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OPERATIONS OF FEDERAL

JUDICIAL MISCONDUCT STATUTES

HEARING

BEFORE THE

SUBCOMMITTEE ON COURTS, THE INTERNET,

AND INTELLECTUAL PROPERTY

OF THE

COMMITTEE ON THE JUDICIARY

HOUSE OF REPRESENTATIVES

ONE HUNDRED SEVENTH CONGRESS

FIRST SESSION

NOVEMBER 29, 2001

Serial No. 45

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://www.house.gov/judiciary

(II)

COMMITTEE ON THE JUDICIARY

F. JAMES SENSENBRENNER, JR., WISCONSIN, Chairman

HENRY J. HYDE, Illinois

GEORGE W. GEKAS, Pennsylvania

HOWARD COBLE, North Carolina

LAMAR SMITH, Texas

ELTON GALLEGLY, California

BOB GOODLATTE, Virginia

ED BRYANT, Tennessee

STEVE CHABOT, Ohio

BOB BARR, Georgia

WILLIAM L. JENKINS, Tennessee

CHRIS CANNON, Utah

LINDSEY O. GRAHAM, South Carolina

SPENCER BACHUS, Alabama

JOHN N. HOSTETTLER, Indiana

MARK GREEN, Wisconsin

RIC KELLER, Florida

DARRELL E. ISSA, California

MELISSA A. HART, Pennsylvania

JEFF FLAKE, Arizona

MIKE PENCE, Indiana

JOHN CONYERS, JR., Michigan

BARNEY FRANK, Massachusetts

HOWARD L. BERMAN, California

RICK BOUCHER, Virginia

JERROLD NADLER, New York

ROBERT C. SCOTT, Virginia

MELVIN L. WATT, North Carolina

ZOE LOFGREN, California

SHEILA JACKSON LEE, Texas

MAXINE WATERS, California

MARTIN T. MEEHAN, Massachusetts

WILLIAM D. DELAHUNT, Massachusetts

ROBERT WEXLER, Florida

TAMMY BALDWIN, Wisconsin

ANTHONY D. WEINER, New York

ADAM B. SCHIFF, California

PHILIP G. KIKO, Chief of Staff-General Counsel

PERRY H. APELBAUM, Minority Chief Counsel

SUBCOMMITTEE ON COURTS, THE INTERNET, AND INTELLECTUAL PROPERTY

HOWARD COBLE, North Carolina, Chairman

HENRY J. HYDE, Illinois

ELTON GALLEGLY, California

BOB GOODLATTE, Virginia, Vice Chair

WILLIAM L. JENKINS, Tennessee

CHRIS CANNON, Utah

LINDSEY O. GRAHAM, South Carolina

SPENCER BACHUS, Alabama

JOHN N. HOSTETTLER, Indiana

RIC KELLER, Florida

DARRELL E. ISSA, California

MELISSA A. HART, Pennsylvania

HOWARD L. BERMAN, California

JOHN CONYERS, JR., Michigan

RICK BOUCHER, Virginia

ZOE LOFGREN, California

WILLIAM D. DELAHUNT, Massachusetts

ROBERT WEXLER, Florida

MAXINE WATERS, California

MARTIN T. MEEHAN, Massachusetts

TAMMY BALDWIN, Wisconsin

ANTHONY D. WEINER, New York

BLAINE MERRITT, Chief Counsel

DEBRA ROSE, Counsel

CHRIS J. KATOPIS, Counsel

ALEC FRENCH, Minority Counsel

(III)

C O N T E N T S

NOVEMBER 29, 2001

OPENING STATEMENT

The Honorable Howard Coble, a Representative in Congress From the State

of North Carolina, and Chairman, Subcommittee on Courts, the Internet,

and Intellectual Property .................................................................................... 1

The Honorable Howard L. Berman, a Representative in Congress From the

State of California, and Ranking Member, Subcommittee on Courts, the

Internet, and Intellectual Property .................................................................... 2

WITNESSES

Mr. Douglas T. Kendall, Executive Director, Community Rights Counsel

Oral Testimony ..................................................................................................... 5

Prepared Statement ............................................................................................. 6

Mr. Arthur D. Hellman, Professor of Law, University of Pittsburgh School

of Law

Oral Testimony ..................................................................................................... 39

Prepared Statement ............................................................................................. 40

Mr. Michael J. Remington, Partner, Drinker Biddle & Reath L.L.P.

Oral Testimony ..................................................................................................... 53

Prepared Statement ............................................................................................. 55

The Honorable William L. Osteen, U.S. District Judge for the Middle District

of North Carolina

Oral Testimony ..................................................................................................... 70

Prepared Statement ............................................................................................. 72

APPENDIX

Material submitted for the record .......................................................................... 99

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OPERATIONS OF FEDERAL JUDICIAL

MISCONDUCT STATUTES

THURSDAY, NOVEMBER 29, 2001

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON COURTS, THE INTERNET, AND INTELLECTUAL PROPERTY, COMMITTEE ON THE JUDICIARY, Washington, DC.

The Subcommittee met, pursuant to call, at 10 a.m., in Room

2141, Rayburn House Office Building, Hon. Howard Coble [Chairman of the Subcommittee] presiding.

Mr. COBLE. Good morning, ladies and gentlemen. Welcome to the

hearing this morning.

I am advised that there will imminently be a journal vote, in

which case we will have to disembark and head for the floor. And

I think there will be a new Member that will be sworn in, as well,

so this may involve about 15 to 20 minutes. So if you all will rest

easy while we are away—but Howard and I have decided to go

ahead and give our opening statements, so that will at least save

some time.

Today, we will review the operation of those mechanisms designed to compel ethical behavior among Federal judges. I emphasize to our witnesses that this hearing was not scheduled in response to individual misconduct cases brought to the attention of

the Subcommittee. Rather, I firmly believe that the Subcommittee

is charged by the Constitution and the House rules to conduct vigorous oversight on a regular basis.

On the whole, I believe that the Federal judiciary is functioning

well, but no branch of government—and I think we will all agree— is immune from evaluation. The point of this hearing is to take the

ethical temperature of the Third Branch and determine what, if

anything, should be done to improve upon its current record. Such

an exercise, I believe, will assist in improving the administration

of the United States courts and also instill greater public confidence in their operations.

At this point, let me digress a moment, if I may, to caution our

witnesses and our Subcommittee Members to try to stick to the

subject matter at hand. More specifically, we have not convened

this morning to debate competing judicial philosophies or schools of

thought, nor are we meeting to critique the merits of individual

district or circuit decisions that touch upon hot-button issues.

Health care environment, organized labor or the workings of the

American industry are topics that I think should not be emphasized today. I am not very interested in examining the reading habVerDate 11-MAY-2000 11:57 Jan 03, 2002 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 G:\WORK\COURTS\112901\76383.000 HJUD1 PsN: HJUD1
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its or seminar attendance practices of life-tenured judges who are

desirous of becoming better educated or informed. These are all

good hearing topics, but I think are not the focus of the hearing

today.

We should primarily concern ourselves with determining whether

the Judicial Conduct and Disability Act, along with the relevant

recusal statutes, are working as intended.

To conclude, while each of us is possessed of unique life experiences and personal political convictions, I believe we are all united

in our desire this morning to support a vibrant, strong and independent judiciary.

Finally, I personally wish to thank everyone on the panel for his

patience in working around the evolving Subcommittee schedule in

preparation for this hearing. Folks, as you all know, since September 11, things have had an irregular turn, scheduling and otherwise, and I appreciate your flexibility and also appreciate the

Members of the Subcommittee for your flexibility.

I am now pleased to recognize my good friend, the distinguished

gentleman from California, the Ranking Member, Mr. Berman, for

his opening statement, after which we will adjourn to the floor and

return soon.

Mr. Berman.

Mr. BERMAN. Thank you very much, Mr. Chairman. Given the

accuracy of your prediction about a vote coming at this point, I was

wondering if you can tell me when we are adjourning for the year.

I thank you for calling this hearing on Federal judicial misconduct statutes. This hearing provides us the opportunity to discuss and evaluate the utility of these statutes and to find ways in

which we can improve either the statutes themselves or the methods and frequency with which they are employed.

I would like to thank all of our witnesses for appearing today.

Among the four witnesses, we have expert knowledge of the Federal courts, judicial ethics and the laws and commissions that govern judicial discipline and removal. I look forward to their input on

this issue. I particularly welcome Mike Remington, who for many

years gave his expertise on this side of the podium and now is appearing before us as a witness for the first time.

I have no doubt that many of our Nation’s fine judges could impartially and fairly decide a case involving a company in which

they hold stock. Likewise, many are highly capable of deciding a

case solely on the facts presented while subsuming strong personal

opinions on the issues presented or ignoring ex parte communications. Nonetheless, we must ensure that the procedures for reporting and evaluating potential conflicts are working smoothly. It is

also important for us to determine how thoroughly complaints are

treated within the judiciary if a concern is raised by a litigant.

Our laws must, to the extent possible, guarantee complete judicial impartiality while still preserving the independence of the judicial branch through self-regulation. Today’s hearings should inform

us on the success of the judicial misconduct statutes in achieving

this goal.

This hearing will be useful in raising awareness of these issues

and will help us to determine if and where additional legislation

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is necessary to prevent any Federal judicial misconduct or lessen

the appearance of such misconduct.

Mr. Chairman, I take your point that this is not a hearing about

judicial decisions. While I might be tempted to view a decision that

I don’t like as judicial misconduct, I think that is probably not the

standard that our Founding Fathers envisioned and—and so, to

that extent, I concur with your admonition.

I yield back, Mr. Chairman, and look forward to hearing the witnesses when we come back from our vote.

Mr. COBLE. Thank you, Mr. Berman. And as to my prediction for

adjournment, I will take that under advisement and be back to

you.

Folks, you all rest easy for about 10 minutes and we will return.

[Recess.]

Mr. COBLE. Thank you, folks, for your indulgence; and we will

proceed.

I regret—as you know, we have two new Members that have

been assigned to our Subcommittee since we last met, and I wanted to recognize each of them, but neither is present. And I regret

that particularly, Professor Hellman, because the gentlelady from

Pennsylvania wanted to introduce you, but I will recognize her

when she gets here. I am sure she will be here later.

We are glad to have Arthur Hellman back with us, who has been

here before. Professor Hellman teaches courses in Federal court

civil procedure and constitutional law at the Pittsburgh School of

Law. Earlier this year, Professor Hellman was designated as one

of the school’s first distinguished faculty scholars. He has participated in numerous institutional enterprises aimed at improving the

administration of justice, both State and Federal. He served as the

Chair of the Civil Justice Reform Committee of the American Judicature Society, and he supervised a distinguished group of legal

scholars and political scientists in analyzing the innovations of the

Ninth Circuit and its Court of Appeals. From 1999 through 2001,

he served on the Ninth Circuit Court of Appeals Evaluation Committee.

Professor Hellman received his B.A. magna cum laude from Harvard University and his J.D. from the Yale School of Law. He has

been a member of the faculty of the Pittsburgh School of Law since

1975.

Mr. Michael J. Remington, who was acknowledged by Mr. Berman—and I will reiterate what he said, Mike; it is good to have

you back on the Hill.

Mr. Remington is a partner in the law firm of Drinker, Biddle

& Reath, where he specializes in intellectual property law, court reform, government relations and lobbying. Prior to entering private

practice, Mr. Remington held high-level positions in the three

branches of the Federal Government. Most impressively, for a total

of 13 years he was chief counsel of this very Subcommittee.

We have expanded our horizons jurisdiction-wise, Mike, since

then, but it is good to have you back nonetheless.

In the judicial branch, Mr. Remington served as law clerk to U.S.

District Judge John W. Reynolds and deputy legislative affairs officer to the Judicial Conference of the United States under Chief

Justice Warren Burger.

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In the executive branch, he was a prosecutor in the Criminal Division of the U.S. Department of Justice, where he specialized in

criminal appeals. Finally, Mr. Remington is the former director of

the National Commission of Judicial Discipline and Removal, an

entity established by Congress to study and report to the President,

Chief Justice and Congress on issues relating to judicial misconduct and impeachment.

A former Fulbright Scholar in Paris and Peace Corps volunteer

in Africa, Mr. Remington is a graduate of the University of Wisconsin, where he received his law degree. He is admitted to practice in the State of Wisconsin and the District of Columbia as a

member of the Intellectual Property Section of the American Bar

Association.

Now I apologize to some of you all for the lengthy introductions.

Mr. Berman and I know all about these people that many of you

in the audience may not, and I think, for your information, this is

in order.

Mr. Doug Kendall, who is the founder and executive director of

a public interest law firm that helps State and local governments

defend environmental and land use protections. Mr. Kendall represents his clients in State and Federal appellate courts around the

country.

Mr. Kendall is the co-author of the ‘‘Takings Litigation Handbook,’’ a comprehensive guide to defending land use protection. He

has written numerous CRC reports, law journal articles and opinion pieces in major papers. Mr. Kendall received his B.A. in economics with high distinction from the University of Virginia in

1986 and his J.D. From the University of Virginia School of Law

in 1992.

Now I am going to take a little bit of liberty from the Chair in

recognizing our final witness. Each of us represents districts where

a very select group of people stand out, not only in their respective

professions, but generally in life, and such is applicable to Judge

Osteen. Judge Osteen is presently serving as district court judge

for the Middle District of North Carolina. Was appointed by President Bush in June 1991. He is a past member of the North Carolina State legislature, Chair of the Guilford County Economic Opportunity Council, member of the Greensboro, North Carolina, City

Zoning Commission, and member and Chair of the Greensboro City

Human Relations Commission.

