and when they go over the top they need to step down as to whether justice has been denied i am sure that it has the problem is that the only circumstances we have in which a judge is done badly is typically in cases where they're out so we have a hell of a time figuring out about the great silence but i'm confine myself to answering the two questions but just again recognizing that the slant that we have on this is concern about what's going on in the states and particularly the thirty nine states that elect judges  first of all court administrators should encourage a climate in which recusal is acceptable in many jurisdictions judges are saddled with huge dockets and there's a lot of internal pressure to move these dockets along and so we need to have court administrator say look if this is slightest question in your own mind give up the case it's not bad you won't be you won't get it to merit for doing that with respect to whether or not injustice has taken place i don't know i'm sure that it has but what i do know is that the perception of injustice take is taking place we can't know because we can't look into the heart and mind of an individual judge to know whether or not their decision was colored by statements that they made before they took the bench or in getting to the bench i'm not concerned about the heart and the mind i'm concerned about the mouth and if they say it and  goes before them and they make a decision it's a perception that the person hasn't had a fair chance to start with the second question unfortunately there are almost certainly have been injustices in particular cases because the judge cases are handled by judges who as others have said are human the task for the judiciary and the committee and congress is to minimize those and to build structures that will make them as infrequent as possible i do think that the judiciary as judge mckeown he said takes its responsibilities in that very seriously and on the question of whether a recusal is seen as a mission of a lack of impartiality i'm not sure that it is i think that in many instances it is seen as a judge conscientiously doing what the law requires him or her to paddle crusted just a man who practice law and was a litigator before he was elected to congress from the great state of illinois mr mike qui thank you mr chairman a great introduction to about two hundred trials under my belt and i can still say i have to survive in ten years in cook county that some of my best friends are judges  which i will tell you from practical experience saved a tremendous amount of banks and problems if you know anything about cook county it worked very well it worked through the chief judge's office so the judge  didn't know about it unless the case was already before him and then within a certain time frame he still had a right to make motion for substitution and a writer recusal so i thought it worked quite well was very rare that you saw a judge find out about it or get offended by it but as to the minority of judges and i think it is a minority who are deficient in some respects in some cases that can be ethically deficient or without realization that they might have at least the appearance of impropriety i find it very i always found a very difficult time finding another judge willing to sit in judgment of and saying i think my guy go play golf with  partner with one of my fellow judges you know should step down in this because as you say i think someone said besides the stigma they're being accused implicitly of not being impartial  so is it harder to do it yourself or is it harder to do for somebody else that you you work with so two professors i think mention that i mean if you could give us your assessment of whether or not you think judges can effectively sit in judgment of each other toward this sort of motion your point is well taken a big part of it is the perception of justice when you have the fox guarding his own house it creates more of a perception problem then when you in your heart of hearts looking at this don't you think that issue in the issues of a judge reviewing themselves or putting themselves in is more challenging when is a federal judge because they don't face reelection just from my own perspective a judge who at least every six years now and i have to be not reelected but they have to be brought back by the by the voters in a different process i just think it's human nature that a few of us we're all been scanned i guess but a few of us perhaps more than others some wear black robes but those who do it in federal court it's perhaps just human nature that they and they might sense that they can't be touched and it's just one more reason to challenge the system as far as you can well i can tell you as an empirical matter i can s think about but you raise a question as to whether someone else should hear the case the judicial conference has taken a position on that particular point and certainly it you raise an interesting point obviously i like you i practice both in the federal and state system and i think to some degree the fact that federal judges are not allowed in fact gives them both the ability and the question to perhaps do the right thing in an easier manner because they are not like i appreciate your remarks thank you thank you mr quickly we will we will adjourn this hearing but i would like to thank all the witnesses for the testimony today and without objection members will have five legislative days to submit any additional written questions which we would then forward to the witnesses and ask that you answer yes properly as promptly as you can to be made a part of this record without objection the record will remain open for five legislative days for the submission of any of the additional materials again i thank everyone for their time and patience to date and this