From 1969 to 1974, he was U.S. Attorney for the Middle District

of North Carolina. And in that capacity, I have to say—I am proud

to say, he was my boss. He received his B.A. degree in economics

from Guilford College and his LL.B. From the University of North

Carolina School of Law 3 years later.

We are pleased, as well, to have Mrs. Osteen in the audience.

It is good to have all of you with us. We have written statements

from all of the witnesses on the panel, which I ask unanimous consent to submit to the record in their entirety.

Before we begin, I am going to take some more liberty. I picked

up today’s edition of Roll Call and on the front page was embezzled

or embodied or portrayed—strike that—embodied and portrayed a

very handsome gentleman. And that was a very fine article, Mr.

Delahunt. And I commend you for that.

5

Gentlemen, as you all know, you have been advised that we

would like you to confine your testimony to the 5-minute rule. Now,

when that red light appears in your eyes you will know that 5 minutes have elapsed. You will not be keyholed or taken into custody

if you violate that. But when you see that red light, that is your

invitation to pretty well wrap it down. We have your written testimony, which has been reviewed, which will be reviewed again.

Ms. Hart is not here yet, so we will suspend that.

Mr. Kendall, if you will begin your testimony. Good to have all

of you with us, gentlemen.

STATEMENT OF DOUGLAS T. KENDALL, EXECUTIVE

DIRECTOR, COMMUNITY RIGHTS COUNSEL

Mr. KENDALL. Mr. Chairman and Members of the Subcommittee,

thank you for conducting this important oversight hearing on the

operation of Federal judicial misconduct and recusal statutes.

Community Rights Counsel’s work on private judicial seminars,

better known as ‘‘junkets for judges,’’ has focused on the operation

of a Bozeman, Montana-based group called the Foundation for Research on Economics and the Environment, or FREE. FREE flies

about 50 Federal judges a year to resorts and dude ranches in

Montana to spend 5 or 6 days at a seminar on environmental law.

FREE pays for judges’ tuition, room and board, and travel expenses, a gift worth well over a $1,000.

FREE seminars, in their words, reject top-down command and

control environmentalism and promote private property rights,

market incentives and voluntary arrangements. FREE receives

about one-third of its funding from a handful of large corporations,

including Texaco, General Electric and Monsanto; companies that

regularly litigate environmental cases in Federal court.

FREE’s remaining funding comes mainly from foundations, such

as the Sarah Scaife Foundation, which simultaneously funds

groups like the Pacific Legal Foundation to litigate environmental

cases in Federal court. Free’s corporate funders regularly send corporate officers to FREE seminars where they get to lecture to, dine

with and in some cases, share a log cabin with Federal judges.

I don’t think any objective observer could examine FREE’s operation and conclude that FREE seminars advance public confidence

in the judicial branch. Indeed, editorials from over 30 major newspapers from across the country have harshly criticized FREE and

‘‘junkets for judges’’ generally. As Representative Lofgren has stated, ‘‘there is nothing more damaging to the citizens’ faith in this

country and due process of law than the belief, even if inaccurate,

that those who are trusted to judge have been influenced by financial connections.’’

I must say that I am surprised and disappointed by the Judicial

Conference testimony suggesting that Advisory Opinion 67 does not

necessarily require any inquiry into the litigation activities of the

funders of organizations like FREE. I think this is a very strained

interpretation of the words of AO 67.

More importantly, ignorance, in this case, is not bliss. It is simply impossible for a judge to determine the propriety of attending

a seminar without knowing whether the host is funded by corporations litigating before the judge. Respectfully, if AO 67 means what

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the judiciary is suggesting, it means it is not worth the paper it

is written on.

Let me turn to the issue of stock conflicts. Judges should never

rule in cases in which they own stock as a party. This is the brightest line in the rules of judicial ethics and it is not a difficult rule

to follow. That is why I think the Kansas City Star story on stock

conflicts by district court judges and the Community Rights Counsel study on stock conflicts by appellate court judges are so remarkable. These reports and others done subsequently have all examined very small samples and found significant numbers of stock

conflicts.

The judiciary has taken some steps to correct the problems with

stock conflicts, but the judiciary rejected the single most important

reform: the posting of publicly available recusal lists. Adopting

your wise comment to the Kansas City Star, Chairman Coble,

quote, ‘‘I don’t think judges’ financial holdings ought to be insulated from public knowledge.’’ A theme running through both the

stock conflict and junket stories, is the fact that judges’ financial

disclosure forms are inordinately difficult to obtain and too frequently omit required information. Unlike the other two branches

of government, which allow immediate review of judges’ public disclosure forms, the judiciary requires advanced notification of every

Federal judge before releasing a form. This advanced notification

takes weeks and hinders a review because litigants fear reprisal if

a review becomes known by a judge.

Those obtaining judges’ financial disclosure forms are often disappointed in their accuracy and completeness. Comparing judges’

disclosure forms with a list of attendees obtained from FREE, Community Rights Counsel found that 13 of the 109 judges, 12 percent,

that attended a FREE trip did not report the trip even after receiving a September, 1998 letter from the Financial Disclosure Committee warning, quote, ‘‘Judges who have accepted such trips and

not reported them in their financial disclosure form should immediately file amended reports.’’

Underdisclosure is just as larg a problem. For example, in 1998,

only three of 34 judges that reported attending a FREE seminar estimated the value of the seminar gift as required under Federal

disclosure laws. Again, echoing your wise words, Chairman Coble,

the time to quote—it is time to, quote, ‘‘get some sunlight into what

appears to be a dark room,’’ unquote.

Respectfully, I would recommend that the Committee ask the

General Accounting Office to investigate the judiciary’s compliance

with Federal disclosure laws and make recommendations for improving the entire judicial disclosure process.

Thank you very much.

Mr. COBLE. Thank you, Mr. Kendall.

[The prepared statement of Mr. Kendall follows:]

PREPARED STATEMENT OF DOUGLAS T. KENDALL

Mr. Chairman and Member of the Committee: Thank you for conducting this important oversight hearing on the operation of federal judicial misconduct and recusal

statutes. A bedrock of our system of government is the principle that no one—least

of all a federal judge—is above the law. Judicial misconduct and recusal statutes

help preserve the sanctity of this principle by ensuring that ethical and legal transgressions by judges are taken seriously, even if they do not rise to the level of an

7

impeachable offense. These statutes must function properly in order to protect the

public trust and confidence upon which our independent judiciary rests.

I am the founder and Executive Director of Community Rights Counsel, a not-forprofit, public interest law firm located in Washington, DC with the mission of helping state and local governments defend land-use and environmental protections

against court challenges. Surprisingly, CRC has also become deeply enmeshed in

several issues pertaining to judicial ethics. I say surprisingly, because this was not

supposed to be a substantial part of CRC’s mission. CRC also regularly litigates in

federal court, making it uncomfortable for us to also play the role of a judicial ethics

watchdog organization.

CRC got involved in judicial ethics issues only after we learned that a corporatefunded outfit called the Foundation for Research on Economics and the Environment (FREE) located in Montana was hosting federal judges for week-long stays at

resorts and dude ranches and teaching judges to be deeply skeptical about environmental laws and land-use protections. We have stayed involved in the subject because each place we looked, under every rock we turned, we have found troubling

evidence of a problem. Our work has convinced me that the federal judicial misconduct and recusal statutes are not working as well as they should and that there

is a need for vigilant oversight on this issue by Congress.

My testimony today will cover two topics that have been the subject of Community Rights Counsel reports: financial conflicts of interest and corporate-funded

trips, what some have labeled ‘‘junkets for judges.’’ While these problems are distinct, common threads run between them. Both problems illustrate the critical need

for accurate and timely public financial disclosure by judges and the serious flaws

in the existing disclosure system. Both problems also illustrate the need for effective

penalties for non-compliance with ethical standards and the inadequacy of the current judicial disciplinary system in acting as a serious deterrent. Finally, corporate

litigants—as the funders of the trips and the source of the financial conflicts—are

at the center of both problems. This fact is disturbing because at the same time

these junkets and stock conflicts have come to light, there has emerged a new form

of judicial activism from our federal courts that is pro-market, hostile to government

regulations and in keeping with the interest of these same corporations.

I. JUNKETS FOR JUDGES UNDERMINE PUBLIC CONFIDENCE IN THE JUDICIARY

Corporations and foundations that have a legal agenda in the courts are advancing this agenda by paying for free trips for federal judges to resorts and dude

ranches. Once there, judges attend lectures making the case for curbing government

regulation in favor of a free-market approach to matters like protecting the environment.

A. Corporations and Special Interests with Legal Agendas Should Not Be Permitted

to Give Judges Gifts worth Thousands of Dollars

The problem with junkets for judges starts with the funding. Corporations and

foundations with a legal agenda should not be permitted to fund, and thus shape,

the legal education received by our federal judges. The fact that judicial education

is being paid for by entities that have an interest in or are parties to federal litigation creates an appearance of improper influence and undermines public trust and

confidence in the judiciary.

A July 2000 report by Community Rights Counsel, Nothing for Free: How Private

Judicial Seminars are Undermining Environmental Protections and Breaking the

Public’s Trust, (recently republished in the Harvard Environmental Law Review and

available online at www.tripsforjudges.org) provides a comprehensive look at the

problems posed by privately funded judicial seminars. Nothing for Free found that

between 1992 and 1998 more than 230 federal judges—more than a quarter of the

federal judiciary—traveled to resorts at the expense of private interests with a stake

in federal litigation.

An April 2001 ABC News’ 20/20 program, which focused on a trip hosted by

George Mason’s Law and Economics Center (LEC) at the Omni Tucson Golf Resort

and Spa, perfectly illustrated this problem. The 20/20 program featured federal

judges on the golf course and lounging poolside with cocktails. Several judges interviewed on camera called the trip a ‘‘vacation.’’ Meanwhile, ABC News discovered numerous cases in which LEC’s corporate sponsors were litigating before a LEC

attendee.

Consider finally a recusal motion recently filed in a case called Aguinda v. Texaco.

Lawyers for 30,000 Ecuadorian Indians sought to remove the judge hearing their

$1 billion environmental case against Texaco after learning that Texaco had been

a regular and substantial contributor to FREE, which hosted a junket attended by

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the presiding judge. At the FREE trip, the former CEO of Texaco gave a lecture

to the judge entitled ‘‘The Environment: A CEO’s Perspective.’’ On the 20/20 program and elsewhere, judges have asserted that they were unaware of the corporate funding of FREE and LEC. For example, one judge told 20/

20: ‘‘I have no idea where [LEC] gets its money.’’ When asked by 20/20 whether he

knew that LEC gets its money from corporations, another judge responded, ‘‘[LEC]

didn’t tell us that.’’ When asked whether he had an obligation to find out, this judge

responded: ‘‘Not necessarily, I mean because what’s the difference?′′ Advisory Opinion 67, issued by the Judicial Conference’s Committee on Codes of

Conduct, requires that judges investigate the sponsors and ‘‘source of funding’’ for

any privately funded seminar before attending. A September 1998 report, prepared

by the Committee on Codes of Conduct in response to a request by several members

of this Subcommittee, reaffirmed that under Advisory Opinion 67, ‘‘specific information about the sponsor of the seminar, the source of funding, their involvement in

litigation, the content of the seminar, and the judge’s relationship to such litigation

all bear on the question of whether a judge’s participation is proper or improper

under the Code of Conduct.’’

B. Corporations and Special Interests are Using Junkets to Advance a Legal Agenda

During an interview for 20/20, the Dean of the George Mason Law School frankly

admitted that LEC is ‘‘out to influence minds . . . If court cases are changed, then

that is something we are proud of as well.’’ FREE is equally brazen about using its

seminars to promote ‘‘free market environmentalism,’’ a school of thought that embraces, in their words, ‘‘property rights, market processes and responsible liberty’’

and rejects ‘‘command and control’’ environmentalism.

Particularly troubling is the evidence that suggests that these private seminars

are in fact changing court cases. CRC’s Nothing for Free report documents a pattern

of disturbing facts, including the following:

• In 10 of the last decade’s most dramatic departures from established precedent in the area of environmental law, the judge striking down the protection

took part in at least one junket.

• In six of these cases, the judge attended the trip while the case was pending.

• In at least three of these cases, the judge ruled in favor of a litigant

bankrolled by the trip’s sponsors.

• In one of the decade’s most important environmental rulings, a judge ruled

to uphold habitat protection, attended a seminar, came back, switched his

vote, and wrote an opinion striking down a central component of the Endangered Species Act.

Even assuming that the remarkable correlation documented in Nothing for Free

is complete coincidence, this correlation still creates an awful appearance problem

for judges and the judiciary. As Representative Zoe Lofgren of this subcommittee

stated eloquently at an oversight hearing three years ago when word of these trips

first came to light:

There is nothing more damaging to citizens’ faith in the country and in the due

process of law than the belief, even if inaccurate, that those who are trusted

to judge have been influenced by financial connections.

C. Judicial Education Should Not Take Place in a Vacation Setting

The final problem with FREE and LEC junkets for judges is that they take place

at resorts. Indeed, as noted above, several judges told 20/20 that they viewed the

LEC seminar they were attending as a ‘‘vacation,’’ a statement validated by footage

of judges on the Omni Tucson’s championship golf course.

The exotic locales of the FREE and LEC trips exacerbate the appearance problems

stemming from these programs in several ways. Most obviously, even if corporate

litigants were permitted to fund judicial education, they certainly should not be permitted to pay for judicial vacations. Additionally, however, the resort settings give

FREE and LEC a competitive advantage over seminars hosted by the taxpayerfunded Federal Judicial Center. As Abner Mikva stated in a recent New York Times

opinion piece:

The federal judiciary has a Federal Judicial Center that provides educational

seminars for judges on a wide range of legal topics. Since it uses taxpayer funds

and answers to Congress, the program locales are not exotic, but the presentations are balanced.

Judge Rya Zobel, former Director of the Federal Judicial Center, echoed Judge

Mikva in testimony before this Subcommittee: ‘‘we have offered annually a program

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on environmental law, for example, in conjunction with Lewis & Clark University.

The primary complaint we’ve had about that is that we work the judges too hard.’’

II. JUDICIAL STOCK CONFLICTS CANNOT BE TOLERATED

Over the last three years, news organizations and Community Rights Counsel

have looked at different judges and different geographic regions and come to the

same conclusion: judges are ruling far too frequently in cases in which they have

a disqualifying financial conflict of interest.

A. Legal and Ethical Standards Are Unequivocal

The legal and ethical standards with respect to financial conflicts of interest could

not be clearer. Judges cannot rule in a case in which he or she has a financial interest, period. This obligation is enshrined in federal law (28 U.S.C. § 455) and the

Canons of Judicial Ethics (Canon 3). It is enforced by a certification requirement

which every judge must sign each year, subject to criminal and civil sanctions, certifying that:

In compliance with the provisions of 28 U.S.C. § 455 and of Advisory Opinion

No. 57 of the Advisory Committee on Judicial Activities, and to the best of my

knowledge at the time after reasonable inquiry, I did not perform any adjudicatory function in any litigation during the period covered by this report in which

I, my spouse, or my minor or dependent children had a financial interest, as

defined in Canon 3C(3)(c), in the outcome of such litigation.

Judges are required by the Canons to ‘‘keep informed about the judge’s personal

and fiduciary economic interests, and make a reasonable effort to keep informed

about the personal economic interests of the judge’s spouse.’’ (Canon 3(E)(2)). Judges

must also ‘‘manage the judge’s investments and other financial interests to minimize

the number of cases in which the judge is disqualified.’’ (Canon 4(D)(4)).

B. Studies Reveal Remarkable Numbers of Stock Conflicts

Perhaps the most dramatic results were found in a study published in 1998 by

the Kansas City Star. The Star looked at district court judges in four courthouses

in four states and found 57 cases in which a judge had issued one or more orders

despite owning stock in one of the parties. Remarkably, in three of the four courts

examined, at least half of the judges ruled in one or more cases in which he or she

had a financial conflict of interest.

Following up on the Kansas City Star’s series, Community Rights Counsel conducted a study to identify conflicts of interest among active federal appellate judges.

Looking only at a single year and at rulings on the merits published in the Lexis

database, we identified eight judges that ruled in 17 cases in which they had a disqualifying financial interest (this study is available online at

www.communityrights.org).

The results of CRC’s study are particularly remarkable in light of the context in

which they occurred. The disclosure forms we reviewed were filed after the Kansas

City Star series and after receipt by each of the judges of an urgent letter from the

Judiciary’s Codes of Conduct Committee reminding them of the legal obligation ‘‘not

only to be informed about his or her personal financial interests but also to make

a reasonable effort to be informed about the personal financial interests of the

judge’s spouse and minor children.’’

Nevertheless, every judge identified in our study certified under penalty of criminal and civil sanctions that they had not performed any adjudicatory function in

which they had a disqualifying financial interest. For each judge, this certification

was apparently inaccurate and a simple search on Lexis (available to every federal

judge) would have revealed these conflicts. Moreover, each circuit court requires corporations to file a corporate disclosure form early in the appellate litigation process

to ensure that judges can easily flag any financial conflicts. Our study strongly suggests that many judges are not taking their obligation to avoid financial conflicts

seriously enough.

It is also troubling to note that in more than 80 percent of the conflict cases we

identified, the judges in question ruled at least partially in favor of their financial

interests. I do not view this as evidence that the judges were using their judicial

power to advance their pecuniary interests. I am convinced that in the vast majority

(if not all) of these cases, the conflict resulted from mere oversight. But I do find

it very troubling when judges hold a great deal of stock in major corporate litigants,

rule in favor of these litigants in most cases and, occasionally, rule in cases where

they have a stock conflict. It certainly adds grist to the mill of those who argue that

the judicial system is biased in favor of wealthy corporate interests.

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Anyone who believes that the problem of stock conflicts has been solved in the

aftermath of the Kansas City Star and Community Rights Counsel studies should

review an August 2001 story published by the Times Leader of Wilkes Barre, Pennsylvania involving Senior Judge Edwin Kosik of the Middle District of Pennsylvania.

Judge Kosik reportedly ruled in at least 10 cases in which PNC Bank appeared even

though he owned stock in the bank. Remarkably, Judge Kosik admitted ruling in

two bank cases in 1999 and 2000, after he realized the conflict and after he received

a stern warning from the Codes of Conduct Committee about avoiding conflicts.

Judge Kosik explained to the paper that his two rulings in favor of the bank required little decision-making and were not appealed. These explanations notwithstanding, Judge Kosik appears to have knowingly violated 28 U.S.C. § 455 and the

judiciary should take this apparent violation of federal law seriously.

III. JUDGES’ FINANCIAL DISCLOSURE FORMS ARE HARD TO OBTAIN AND OMIT REQUIRED

Information

A theme running through both the stock conflict and junkets stories is the fact

that judges’ financial disclosure forms are inordinately difficult to obtain and, too

frequently, omit required information.

A. The Disclosure Review Process Is Unduly Burdensome

Unlike the other two branches of government, which allow review and duplication

of financial disclosure forms on the same day they are requested, the judiciary’s Financial Disclosure Office notifies a judge in writing before granting access to a financial disclosure report. This advance notification seems contrary to the Ethics Reform Act of 1989, which establishes detailed procedures for the disclosure process

and makes no allowance for such advance notification. Because most litigants would

rather not risk upsetting a judge, advance notification creates a powerful deterrent

to many potential reviewers. It also takes at least a week, and frequently over a

month, for the Financial Disclosure Office to process requests for review of a financial disclosure form.

The Judiciary’s resistance to making public disclosures easily available to the

public is perhaps best illustrated by the Committee on Financial Disclosure’s decision to deny a request for disclosures filed by an online publisher called

APBnews.com. In late 1999, APBnews.com requested a copy of the 1998 disclosure

forms for each federal judge and magistrate with the intent of publishing them on

the Internet (something already done for members of Congress). APBnews.com paid

for the copies, but while waiting for the reports, the Financial Disclosure Committee

issued an indefinite moratorium on the public release of any disclosures, to anybody.

Eventually the Financial Disclosure Committee lifted the moratorium, but permanently barred APBnews.com from obtaining copies of the disclosure forms.

This decision was in direct contradiction to federal disclosure law, which specifically permits use of the forms by ‘‘news and communications media for dissemination to the general public.’’ As such, it drew bi-partisan ire on Capitol Hill, with

Senator Charles E. Grassley (R-Iowa) terming it ‘‘an offense to the openness that

helps define our system of government’’ and Senator Patrick Leahy (D-VT) stating:

‘‘The Judicial Conference should reconsider the scope of its decision, or Congress will

have to do so.’’ Editorial boards were even less kind, with major news organizations

terming the decision ‘‘laughable,’’ ‘‘infuriating,’’ ‘‘tortured,’’ and ‘‘embarrassing.’’

Eventually, after APBnews.com filed suit and Chief Justice Rehnquist intervened,

drafting a biting six-page memo critiquing the decision, the Judicial Conference

overruled the Committee’s decision.

B. Judges Routinely Omit Required Information

Those succeeding in obtaining judges’ financial disclosure forms are often disappointed in the accuracy and completeness of the information conveyed therein.

For example, after publishing its series on stock conflicts in April 1998, the Kansas City Star reviewed the financial disclosure forms filed in May 1998 by the 33

judges included in their study. The Star found that one out of every three reports

included information that by law should have been disclosed earlier. This new information led to the discovery of three additional conflicts of interest that were hidden

by omissions in prior disclosure forms.

CRC made similar findings with respect to disclosure of judicial junkets. The laws

and guidelines concerning what a judge must disclose to the public are clear and

simple. Both federal law and Advisory Opinion 67 require that judges ‘‘report the

reimbursement of expenses and the value of the gift on their financial disclosure reports.’’

Comparing financial disclosure forms with attendee lists prepared by FREE and

LEC, CRC determined that at least 22 federal judges failed to report FREE or LEC

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junkets, even after a September 1998 memorandum from the Financial Disclosure

Committee warning: ‘‘Judges who have accepted such trips and not reported them

on their financial disclosure forms in past years should immediately file amended

reports.’’ This represents approximately 11% of the judges that FREE and LEC report attending junkets during this same time period. Put another way, nearly one

out of every nine federal judges apparently failed to report a privately funded trip

even after a personal reminder about the requirements of federal law from the Disclosure Committee.

Under-disclosure is as large a problem as non-disclosure. Again despite clear mandates, judges’ financial disclosure reports routinely fail to report all the information

required. For example, in 1998, only 3 of the 34 judges who reported attending

FREE seminars attempted to estimate the value of the seminar gift, as required

under federal disclosure law.

IV. THE JUDICIAL DISCIPLINE SYSTEM ESTABLISHED IN 28 U.S.C. δ 372 IS NOT ACTING

AS AN EFFECTIVE DETERRENT

Federal judges are taking trips funded by corporate litigants, ruling despite financial conflicts and omitting basic information from financial disclosure forms. One

searching for an explanation need look no further than recent statistics from the

Administrative Office of the U.S. Courts regarding judicial disciplinary actions pursuant to the process established in 28 U.S.C. δ 372. These statistics, summarized

in an April 1998 story by the Kansas City Star, demonstrate that the judicial discipline system is not working effectively to deter ethical violations.

According to the Star, in fiscal years 1996 and 1997 more than 1,000 formal complaints were filed against federal judges nationwide. The chief judges’ decided that

not one of these cases required official discipline. Indeed, the chief judges failed to

send a single complaint on to the next level in the complaint process; investigation

by a committee of judges. In more than 450 cases, complainants appealed the dismissal of their complaint to the judicial council of an appellate court. These councils

rejected every appeal.

Undoubtedly, many of these complaints were filed by disgruntled litigants and

warranted no disciplinary action. But given the evidence that suggests that ethical

transgressions do occur with some regularity, it strains credibility to suggest that

not one of over 1,000 formal complaints warranted any official disciplinary action.

As every judge knows, the law only works if there are penalties for its violation.

In the case of transgressions by judges of legal and ethical standards, there appears

to be no effective deterrent. This is reflected in the persistence of stock conflicts and

non-disclosures despite explicit rules and clear reminders from the Administrative

Office. It is also reflected in the cavalier reaction of many judges to reports of improprieties. For example:

• Judge Tom Stagg of Louisiana responded to proof that he failed to disclose

a junket by telling the Washington Post: ‘‘The food was wonderful; the teachers were wonderful. If somebody doesn’t like it, I’m sorry.’’

• When the Kansas City Star confronted Judge Ancer Haggerty with evidence

that his financial disclosure form omitted basic information on his stock holdings, he refused to detail his actual holdings claiming: ‘‘You are entitled to

these reports, but that is all you are entitled to.’’

• When asked by the New York Daily News if he had read the financial disclosure form upon which the judge certified, inaccurately, that he had not ruled

in any cases where he had a financial conflict, Judge Whitman Knapp replied:

‘‘Heavens, no! It wouldn’t have any meaning to me.’’

V. CONCLUSION AND RECOMMENDATIONS:

I again want to commend the Committee for conducting this important oversight

hearing. As described above, there is substantial evidence that suggests that the

federal judicial misconduct and recusal statutes are not working effectively enough

to prevent erosion of the public’s trust and confidence in the judicial branch. Permit

me to leave you with several recommendations for using this Committee’s oversight

authority in responding to the problems posed by judicial junkets, stock conflicts

and non-disclosure.

Ban Junkets: In June 1998, several members of this Committee requested that

the judiciary reevaluate Advisory Opinion 67, which currently sets the standard for

judges on attending junkets. In September 1998, the Judicial Conference’s Committee on Codes of Conduct responded by asserting that the criterion established in

the Opinion was adequate to avoid the appearance of impropriety. Clearly this has

not proven to be the case. The time seems ripe for another request for reconsiderVerDate 11-MAY-2000 11:57 Jan 03, 2002 Jkt 000000 PO 00000 Frm 00015 Fmt 6633 Sfmt 6621 G:\WORK\COURTS\112901\76383.000 HJUD1 PsN: HJUD1
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ation of Advisory Opinion 67. There is also a pressing need for clarification by the

Committee concerning the type of inquiry Advisory Opinion 67 requires regarding

the corporations and foundations that are the ‘‘sources of funding’’ for FREE and

LEC trips.

I also note that in the 106th Congress, Senator John Kerry (D-MA) and Senator

Russ Feingold (D-WI) introduced legislation (S. 2990) that would have banned large

gifts associated with privately funded judicial seminars. They have promised to introduce a revised bill this term and to fight for its passage. I urge members of this

Committee to consider introducing legislation on this topic in the House.

Impose Penalties for Stock Conflicts and Non-Disclosure: There should be more effective penalties to enforce judges’ disclosure obligations and the ban on ruling in

cases in which a judge owns stock. For example, litigants discovering a stock conflict

within some statute of limitations period should be able to vacate any adverse rulings and seek a new hearing before a judge without a conflict.

Post Recusal Lists at Local Courthouses: The Judicial Conference’s Committee on

Financial Disclosure considered and rejected a proposal that would have required

judges to maintain an up-to-date ‘‘recusal list’’ available to litigants (without advance notification of the judge) at the clerk’s office. This Committee should ask the

Judicial Conference to reconsider implementation of this common-sense reform.

Make Financial Disclosure Forms Available without Advance Notification: The judiciary is currently seeking the extension of statutory authority (5 U.S.C. app. 4,

§ 105(b)(3)) for the Judicial Conference to prevent ‘‘the immediate and unconditional

availability of [financial disclosure reports]’’ where release of the forms could endanger a federal judge. This is sound public policy, but this statutory provision strongly

implies that where there is no danger to a particular judge, financial disclosure

forms should be immediately available. This is never the case with judges’ financial

disclosure forms. As described above, there is always a lengthy advance notification

process that significantly hinders public review of judges’ disclosure forms.

An alternative procedure that seems to address the legitimate concerns of the judiciary would be as follows. Judges should annually file two versions of their financial disclosure forms: one for the Financial Disclosure Office and one for public review. Judges should be permitted to redact from the public review copy any information that is truly personal and sensitive (i.e. the judge’s signature, any reference to

the names of the judge’s children, etc). These public review copies should then be

made available immediately upon request. If the Judiciary, in consultation with the

United States Marshal Service, decides that release of even this public review copy

could endanger a judge, they should be permitted to further redact the report only

to the extent necessary to protect the judge and only for as long as the danger to

the judge exists.

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Mr. COBLE. Now I am going to skip over you, Mike, because I

have indicated earlier, we have been assigned two additional Members of this Subcommittee to replace vacancies that occurred when

Congressman Scarborough and Congressman Hutchinson departed.

The distinguished gentlelady from Pennsylvania, Ms. Hart, is coming aboard what Mr. Delahunt and Mr. Berman and I view as the

best Subcommittee of the House Judiciary Committee Subcommittees.

Ms. Hart, I have upstaged you, but I know you wanted to recognize your former professor. So why don’t you do that at this time,

and we will hear from Professor Hellman.

And then we will get back to you, Mr. Remington.

Ms. HART. Thank you, Mr. Chairman. I just wanted to say, it is

wonderful to be on this Committee. I was hoping that I would get

to choose it on the first round. I was, unfortunately, too far at the

end of the line, not that I am pleased that Representatives Hutchinson and Scarborough had to leave, but I am not bothered by the

fact that there were vacancies on the Committee and I was able to

fill one. So it is an honor to be here, Mr. Chairman.

It is also an honor to introduce to the Committee and those here

today a gentleman whose reputation has been, I think, widely

known throughout the legal world for quite a while. His reputation,

when I was a law student, was also widely known.

I was a student at the University of Pittsburgh during Arthur

Hellman’s tenure. While he is still teaching law, he has somehow

found the time to become quite a distinguished authority on court

systems, the Federal court system, as well, especially. And he is a

professor of law at the University of Pittsburgh and distinguished

faculty scholar at the University Pittsburgh School of Law.

I graduated from that university’s school of law an unnamed

number of years ago and have found that in my career of public

service, my law degree and the things that I learned there, especially as far as procedural issues, have served me quite well. I was

a State Senator for 10 years, as I know Professor Hellman knows

well, and also now I am a freshman here.

But I must note that Professor Hellman, though widely known

and widely published, has also been—and I am not making this

up—widely loved by the students at the University of Pittsburgh

School of Law, because those who study the law know, it can be

quite dry. He does have a way—by the way, I was not one of his

students, but several of my closest friends were—and was quite an

entertaining and engaging professor. And that is a very good thing.

I want to thank you for taking the time to be with us today to

share your knowledge with us on the Committee.

And I would like to thank the Chairman for indulging me. Thank

you.

Mr. COBLE. I thank the gentlelady. As I said earlier, Judge

Osteen was my former boss and was always very evenhanded and

fair with me, so I have no score to settle with him.

Professor, if you were not evenhanded and fair with the lady

from Pennsylvania, that may be your problem. But we will recognize you for 5 minutes, Professor.

39

STATEMENT OF ARTHUR D. HELLMAN, PROFESSOR OF LAW,

UNIVERSITY OF PITTSBURGH SCHOOL OF LAW

Mr. HELLMAN. Thank you, Mr. Chairman. And, of course, I did

say in my statement that I do not speak for any institution or official body, but I think I do speak for the University of Pittsburgh

School of Law in saying how proud we are to have one of our graduates not only in the United States House of Representatives, but

serving on the Judiciary Committee and this particular very important Subcommittee.

In the Judicial Conduct and Disability Act of 1980, Congress provided a mechanism for identifying and correcting judicial misconduct without intruding on judicial independence. In my view,

the basic framework of that act is sound. But even the best of systems require reexamination to consider the lessons of experience

and to meet changes in conditions or even perceptions over a period

of time.

Now, in my written testimony, I’ve suggested some amendments

to the statute that are grounded in the experience of, now, more

than 20 years. These involved matters of detail, although I would

not call them technicalities. They are more than that; and I hope

we will have a chance to discuss these in the question period. But

I would like to turn now to some of the broader issues raised by

the statute.

A good place to begin is with the statistical report published each

year by the Administrative Office. Now, I have attached to my

statement as Table 1 a compilation of the AO’s figures over the last

6 years. And one thing stands out from those figures: The overwhelming majority of complaints are dismissed, either by the chief

judge or by the judicial council reviewing the chief judge’s order.

I think a natural reaction to those figures would be: surely Federal judges, good as they generally are, can’t be that good. Either

some of the would-be complainants are not taking advantage of the

statutory procedures or the courts are sometimes failing in their

duty to act when judges fail to live up to the high standards we

expect of them.

Now, neither of those possibilities can be ruled out, but before we

jump to conclusions, I think it is important to emphasize that the

formal mechanisms of the statute are not the only methods for

dealing with misconduct or disability in the Federal judiciary.

First, the figures do not reflect the informal corrective processes

that may take place in the absence of a formal complaint. And that

is a fascinating aspect of this system.

Second, many instances of judicial misconduct are dealt with

through appellate review in particular cases. A good example is the

Microsoft case that made the headlines just a few months ago. I

also believe that in the long term, the most effective and efficient

method of maintaining integrity in the Federal judiciary lies in rigorous scrutiny at the appointment stage, and we have that rigorous

scrutiny today.

Yet, having said all that, I also have to say that the statistical

record is not as reassuring as it could be and as it should be. And

the reason is that the judiciary has not done enough to make the

complaint process visible.

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Now, it seems to me that there is one step that could go a long

way toward increasing that visibility. The suggestion is that the

Web site of every Federal court should include a prominent link to

the rules and the forms that govern the filing of a complaint under

section 372(c) concerning a judge of that court.

I think the Internet can also be helpful in many other ways, but

I see that my time is almost up and there is one other matter I

would like to touch upon. This hearing, which deals with judicial

disqualification, is as good an opportunity as there will ever be to

call the Subcommittee’s attention to a minor statutory malfunction

that otherwise is going to remain forever below everybody’s radar.

Section 46(c) of title 28 provides that en banc rehearing can be

ordered by a majority of the circuit judges who are in regular active service. And the circuits are divided on whether majority

means a majority of all active judges—that is to say, an absolute

majority—or a majority of the judges who are not recused. Five of

the circuits follow an absolute majority rule. In those circuits,

recused judges are having an effect on case outcomes that, by definition, they should not be having. And this is hardly a major problem but it is one that is easily corrected.

I would urge the Subcommittee to read the opinion of Judge

Carnes that I have cited in my statement. He analyzes the issue

in detail. And I would urge you to take appropriate action, perhaps

by drafting an amendment to be included in the next omnibus judiciary legislation.

In conclusion, these are a very important set of issues that have

been raised here. And I hope we have the opportunity to ventilate

them in detail.

Thank you, Mr. Chairman.

Mr. COBLE. Thank you, Professor.

[The prepared statement of Mr. Hellman follows:]

PREPARED STATEMENT OF ARTHUR D. HELLMAN

Mr. Chairman and Members of the Subcommittee:

I appreciate your invitation to express my views at this oversight hearing on federal judicial misconduct and disqualification. By way of personal background, I am

a professor of law and Distinguished Faculty Scholar at the University of Pittsburgh

School of Law. Among other subjects, I teach courses in Federal Courts and Constitutional Law. I have published numerous articles, monographs, and books dealing

with various aspects of the work of the federal courts.

Over the years, I have been privileged to participate in a number of institutional

enterprises aimed at improving the administrative of justice, both state and federal.

I served as Chair of the Civil Justice Reform Committee of the American Judicature

Society, and I supervised a distinguished group of scholars in analyzing the innovations of the Ninth Circuit and its court of appeals. More recently, I served on the

Ninth Circuit Court of Appeals Evaluation Committee appointed by Chief Judge

Procter Hug, Jr. Of course, in my testimony today I speak only for myself; I do not

speak for any court or other institution.

This statement is in six parts. Part I introduces the statutory scheme for judicial

discipline; it also calls attention to some of the resources available to the Subcommittee as it pursues its oversight responsibilities. Part II discusses possible

amendments to the existing statute that warrant consideration at this time. Part

III addresses some of the longer-range issues raised by the statute, and Part IV provides a brief assessment of the current operation of the system. Part V deals with

judicial disqualification. It offers a better approach to disclosing judges’ conflicts of

interest, and it flags a statutory ambiguity involving recusal by court of appeals

judges. The statement concludes with brief comments on the Internet as a tool for

safeguarding judicial integrity without interfering with judicial independence.

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I. INTRODUCTION

A. Section 372(c) and the delicate balance

The federal judicial system is the envy of civilized nations throughout the world.

Its stature rests in large part on two essential features: judicial independence and

judicial integrity. For the most part, judicial independence and judicial integrity reinforce another. In one respect, however, there is a tension between the two. Because human beings are fallible, it is generally accepted that some mechanism is

required to identify and correct instances in which particular judges have strayed

from the norms of ‘‘good behavior.’’ But if the process is too bureaucratic, too heavyhanded, or too quick to move to formal adjudication, it poses a threat to the judges’

independence.

In the Judicial Conduct and Disability Act of 1980 (hereinafter ‘‘the Act’’), Congress sought to reconcile the competing values. I believe that the Act—codified in

section 372(c) of the Judicial Code—strikes an appropriate balance, and that the

basic framework established in the statute is sound. But no product of human invention can be perfect. Moreover, even the best of systems may require modification

to meet changes in conditions or perceptions over a period of time.

One element of the compromise that produced section 372(c) was the assurance

of continuing legislative oversight. More than a decade has now passed since Congress last conducted a thorough examination of the operation of the system. Additionally, the emergence of the Internet as a ubiquitous vehicle for communication

calls for rethinking of procedures established in the pre-Internet era. It is therefore

appropriate and timely for this Subcommittee to conduct an oversight hearing on

the operation of the Act and related issues of judicial misconduct and judicial discipline. And I am grateful for the opportunity to take part in this important endeavor.

Section 372(c) raises a wide range of issues, including deep questions of constitutional law associated with the process of impeachment and the possibility of prosecuting federal judges under criminal laws. I will concentrate here on the more

mundane—and more common—issues growing out of the everyday operation of section 372(c) and the work of judges, chief judges, and circuit councils.

B. Resource materials for Congressional oversight

In pursuing its oversight responsibilities on issues of judicial misconduct and judicial discipline, the Subcommittee can benefit from the work of several institutions

that have labored in this field over the past 20 years.

First, the Judicial Conference of the United States has promulgated Illustrative

Rules Governing Judicial Misconduct and Disability. These Illustrative Rules address many procedural and substantive issues that are not addressed by the statute

itself. They have been revised several times over the years, and they reflect the lessons of experience nationwide.

Second, each of the federal judicial circuits has adopted rules based on the Illustrative Rules. As it happens, the circuit I am most familiar with is the Ninth Circuit. The Ninth Circuit’s rules, available on the circuit’s web site, http://

www.ce9.uscourts.gov/, include detailed commentaries on the purpose and operation

of the rules. I have drawn on the Ninth Circuit’s rules in preparing this statement.

References are to the version dated August 21, 2000.

Third, the National Commission on Judicial Discipline and Removal, established

by Congress in late 1990, submitted a detailed report in August 1993 on a variety

of issues relating to the 1980 Act and problems of judicial misconduct. The Commission was chaired by Robert W. Kastenmeier, former Chairman of this Subcommittee

and author of the Judicial Conduct and Disability Act of 1980. The Commission’s

report is published in 152 F.R.D. 265 (hereinafter ‘‘NCJDR Report’’).

Fourth, the Federal Judicial Center, the research arm of the federal judiciary, carried out an empirical study at the behest of the National Commission. See Jeffrey

N. Barr & Thomas E. Willgang, Decentralized Self-Regulation, Accountability, and

Judicial Independence Under the Federal Judicial Conduct and Disability Act of

1980, 142 U. Pa. L. Rev. 25 (1993) (hereinafter ‘‘FJC Study’’). This is a thorough,

objective, and thoughtful piece of research that is enormously useful in showing how

the Act has been implemented at the everyday operational level. I have drawn heavily on it here.

One other preliminary point warrants mention at this stage. Section 372(c) as currently written generally uses masculine pronouns. For consistency and ease of reference, I have followed suit here. If the statute is amended, Congress could take

the opportunity to make all references gender-neutral.

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II. POSSIBLE AMENDMENTS TO SECTION 372(C)

For most of the nation’s history, the only formal procedure for dealing with misconduct by federal judges was the cumbersome process of impeachment. Criminal

prosecution was a theoretical possibility, but until 1980, ‘‘no sitting federal judge

was ever prosecuted and convicted of a crime committed while in office.’’ NCJDR

Report at 326.

That era ended with the enactment of the Judicial Councils Reform and Judicial

Conduct and Disability Act of 1980 (to give it its full name). The 1980 law, codified

as section 372(c) of the Judicial Code, established a new set of procedures for judicial discipline and vested primary responsibility for implementing them in the federal judicial circuits. Minor changes were made in later years, notably in the Judicial Improvements Act of 1990.

In enacting section 372(c), Congress opted for a system that has aptly been described as ‘‘decentralized self-regulation.’’ See FJC Study at 29. I see no reason to

revisit that decision, but I do think that some fine-tuning is in order. The suggestions in Part II are drawn largely from the Federal Judicial Center study and from

the rules adopted by the Judicial Council of the Ninth Circuit in furtherance of the

Act.

A. Recognizing authority of chief judge to conduct limited inquiry

Ordinarily, the process delineated in section 372(c) begins with the filing of a complaint about a judge with the clerk of the court of appeals for the circuit. The clerk

must ‘‘promptly transmit’’ the complaint to the chief judge of the circuit. The chief

judge, after ‘‘expeditiously reviewing’’ the complaint, has three options. He can dismiss the complaint; he can ‘‘conclude the proceeding if he finds that appropriate corrective action has been taken or that action on the complaint is no longer necessary

because of intervening events;’’ or he can appoint a special committee to investigate

the allegations.

The Act says nothing about the procedures the chief judge may or must follow

before determining which of these steps to take. However, for at least a decade, the

Illustrative Rules have recognized the power of the chief judge to conduct a limited

inquiry as part of the process of ‘‘expeditious review.’’ The rules adopted by the various circuits also embody this authority. For example, the Ninth Circuit’s Rule 4(b)

provides:

In determining what action to take, the chief judge may conduct a limited inquiry for the purpose of determining (1) whether appropriate corrective action

has been or can be taken without the necessity for a formal investigation, and

(2) whether the facts stated in the complaint are either plainly untrue or are

incapable of being established through investigation. For this purpose, the chief

judge may request the judge whose conduct is complained of to file a written

response to the complaint. Such response will not be made available to the complainant unless authorized by the responding judge. The chief judge or his or

her designee may also communicate orally or in writing with the complainant,

the judge whose conduct is complained of, and other people who may have

knowledge of the matter, and may review any transcripts or other relevant documents.

I agree with the Judicial Conference, the circuits, and the National Commission

that authority to conduct a limited inquiry is implicit in the existing statute. For

example, as already noted, the statute provides that the chief judge ‘‘may conclude

the proceeding if he finds that appropriate corrective action has been taken.’’ It is

hard to see how the chief judge could make such a finding without undertaking at

least some investigation into the facts of the complaint.

Nevertheless, I believe it would be desirable to amend the Act to recognize the

power explicitly. By hypothesis, the Act deals with matters of great sensitivity.

Something as important as the power of the chief judge to conduct a limited factual

inquiry should not be left to implication from other statutory language.

A second reason for amending the Act is that Congress can also make explicit the

limitations on the power. For example, the amendment could make clear that the

power to conduct a limited inquiry does not include the power to resolve issues of

credibility. If the validity of a complaint depends on whether one believes an allegation that is not inherently incredible or refuted by objective evidence, the chief judge

should appoint the special committee required by the statute.

B. Recognizing authority of chief judge to dismiss after limited inquiry

Under § 372(c) as it now stands, the chief judge may dismiss a complaint for any

of three reasons:

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(i) [The complaint is] not in conformity with paragraph (1) of this subsection.

[Paragraph (1) provides: ‘‘Any person alleging that a circuit, district, or bankruptcy judge, or a magistrate, has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts, or alleging

that such a judge or magistrate is unable to discharge all the duties of office

by reason of mental or physical disability, may file with the clerk of the court

of appeals for the circuit a written complaint containing a brief statement of

the facts constituting such conduct.’’]

(ii) [The complaint is] directly related to the merits of a decision or procedural ruling, or

(iii) [The complaint is] frivolous. (Emphasis added.)

Experience suggests that a fourth category should be added, and that the third

category should be delineated more fully.

The proposed fourth category would carry forward the suggestion (discussed

above) that the chief judge be explicitly authorized to conduct a limited inquiry. If

the limited inquiry demonstrates that the allegations lack any factual foundation or

are conclusively refuted by objective evidence, the chief judge should be authorized

to dismiss the complaint.

This suggestion draws upon both the Illustrative Rules and the Federal Judicial

Center study. The FJC study recommended that the chief judge be authorized to

dismiss the complaint if the limited inquiry demonstrates ‘‘that the allegations lack

any factual foundation.’’ FJC Study at 63. However, I think the statute should be

more explicit in addressing what may be a common situation: objective evidence uncovered by the inquiry conclusively refutes the allegations of the complaint. For example, the complaint may assert that the judge used an ethnic slur or other offensive language. An audio tape of the proceeding may demonstrate beyond question

that the judge did not use the language attributed to him.

This proposal, like the first one, would largely codify present practice. For example, the Ninth Circuit’s rules provide that the term ‘‘frivolous’’ includes ‘‘alleging

facts that are shown by a limited inquiry [to be] plainly untrue [or] lacking sufficient evidentiary support either (i) to raise an inference that some kind of cognizable

misconduct has occurred, or (ii) to warrant further investigation.’’ (Emphasis added.)

I do not take issue with this interpretation of section 372(c). It is not unreasonable to say that an allegation that is ‘‘plainly untrue’’ or that ‘‘lack[s] sufficient evidentiary support’’ falls within the realm of the ‘‘frivolous.’’ Nevertheless, there are

at least three reasons why it is desirable to amend the statute to establish a separate category for dismissals based on limited inquiry.

First, the Ninth Circuit’s rules, like those of other circuits, may stretch the term

‘‘frivolous’’ somewhat beyond its generally accepted meaning. As the FJC study

pointed out, ‘‘complainants may more commonly understand the term—to refer to

complaints that contain insufficient factual allegations to warrant inquiry. A dismissal for frivolousness, therefore, could readily be misunderstood as an indication

that the chief judge did not take the complaint’s allegations seriously.’’ FJC Study

at 63.

Second, as also noted by the FJC study, a misunderstanding of that kind would

be particularly unfortunate when a complaint alleges ethnic, gender, or some other

kind of bias. ‘‘A dismissal as ‘frivolous’ might leave the unseemly impression that

allegations of that kind do not concern the judiciary.’’ Id.

Third—and generalizing from the preceding point—I think it is desirable to distinguish between dismissals based on the complaint alone and those based on evidence outside the complaint. This point is further developed in Section C, immediately below.

C. Specifying other bases for dismissal identifiable on the face of the complaint

In addition to the language quoted above, the current Ninth Circuit rules define

‘‘frivolous’’ to include ‘‘making charges that are wholly unsupported or alleging facts

that are shown by a limited inquiry [to be] (A) plainly untrue, (B) incapable of being

established through investigation, or (C) lacking sufficient evidentiary support either (i) to raise an inference that some kind of cognizable misconduct has occurred,

or (ii) to warrant further investigation.’’ 9th Cir. R. 4(c)(3).

While I respect the Ninth Circuit’s efforts to be comprehensive and meticulous in

giving content to the term ‘‘frivolous,’’ I am concerned that the formulation improvidently intermingles reasons for dismissal that can be identified from the complaint

alone and those that require some consideration of materials outside the complaint.

Lawyers are familiar with the distinction between a dismissal on the pleadings

and the grant of summary judgment. The distinction is reflected in Rule 12(c) of the

Federal Rules of Civil Procedure:

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If, on a motion for judgment on the pleadings, matters outside the pleadings

are presented to and not excluded by the court, the motion shall be treated as

one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

For two reasons, recognition of the distinction is especially appropriate here. First,

the complainant has a legitimate interest in knowing whether his complaint was

found wanting on its face or whether the chief judge relied on other evidence in

reaching his conclusion. Second, if the matter proceeds to review by the judicial

council (see section D, below), the reviewing body should not have to speculate as

to whether the dismissal was based on the complaint alone.

In this light, I think it is desirable to amend subsection (iii) of § 372(c)(3)(A) by

specifying other reasons for dismissal that can be identified on the face of the complaint. Drawing on the Ninth Circuit’s rules and commentary, I suggest that the

provision might authorize the chief judge to dismiss the complaint if it ‘‘is frivolous,

if it does not include sufficient evidence to raise an inference that misconduct has

occurred, or if the allegations are incapable of being established through investigation.’’ The amendment should make clear that dismissals in these categories are distinct

from dismissals after limited inquiry. By the same token, the judicial councils of the

circuits, in submitting the reports required by 28 USC § 332(g), should give separate

tallies for dismissals after limited inquiry and dismissals based on the complaint

alone. The Director of the Administrative Office should do so as well in the summaries published annually in accordance with 28 USC § 604(h)(2). This additional

information will shed important light on the operation of the system and thus will

assist Congress in the performance of its oversight function.

D. Authorizing review by a committee of the judicial council

Under § 372(c)(10), a complainant who is dissatisfied with the chief judge’s order

dismissing the complaint or terminating the proceeding may seek review of the

order by filing a petition addressed to the judicial council of the circuit. The judicial

council then considers the petition under rules adopted pursuant to § 372(c)(11).

That paragraph authorizes each judicial council to ‘‘prescribe such rules for the conduct of proceedings under this subsection, including the processing of petitions for

review, as [the council] considers to be appropriate.’’ Nothing in section 372(c) explicitly authorizes the council to delegate the review

function to a smaller group within the council, and it appears that in most circuits

all members of the council participate in the process. However, at least one circuit

reads section the statute as authorizing delegation. As reported in Rule 7 of the

rules adopted by the Fifth Circuit, ‘‘By standing resolution the judicial council may

delegate the review process to rotating panels drawn at random with power to act

on behalf of the full council.’’ (The rules can be found at the court’s web site. See

http://www.ca5.uscourts.gov/Clerk/ClerksOffice.cfm.)

Reasonable people can disagree as to whether the Fifth Circuit’s ‘‘standing resolution’’ is authorized by the statute. In any event, the idea is a good one. The Federal

Judicial Center study suggested that the Act ‘‘should be amended to permit petitions

for review to be determined by a standing or rotating three-judge panel of the judicial council, rather than by the entire council.’’ FJC Study at 194. I endorse this

suggestion, with one modification: I would require that the review panel consist of

at least three members of the council (one of whom must be a district judge), but

I would not specify the number in the statute. Some councils may prefer a larger

review body; they should not be denied that option.

The reason for allowing panel review is twofold. First, some of the judicial councils are quite large; for example, the Fifth Circuit’s has 19 members. Requiring 19

judges to review a chief judge’s order dismissing a complaint is not a good use of

scarce judicial resources.

Second and more important, vesting the review function in the entire council risks

diffusing responsibility. In contrast, if the task is assigned to a group of 3 or 5

judges, those judges can concentrate on the tasks and are likely to put more time

and effort into the review process. (For further discussion, see FJC Report at 161–

63.)

E. Reorganizing section 372(c)

In the current version of section 372(c), the provision governing dismissals by the

chief judge is found in paragraph (3), while the provision authorizing review of such

orders by the circuit council is found in paragraph (10). If Congress amends the Act,

I suggest that the statute should be reorganized so that closely related provisions

are arranged in a logical sequence.

45

In fact, I would go further. As noted at the outset, the provisions of the 1980 Act

establishing new procedures for dealing with allegations of misconduct by federal

judges were codified in section 372(c) of the Judicial Code. It seems anomalous that

matters so important and wide-ranging would be incorporated into Title 28 as a single subsection of an existing section. I think these provisions warrant their own section, and indeed their own chapter, in the Judicial Code. Separate chapters have

been established for ‘‘executions and judicial sales’’ (Chapter 127), ‘‘Moneys paid into

court’’ (Chapter 129), and ‘‘Attachment in postal suits’’ (Chapter 173). Surely judicial

discipline should be put on an equal footing from an organizational perspective.

This is partly a matter of practicality; a separate chapter, with separate catchlines for each section, would be easier to locate and navigate. But there is also symbolic value in placing the provisions on judicial discipline in a chapter devoted to

that subject alone.

III. OTHER ISSUES WARRANTING ATTENTION

The proposals in Part II (other than the suggestion for reorganizing and relocating section 372(c)) draw on existing rules and practices in the circuits as well as

the Federal Judicial Center study. For that reason, I offer them with some confidence. (Of course, the particular language should be chosen with care.) Other aspects of the process also warrant scrutiny by the Subcommittee; however, the evidence now available does not point to the need for statutory revision at this time.

I discuss them here because I believe it is worthwhile to put the issues on the table

as the Subcommittee pursues its oversight responsibilities.

A. Inclusion of reasons for dismissing complaints

Section 372(c)(3) states that the chief judge may dismiss a complaint ‘‘by written

order stating his reasons.’’ However, the Federal Judicial Center study found that

‘‘not all chief judges’ orders of dismissal have provided a statement of the allegations

of the complaint and the reasons, as opposed to the conclusions, supporting its dismissal.’’ In fact, three of the eight circuits in the study ‘‘had long-standing practices

of issuing conclusory form orders to dispose of insubstantial complaints.’’ FJC Study

at 80.

Even when the authors of the study looked only at ‘‘arguably meritorious allegations,’’ they found that the chief judges’ orders were not always ‘‘responsive.’’ (In assessing ‘‘responsiveness,’’ the authors ‘‘looked for whether the chief judge restated

[the particular] allegation and responded to it and whether the chief judge stated

conclusions or specific reasons for the conclusions.’’ FJC Study at 82.)

The authors of the study anticipated that all circuits would soon be moving to a

system under which the chief judge would articulate reasons for dismissing a complaint. That was in 1993. Unfortunately, as far as I am aware, there is no published

information that tells us whether this has in fact occurred. If it has, there is no need

to do anything. If chief judges in one or more circuits continue to issue ‘‘conclusory

form orders,’’ that is a matter of concern. This is so for several reasons. Among

them:

• When a complaint is dismissed with a conclusory form order, the complainant

may lack confidence that the chief judge has actually considered the grievance. This will reinforce the sense of mistrust that often underlies the filing

of a complaint against a judge.

• As pointed out by the National Commission, a non-conclusory statement ‘‘may

be critical—to the understanding of those engaged in oversight or evaluation.’’

NCJDR at 351.

If some complaints are still being disposed of with a conclusory form order, either

the Judicial Conference or Congress should consider imposing a requirement that

the chief judge state the reasons for a disposition adverse to the complainant.

B. Visibility of the disciplinary mechanism

One purpose of the mechanism established by the 1980 Act is, of course, to foster

public confidence in the federal judiciary. To that end, the mechanism must be visible. Visibility in this context entails two overlapping elements: the availability of the

process must be made known to potential complainants, and the results of the process must be made known to all who are interested in the effective operation of the

judicial system. On the available evidence, there is a real question whether these

goals are being realized. For example:

• A spot check indicates that the rules governing complaints under section

372(c) are available on the web sites of most of the courts of appeals, but at

the district court level the record is much more hit-and-miss. This may be beVerDate 11-MAY-2000 11:57 Jan 03, 2002 Jkt 000000 PO 00000 Frm 00049 Fmt 6633 Sfmt 6621 G:\WORK\COURTS\112901\76383.000 HJUD1 PsN: HJUD1
46

cause complaints are filed with the clerk of the court of appeals, but I think

that most people would expect to find information about filing complaints concerning a trial judge on the web site of the court on which that judge sits.

• The web site of the federal judiciary gives a brief answer to the question,

‘‘How do I file a complaint against a judge?’’ However, the page does not include links to anything that might help—the statute, the Illustrative Rules,

a form for filing a complaint, or any other explanatory material. See http:/

/www.uscourts.gov/faq.html.

• The orders and memoranda filed by the chief judges of the various circuits

are available only at the clerk’s office of the circuit where they were issued

and at the Federal Judicial Center, to which copies are sent. Anyone wanting

to study these dispositions systematically would face formidable logistical obstacles.

• The Federal Judicial Center study concluded, after an examination of published orders, that ‘‘[d]issemination of information about interpretations of the

Act—seems notably absent.’’ FJC Study at 88. That report was completed in

1993, but a follow-up search on Westlaw using the same query suggests that

the picture has not changed.

It is understandable that judges do not wish to shine the spotlight on judicial misconduct or disability, even when the overwhelming majority of complaints are plainly without merit. However, to the extent that the low visibility is the result of conscious choice (rather than indifference or inadvertence), I think the policy is misguided. A telling vignette comes from the FJC Study (at 129). A chief judge reported:

After a newspaper article accusing the judiciary of a cover-up in [a special committee matter which resulted in a private, rather than a public, reprimand], a

local reporter wanted to look at 372(c) files. We were able to show him files of

reasoned orders. He was very surprised. I think he went away thinking this was

an honest ship.

Yet even if the picture were not so positive, visibility would still be essential to

the success of the system. This is so for both instrumental and symbolic reasons.

At a practical level, the courts benefit if they learn about problems at the earliest

possible stage, and complaints under § 372(c) can help. But some meritorious complaints will never be filed if the existence of the process is insufficiently publicized.

The courts can also benefit in another way—by learning how other courts are handling allegations of misconduct or disability.

Perceptions are also important. Today, the federal judiciary is highly respected.

The spate of criminal prosecutions of federal judges that aroused alarm at the time

of the National Commission report is happily behind us. But that only means that

this is a time for building confidence. A visible complaint process contributes significantly to that goal. Without it, we have no way of knowing whether a paucity of

meritorious complaints truly reflects a healthy system or simply a lack of awareness

that a complaint procedure exists. Here are some suggestions for enhancing the visibility of the process:

• At a minimum, the web site of every federal court should include a prominent

link to the rules and forms for filing a complaint under § 372(c) concerning

a judge of that court.

• Chief judges and judicial councils should send more of their non-routine dispositions of § 372(c) complaints for on-line publication by Westlaw, Lexis,

Findlaw, and other services.

• Consideration should be given to asking the courts to send routine dispositions to the Federal Judicial Center in electronic form, so that the dispositions (or at least a selected group) can be made available easily to other

courts, to oversight committees in Congress, and to researchers.

• The Federal Judicial Center should be encouraged to conduct a follow-up

study to the one completed in 1993. This study need not be as elaborate or

comprehensive; what we need above all is an analysis of the dispositions already on file at the Center.

Notwithstanding what I have said about enhancing the visibility of the complaint

process, one other point deserves emphasis. The formal mechanisms of section 372(c)

are not the only methods for dealing with misconduct or disability in the federal

judiciary. These other methods will be discussed briefly in Part IV of this statement.

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C. Confidentiality in the era of the Internet

As the National Commission observed in its report, some of the most controversial

issues surrounding the enactment and implementation of section 372(c) have involved concerns about confidentiality. See NCJDR Report at 349–51. In its current

version, the statute requires that confidentiality be maintained in ‘‘investigations’’

(paragraph (14)), but it does not address issues of confidentiality in cases where no

special committee is appointed. The latter, of course, encompass the vast majority

of complaints.

The Illustrative Rules fill this gap in two ways. Rule 16 lays down a broad rule

of confidentiality for all proceedings under the Act. Rule 17 provides that when a

complaint has been finally disposed of, the supporting memoranda will be made

available for public inspection at the clerk’s office and copies will be sent to the Federal Judicial Center; however, in all dismissals and in most other proceedings, ‘‘the

publicly available materials will not disclose the name of the judge complained

about without his or her consent.’’

The Federal Judicial Center study found that maintenance of confidentiality was

a serious problem—not because of anything the judges did, but because outsiders

are not bound by rules of confidentiality. ‘‘As a practical matter,’’ the study noted,

‘‘a complainant can call a press conference (as many have), disclose the contents of

the complaint, and discuss the allegations and the process.’’ The study quoted one

chief judge: ‘‘If there’s a serious allegation, the reality is that confidentiality is unlikely.’’ FJC Study at 178–79.

The development of the Internet has substantially exacerbated the problem of

maintaining confidentiality. This is so not only when allegations are ‘‘serious,’’ but

also when they are plainly appropriate for dismissal. Today it is not necessary to

‘‘call a press conference;’’ a complainant—or anyone else—can place documents on

a web site, and they will be instantly available to anyone in the world.

To get a sense of what is available, I did a search on Google. I found less material

than I expected—a few complaints and a few orders. One document purported to

be an order of dismissal that identified the judge who was the subject of the complaint. The version of the order on file at the Federal Judicial Center does not identify the judge.

On the basis of current information, it does not appear that disclosure of section

372(c) material presents a problem that requires immediate attention. Others at

this hearing may have different experiences that suggest a greater urgency. Of

course the possible remedies are substantially limited by the First Amendment’s

protection of rights of expression.

D. Sharing of the initial review responsibility

One chief judge suggested to the authors of the FJC study that the Act be amended to authorize chief judges to delegate review of complaints to another judge. FJC

Study at 186. The judge explained:

The chief judge’s job is very time consuming; anything that can be delegated

should be. There’s no reason the chief judge must be involved in every one of

these complaints. The chief judge should be able to decide whether a complaint

must be looked at more carefully. The chief judge should hang on to anything

that’s close or controversial, but most are not; the chief judge could delegate

those.

As long as the volume of complaints remains at its current modest levels, it is

hard to justify authorizing the chief judge to delegate part of the review function.

Nevertheless, I think the idea is worth keeping on the table—though not necessarily

for the reasons quoted above.

First, a central feature of the system of decentralized self-regulation established

by the Act is the opportunity for the chief judge to facilitate action that leads to

the correction of errant behavior. To be effective, this process may require interpersonal skills that will not always be a chief judge’s strong point. (I hasten to add

that this comment is not based on the performance of any of the chief judges whose

work I have observed.) If another court of appeals judge—perhaps a highly respected senior judge—is willing and able to take on part of the responsibility, there

is much to be said for allowing the delegation.

Second, if the judiciary takes vigorous steps to increase the visibility of the

§ 372(c) process, this may result in a substantial increase in the number of complaints filed. Under those circumstances, it would be useful if the chief judge, especially in a large circuit, could delegate part of the review work to another judge.

If Congress were to pursue this suggestion, it might be desirable to include a requirement that any delegation be approved by the judicial council of the circuit.

48

IV. THE SYSTEM TODAY

Each year, the Director of the Administrative Office of United States Courts publishes a report that tabulates the number of judicial complaints filed and concluded

during the preceding year. Table I (attached) presents the data for the last six

years. Three things stand out.

First, the number of complaints filed against judges peaked in 1998, with an astonishing 52% increase over 1997. After that, the number has gone down in each

successive year. The Director of the Administrative Office has attributed the jump

in 1998 to ‘‘the use of relatively new Internet and fax-on-demand services, which

made information on procedures for filing complaints more widely accessible.’’ 1999

Annual Report at 40. (One wonders, then, why the number dropped so substantially

in succeeding years.)

Second, the overwhelming majority of complaints are dismissed, either by the

chief judge or by the judicial council upon review of the chief judge’s order. In 1999,

for example, of the 831 complaints that were concluded, only 15 were not dismissed—less than 2%. This includes 2 complaints that were ‘‘withdrawn;’’ we do not

know what the circumstances of withdrawal were.

Third, the pace of activity has picked up in the last three years. Ten complaints

were considered by circuit investigative committees, compared with a total of 3 in

the preceding three years. But the numbers are too small, and the information too

sparse, to enable us to say that a distinctly different pattern has emerged. Certainly

the proportion of complaints that are not dismissed remains very low.

A natural reaction to these figures would be: surely federal judges—good as they

generally are—cannot be that good. Either some would-be complainants are not taking advantage of the procedures of section 372(c), or the chief judges and judicial

councils are sometimes failing in their duty to act when judges fall short of the

standards we expect of them.

Neither possibility can be ruled out. Moreover, the small number of non-frivolous

complaints carries less weight than it would if the courts had been more energetic

in publicizing the existence of the complaint process. But there are also more benign

explanations that may account for the low numbers.

First, the figures do not reflect the informal corrective processes that may take

place in the absence of a formal complaint. One of the most important findings of

the Federal Judicial Center study is that informal processes often operate very effectively to deal with matters that fall within the potential reach of section 372(c). The

study quotes comments by two former chief judges that capture the experience in

most of the circuits that the authors visited:

‘‘In my experience, the most serious complaints never hit the complaint process.’’

‘‘There are more remedial actions taking place outside the complaint process

than following formal complaints.’’

The full description in the study (at 131–44) provides valuable insights into the operation of informal processes.

Second, many instances of judicial misconduct are dealt with through appellate

review of particular cases. A good example is the opinion of the District of Columbia

Circuit excoriating Judge Thomas Jackson for his out-of-court comments on the

pending Microsoft case. See United States v. Microsoft Corp., 253 F.3d 34, 107–117

(D.C. Cir. 2001), http://ecfp.cadc.uscourts.gov/MS-Docs/1720/0.pdf. Not only was

the public reprimand as harsh as any that might be meted out by the Judicial Council under section 372(c), but after the widespread publicity that the opinion received,

we can be confident that no federal judge will engage in similar behavior for a very

long time to come. If we agree with the Illustrative Rules that the thrust of the 1980

Act is ‘‘essentially forward-looking,’’ with the emphasis on ‘‘correcting conditions

that interfere with the proper administration of justice in the courts,’’ we can say

that the system has worked, albeit not through section 372(c).

Finally, the most efficient method of maintaining integrity in the federal judiciary

lies in rigorous scrutiny in the appointment process. Nominees today receive that

kind of scrutiny, including ‘‘full-field’’ investigations by the FBI. I believe that this

process helps to explain why there are so few non-frivolous complaints against federal judges.

I do not suggest that these considerations diminish the importance of section

372(c). On the contrary, section 372(c) will continue to play an essential role in dealing with misconduct or disability on the part of federal judges. In particular, informal processes could not operate as efficaciously as they do if the possibility of formal

proceedings did not loom in the background. As the Federal Judicial Center study

puts it (at 136–37), the chief judge ‘‘bargain[s] in the shadow of the Act.’’

49

Today’s oversight hearing is a valuable step in making the section 372(c) process

more effective. The amendments to the statute suggested in Part II can effect modest improvements in the system. But the greatest need is to enhance the visibility

of the complaint procedure. I hope the judiciary will pursue the suggestions in Part

III. If no progress is made, Congress may have to step in.

V. ISSUES RELATING TO JUDICIAL DISQUALIFICATION

Disqualification or recusal of judges (the two terms are used interchangeably) is

covered by sections 144 and 455 of the Judicial Code. Section 455 was completely

rewritten in 1974. The statute requires a federal judge to disqualify himself in five

specified circumstances, set forth in 28 USC § 455(b), and also ‘‘in any proceeding

in which his impartiality might reasonably be questioned.’’ In this part of my statement I discuss two issues relating to the disqualification of judges.

A. Timely disclosure of judges’ conflicts of interest

From time to time, a newspaper or advocacy group will publish an investigative

report revealing that one or more judges have participated in cases notwithstanding

a conflict of interest that mandated disqualification under 28 USC § 455(b). Perhaps

the best known example is the study conducted by the Kansas City Star in 1998.

The newspaper reported that federal judges in Kansas City and elsewhere ‘‘repeatedly have presided over lawsuits against companies in which they own stock.’’ More

recently, the Community Rights Counsel (CRC) publicized a research report indicating ‘‘that in 1997 at least eight federal appellate judges—ruled on the merits in

at least 17 federal appeals in which they had a disqualifying conflict of interest.’’

The judges attributed their participation in the conflict cases to innocent mistakes

or memory lapses. And the Star ‘‘found no evidence that any judge benefited personally or let his stock holdings influence his rulings.’’ (The CRC offered no comparable

disclaimer.) Nevertheless, episodes of this kind are harmful to the judiciary. At best,

the judges—and perhaps the winning lawyers—suffer embarrassment. At worst, a

cloud is cast over the judges’ integrity.

This is another area where technology can be helpful. The Star emphasized that

to determine whether a judge has a conflict of interest, the lawyer or litigant had

to request copies of disclosure statements that were available only from the Administrative Office in Washington, D.C. Although the Judicial Conference of the United

States has now authorized release of the disclosure reports to groups that want to

post them on the Internet, it appears that the posting has not yet occurred.

The Northern and Southern Districts of Iowa (and perhaps other federal courts)

have found a better way. Here is how it works.

• The web sites of those districts post ‘‘conflict lists’’ for the judges who sit on

those courts. See, e.g., http://www.iand.uscourts.gov/. Each list is preceded

by this statement: ‘‘Pursuant to this court’s policy of disclosing relationships

that pose potential or actual conflicts of interest, financial or otherwise, Judge

[X] will not be handling cases involving . . .’’ The list that follows may include names of corporations, individuals, and law firms.

• Court rules require attorneys in civil cases to ‘‘review the list and immediately notify the Clerk of Court if it appears the presiding judge may have

a conflict with any association, firm, partnership, corporation, or other artificial entity either related to any party or having a pecuniary interest in the

case.’’

• The Northern District of Iowa goes one step further than the Southern. At

the bottom of each list is the following notation: ‘‘Persons having knowledge

that a case has been assigned to Judge [X] involving an entity or individual

described above, or one related thereto, should immediately notify the Clerk

of Court in writing of the potential conflict.’’

On the available evidence, the Iowa system is a forward-looking use of Internet

technology that should be a model for all federal courts. There are at least four benefits from this system.

1. By allowing—and indeed requiring—the parties to take part in the conflictidentification process, the Iowa courts substantially increase the likelihood

that conflicts will be discovered early in a lawsuit. Court personnel still conduct their own check, but two pairs of eyes are better than one. And of

course the parties and their lawyers have a special incentive to make sure

that their case is not heard by a judge who has a conflict.

50

2. By placing the list on the court’s web site, the court makes it easy for interested observers, including advocacy groups like the CRC, to monitor judges’

compliance with conflict of interest rules.

3. Unlike the financial disclosure forms, which are filed once a year and often

are out of date by the time they are made public, the web site listing can

be updated whenever changes in a judge’s portfolio or other events require

it. Courts can easily establish procedures for judges to inform their clerks’

offices of such developments.

4. The Iowa system bypasses the concerns about judges’ safety that initially led

the Judicial Conference to resist sharing of the disclosure forms. The web

site list provides only the necessary information: Judge X is recused in cases

involving Corporation Y. This could be because the judge owns stock in the

corporation, because he represented the corporation before going on the

bench, or for some other reason.

Admittedly, the system is not perfect. The most serious problem is that judges do

not always notify the Clerk of Court of new conflicts, so the list is not necessarily

accurate and up-to-date. Nevertheless, the Iowa system is a tremendous improvement over the practice elsewhere.

In March 1999, the Judicial Conference of the United States rejected a proposal

to ‘‘encourag[e] all courts to maintain in the clerk’s office a recusal list for each

judge that would be available to litigants upon written request.’’ According to the

Washington Post (Sept. 13, 1999), the judges cited ‘‘security and privacy concerns.’’

However, that position appears to have been superseded by the vote one year later

to allow release of financial disclosure forms for posting on the Internet. In this

light, I suggest the following steps:

• All federal courts should adopt the Iowa system and post on their web sites

conflict lists for all judges of that court.

• Each court should adopt, implement, and monitor procedures for assuring

that judges inform the Clerk of Court, on a regular basis, of changes in stock

holdings or other circumstances that will require changes in the conflict lists.

• Judges should be encouraged to establish arrangements with their brokers to

receive notification of relevant portfolio changes in a form that can be forwarded immediately to the Clerk of Court. E-mail would seem like a good tool

for this purpose.

Technology holds out other possibilities as well. Lawyers are familiar with ‘‘conflict checking’’ software that is used to avoid conflicts of interest when a law firm

is considering taking on a new client. Similar software could check judges’ conflict

lists against the ‘‘statements of interest’’ filed by litigants in civil suits. But even

if such software is developed, the Iowa system would still be a desirable backstop,

if only because it enables outside groups to monitor compliance with disqualification

rules.

B. Effect of judicial disqualification in en banc voting

Today’s oversight hearing on judicial discipline and disqualification offers an appropriate opportunity to call the Subcommittee’s attention to a minor statutory malfunction that otherwise is likely to remain uncorrected. The issue involves the effect

of recusals by court of appeals judges when the court votes on whether to hear a

case en banc.

28 USC § 46(c) provides that en banc hearing can be ordered ‘‘by a majority of

the circuit judges of the circuit who are in regular active service.’’ The circuits are

divided on whether ‘‘majority’’ means (a) a majority of all active judges or (b) a majority of the active judges who are not recused. For convenience, I will refer to rule

‘‘a’’ as the ‘‘absolute majority rule.’’ Five circuits—the Fourth, Fifth, Sixth, Eleventh,

and District of Columbia—now follow that rule. See Judith A. McKenna, Laural A.

Hooper & Mary Clark, Case Management Procedures in the Federal Courts of Appeals 23 (Federal Judicial Center 2000).

In circuits that require an absolute majority, en banc rehearing can be denied

even though a majority of the judges who would participate in rehearing vote in

favor of it. This means that recused judges are having an influence on case outcomes that by definition they should not have.

The potential consequences of the rule can be seen by considering a case that was

scheduled for rehearing en banc in November in the Third Circuit. In In re Cendant

Corp. Litigation, 264 F.3d 301 (3d Cir. 2001), the panel ruled 2–1 that the district

court properly enjoined an arbitration proceeding. The majority consisted of 2 active

judges. Four of the circuit’s 12 active judges were recused. Under the absolute maVerDate 11-MAY-2000 11:57 Jan 03, 2002 Jkt 000000 PO 00000 Frm 00054 Fmt 6633 Sfmt 6621 G:\WORK\COURTS\112901\76383.000 HJUD1 PsN: HJUD1
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jority rule, en banc rehearing would have been foreclosed even if all 6 of the nonrecused active non-panel members had voted for en banc.

The absolute majority rule means that recused judges are, in effect, paired with

non-recused judges who vote in favor of en banc rehearing. Each judge who is

recused cancels out the affirmative vote of a judge who is not recused.

The arguments against the absolute majority rule are set forth in detail in a lucid

opinion by Judge Edward Carnes of the Eleventh Circuit in Gulf Power Co. v. Fed.

Communications Comm’n (No. 98–6222), 226 F.3d 1220 (11th Cir. 2000) (opinion on

denial of rehearing en banc). I commend Judge Carnes’s analysis to you.

Some years ago, a certiorari petition asked the Supreme Court to resolve the

intercircuit conflict on the interpretation of 28 USC § 46(c). The Court denied review. See Arnold v. Eastern Air Lines, Inc., 712 F.2d 899 (4th Cir. 1983), cert. denied, 464 U.S. 1040 (1984). (At that time the Fourth Circuit did not follow the absolute majority rule.) As far as I know, the Appellate Rules Committee of the Judicial

Conference has not taken up the issue.

The problem arises because of disagreement over the interpretation of an Act of

Congress. It is therefore appropriate that Congress resolve the matter. A simple solution would be to add at the end of the first sentence of § 46(c) the words ‘‘and who

are not disqualified,’’ so that the statute would provide that en banc hearing can

be ordered ‘‘by a majority of the circuit judges of the circuit who are in regular active service and who are not disqualified.’’ Another approach would be to add a new

sentence or subsection defining ‘‘majority’’ for purposes of the rule.

(The Third Circuit, although rejecting the absolute majority rule, does require

that ‘‘the judges who are not disqualified constitute a majority of the judges who

are in regular active service.’’ Internal Operating Procedures 9.5.3. I would not include that limitation.)

VI. CONCLUSION: THE COURTS AND THE INTERNET

Assuring the integrity of the federal judiciary while respecting the imperative of

judicial independence will always be a challenging task. We are fortunate to live in

an era when advancing technologies offer new ways of meeting the challenge.

Today, advancing technology is represented by the Internet. The Internet is a

uniquely powerful and effective tool for communication. It is a tool that did not exist

when Congress last revised the statute on judicial misconduct, much less when Congress rewrote the provisions dealing with judges’ conflict of interest.

The current statutes represent a careful and balanced approach—although, as

outlined above, some fine-tuning is in order. But optimum operation of the systems

has been hampered because people often do not have the information they need.

That is where the Internet comes in.

The federal judiciary has shown itself to be innovative and service-oriented in its

use of the Internet in adjudication and case management. Appellate opinions can

be found on line on the day they are filed. Dockets can be searched through PACER.

Most intriguingly, some courts have initiated electronic filing systems ‘‘permitting

attorneys in selected civil cases to file documents with the Court and deliver them

to opposing parties directly from their computers using the Internet.’’ See, e.g.,

https://ecf.cand.uscourts.gov/.

The same spirit can be applied to the matters that are the subject of this oversight hearing. As explained in Part III, courts can use the Internet to enhance the

visibility of the procedure for filing complaints against judges. This will make the

process more credible as well as more effective. As discussed in Part V, courts can

use the Internet to help judges avoid inadvertent violations of the conflict of interest

rules.

These suggestions are only a beginning. Other innovative uses of the Internet—

and of technologies not yet invented—will permit the courts to further strengthen

the mechanisms for preserving judicial integrity without impinging on judicial independence.

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EXECUTIVE SUMMARY

FEDERAL JUDICIAL MISCONDUCT

In the Judicial Conduct and Disability Act of 1980, Congress sought to provide

a mechanism for identifying and correcting judicial misconduct, without intruding

on judicial independence. The Act struck an appropriate balance by establishing a

system of decentralized self-regulation. The basic framework of the Act is sound, but

even the best of systems may require modification to meet changes in conditions or

perceptions over a period of time. In particular, the emergence of the Internet as

a ubiquitous vehicle for communication calls for rethinking of procedures established in the pre-Internet era.

Proposed amendments. Experience suggests several modest modifications to the

statutory scheme. The statute should be amended to explicitly recognize the authorVerDate 11-MAY-2000 11:57 Jan 03, 2002 Jkt 000000 PO 00000 Frm 00056 Fmt 6633 Sfmt 6621 G:\WORK\COURTS\112901\76383.000 HJUD1 PsN: HJUD1
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ity of the chief judge (a) to conduct a limited inquiry into the validity of the complaint and (b) to dismiss the complaint if the limited inquiry demonstrates that the

allegations lack any factual foundation or are conclusively refuted by objective evidence. Section 372(c)(3)A) should more fully specify other bases for dismissal that

can be identified on the face of the complaint. The Act should be amended to permit

petitions for review to be considered by a standing or rotating panel of the judicial

council, rather than by the entire council.

Visibility of the process. A major purpose of the mechanism established by the

1980 Act is to foster public confidence in the federal judiciary. To that end, the

mechanism must be visible. Visibility in this context entails two overlapping elements: the availability of the process must be made known to potential complainants, and the results of the process must be made known to all who are interested

in the effective operation of the judicial system. On the available evidence, there is

a real question whether these goals are being realized.

At a minimum, the web site of every federal court should include a prominent link

to the rules and forms for filing a complaint under § 372(c) concerning a judge of

that court. Beyond this, in the age of the Internet, more can and should be done

to disseminate information about the disposition of complaints by chief judges, councils, and special committees. The Federal Judicial Center should be encouraged to

conduct a study of the dispositions already on file there.

Assessing the record. The number of complaints filed against judges peaked in

1998; after that, the number has gone down in each successive year. The overwhelming majority of complaints are dismissed, either by the chief judge or by the

judicial council upon review of the chief judge’s order. The paucity of meritorious

complaints may reflect the availability of alternate mechanisms for correcting judicial misconduct, notably appellate review and informal processes. But the record is

less reassuring than it would be if the courts had been more energetic in publicizing

the existence of the complaint process.

JUDICIAL DISQUALIFICATION

Conflicts of interest. From time to time, a newspaper or advocacy group will publish an investigative report revealing that one or more judges have participated in

cases notwithstanding a conflict of interest that mandated disqualification under 28

USC § 455(b). To minimize such situations, all federal courts should adopt the system now used in the Northern and Southern Districts of Iowa: posting on their web

sites conflict lists for all judges of that court.

Recusals and en banc voting. 28 USC § 46(c) provides that en banc hearing can

be ordered ‘‘by a majority of the circuit judges of the circuit who are in regular active service.’’ Some circuits interpret ‘‘majority’’ to mean a majority of all active

judges, including judges who are recused. This means that recused judges are having an influence on case outcomes that by definition they should not have. The statute should be amended to make clear that recused judges are not counted.

Mr. COBLE. We are pleased to have been joined by the distinguished gentleman from east Tennessee, Mr. Jenkins.

Good to have you here, Bill.

Mr. Remington, the pressure is on you. Both witnesses came

within the 5-minute cycle. So heavy hangs the ax over your head.

STATEMENT OF MICHAEL J. REMINGTON, PARTNER, DRINKER

BIDDLE & REATH L.L.P.

Mr. REMINGTON. I hope to meet your expectations, Mr. Chairman. Thank you very much for the opportunity to testify.

I would also like to thank you and Mr. Berman for your very

kind introductions. It is true that I spent 13 years working for this

Subcommittee, and it is the best Subcommittee on the Judiciary

Committee; I am biased in that regard. I would like to commend

you and the Ranking Member, Mr. Berman, for your sterling leadership of this Subcommittee.

I recently spoke with former Chairman Bob Kastenmeier about

this hearing, and he sends his best greetings and he underlined the

importance of this particular subject before you. This hearing

would also please the former Ranking Minority Member of the Full

54

Committee, Hamilton Fish, who served on the Commission, and

just before his untimely passing in 1996, called me to his house

and asked me for a status update of the Commission’s recommendations.

I will make four points. First, outsiders sometimes forget, as you

stated, Mr. Chairman, that House rules require each standing

Committee to examine on a continuing basis the effectiveness of

laws and programs within the Committee’s jurisdiction. Oversight

is crucial to good government. Oversight actually improves interbranch communications and relations. Sometimes judges and executive officials forget about this fact.

Upon enactment of the 1980 act, this Subcommittee was specifically requested on the House floor by Caldwell Butler, former Republican Member, to exercise oversight over judicial discipline. The

National Commission underlined the importance of this oversight

responsibility.

Second, article III provides that Federal judges shall hold their

offices during good behavior and shall receive compensation which

shall not be diminished while in office. These words, alongside the

impeachment clauses, represent the entire constitutional structure

for addressing issues of judicial misconduct.

Until 1980, the law of judicial discipline was essentially the law

of impeachment. The 1980 act, the product of this Subcommittee,

recognized that judicial independence and public accountability

could exist mutually, side by side. The act satisfied constitutional

parameters by asking the judiciary to self-regulate and thereby reserving removal authority to the House and Senate. The act established a mechanism within the judicial branch to consider and respond to complaints against judges.

Most complaints, virtually all complaints, are handled initially

by the chief judges of the circuits and then by the circuit counsel;

while impeachable offenses, if they are identified, are forwarded to

this Committee through the Judicial Conference. I agree with Professor Hellman that the 1980 act is working reasonably well.

Third, in 1990, Congress created the National Commission and

asked it to study problems related to judicial misconduct and to report to Congress, the Chief Justice and the President.

In 1993, the Commission issued its final report fulfilling its statutory mandate. None of the Commission’s recommendations contemplated any constitutional amendments and none have been

adopted or ratified in the interim. The Commission nonetheless

identified a good number of statutory rule and administrative reforms that should occur within and between the three branches;

and I have given you a copy of those recommendations with a status update.

In 1997, I was pleased to see that the ABA Commission on Separation of Powers noted that Congress had not been sufficiently apprised of the National Commission’s report and that hearings such

as this one, Mr. Chairman, should be held to consider appropriate

responses. As I said, my written statement gives you a status update. I would be grateful if staff and the Committee Members

would take a look at the recommendations that have not yet been

implemented.

55

Fourth, some final thoughts: Informal action has been and remains the judiciary’s most common response to episodes of judicial

misconduct. Professor Hellman made that point. I agree with it.

The Federal Judicial Center, a jewel in the judiciary’s crown, will

soon be releasing a monograph on Federal case law, interpreting

the judicial disqualification statutes. This monograph should be

very helpful to the Subcommittee.

The Ethics in Government Act requires all judges to file personal

financial reports containing a full statement of assets, income and

liabilities, as well as those of spouses and dependent children. With

consideration for security concerns, these reports should be readily

available to the public.

There is no compelling need to create an administrative mechanism within the judicial branch to review judicial education and

training programs attended by Federal judges. A statutory cure is

worse than the disease. We trust judges with the Republic; we can

trust them with judicial education. However, judges must routinely

consider the propriety of attending all-expense-paid seminars; and

the overall value of any gift must be reported.

In conclusion, I agree with Mr. Berman’s statement that our law

must ensure complete impartiality. In today’s climate, ask yourselves whether you want a strong and independent judiciary that

maintains the highest level of ethics and conduct. I hope my testimony will assist your affirmative response to that question.

Thank you, Mr. Chairman.

Mr. COBLE. Thank you, Mr. Remington. And you cause nostalgia

to rear its head when you testify.

[The prepared statement of Mr. Remington follows:]

PREPARED STATEMENT OF MICHAEL J. REMINGTON

Mr. Chairman, I appreciate the opportunity to testify before the Subcommittee on

the important subject of ‘‘the operations of federal judicial misconduct and recusal

statutes.’’ In a time of terrorism and turmoil, the functioning of our institutions of

government is critically important. The federal judicial branch that has served this

nation so well for so long cannot be taken for granted. An independent federal judiciary, which resolves not only constitutional questions but also statutory controversies arising from this country’s criminal, antitrust, environmental and intellectual

property laws, to name a few, is a strong judiciary. But it must also be an accountable and impartial judiciary that maintains the highest ethical standards.

By way of personal background, I was a counsel to this Subcommittee for nearly

thirteen years, and I served as its Chief Counsel from 1983 until 1990. I previously

served as a prosecutor in the U.S. Department of Justice and as Deputy Legislative

Affairs Officer in the Administrative Office of the U.S. Courts. I left the committee

staff in early 1991 to become Director of the National Commission on Judicial Discipline and Removal (‘‘National Commission’’) where I served for 18 months.

I currently am a partner in the law firm of Drinker Biddle & Reath LLP where

I co-chair the firm’s intellectual property group. I am also an adjunct faculty member at two local-area law schools: Catholic University’s Columbus School of Law

(where I teach legislation) and George Mason University School of Law (where I

teach copyright). I have no client interests in the matters before the Subcommittee

this morning. This is my first formal appearance as a witness before the Subcommittee.

Permit me to make a personal observation at the outset. I routinely follow the

operations and activities of the Subcommittee, and I am impressed beyond measure

by your stewardship, Mr. Chairman, and that of the Ranking Minority Member, Mr.

Berman, and by the leadership of the full committee under Chairman Sensenbrenner and the Ranking Minority Member, Mr. Conyers. The Subcommittee and

the full Committee are in good hands.

You may be interested in knowing that my last legislative testimony on the subject before you was in Islamabad, Pakistan, before a joint session of staff and memVerDate 11-MAY-2000 11:57 Jan 03, 2002 Jkt 000000 PO 00000 Frm 00059 Fmt 6633 Sfmt 6621 G:\WORK\COURTS\112901\76383.000 HJUD1 PsN: HJUD1
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1Public Law 101–650, 104 Stat. 5124, codified at 28 U.S.C. §§ 332, 372.

bers of the Pakistan Senate and National Assembly. On behalf of The Asia Foundation, I discussed parallel subjects of judicial and legislative independence. As we

speak, these issues are of increasing importance worldwide.

Two days before his untimely passing in 1996, I was fortunate enough to be with

Hamilton Fish, the former ranking member of this Committee and member (while

a Member of Congress) of the National Commission. Mr. Fish was a key and conscientious contributor, along with the former chairman of the Subcommittee, Robert

W. Kastenmeier, who served as chair of the National Commission after his retirement. Among other items on his mind, Mr. Fish wanted an update on implementation of the National Commission’s recommendations. This hearing would please Mr.

Fish. I recently spoke with Bob Kastenmeier who not only sends his best greetings

to the Subcommittee but underlines the importance of the subject being scrutinized.

I. BACKGROUND

Not long ago, in June of 1986, this Subcommittee was referred Chairman Sensenbrenner’s impeachment resolution, and was obliged to drop all other legislative business in order to hold a hearing into the conduct of Judge Harry E. Claiborne (a

judge of the United States District Court of Nevada who had been convicted of two

felonies and was incarcerated at the time) and to draft articles of impeachment. Almost four months later, on October 9, 1986, the United States Senate removed

Judge Claiborne from office.

This Subcommittee crafted—with the cooperation of the federal judiciary and then

Chief Justice Warren E. Burger—the Judicial Councils Reform and Judicial Conduct

and Disability Act of 1980 (the ‘‘Act’’ or ‘‘1980 Act’’).1 The Act was the product of

extensive dialogue between the legislative and judicial branches of government.

Congress made its concern evident to the judiciary that there be in place a formal

and credible supplement to the impeachment process for resolving complaints of

misconduct or disability brought against federal judges, while the judiciary revealed

to Congress its concern that any such system not prove to be a cure worse than the

disease.

In 1986, Senate Majority Leader Robert Dole, in the wake of the Claiborne impeachment and removal proceedings, proposed the statutory establishment of a

study group to examine the scope of the problem of judicial discipline and impeachment. A similar proposal was introduced in early 1990 by Chairman Kastenmeier

and Ranking Member Carlos Moorhead. The measure passed both the House and

Senate in late October, and was signed by President George Bush on December 1,

1990. By that time, two other federal judges had been impeached (and removed from

office) and two others prosecuted for violation of the federal criminal laws.

In my testimony, I will cover four issues: first, the need for affirmative and continuing oversight of judicial discipline statutes and methods; second, a brief assessment of the 1980 Act; third, a review of the recommendations of the National Commission, with a status update; and, fourth, a brief analysis of other judicial discipline methods and laws.

II. OVERSIGHT

As you know, the Rules of the House of Representatives require each standing

committee to ‘‘. . . review and study on a continuing basis, the application, administration, execution, and effectiveness of laws and programs addressing subjects within its jurisdiction. . . .’’ Rule X, clause 2, 107th Congress. In addition, each committee is further required continually, not just periodically, to review and study the

operation of federal entities which have authority over laws within the Committee’s

jurisdiction, any conditions or circumstances that may indicate the desirability of

enacting new or additional legislation, and to undertake future research and forecasting on matters within the Committee’s jurisdiction.

The importance of oversight is uncontestable because it assists the Congress in

understanding how particular laws are being implemented and how government

programs are being administered. Effective oversight is also very useful for government officials responsible for administering programs because it gives them an opportunity to explain and justify their decisions and priorities. It also gives them the

chance to hear the views, including criticism, of Members of Congress who control

their budgets and can rewrite legislation. Oversight involves two-way communications designed to identify any subjects that could become serious problems, and then

attempts to resolve differences. Because it instills appreciation of each other’s processes and problems, oversight improves inter-branch relations.

57

2Federal Judicial Salary Control Act of 1981, Hearings Before the Subcommittee on Courts

of the Senate Committee on the Judiciary, 97th Cong., 2nd Sess. 37–38 (1982) (statement of

Hon. Elmo Hunter). 3See Hearing on the Report of the National Commission on Judicial Discipline and Removal

Before the House Committee on the Judiciary Subcommittee on Intellectual Property and Judicial Administration, 103rd Cong., 1st Sess. at 9–10 (1993) (remarks of Robert W. Kastenmeier);

see also Long Range Plan for the Federal Courts at 89 (Judicial Conference of the United States,

January 1995). 4See Judicial Business of the United States Courts, 2000 Annual Report of the Director 35–

37 (2000).

As compared to other standing committees, the Judiciary Committee does not

have a subcommittee with overall oversight responsibility. Rather, oversight is often

exercised by the specific subcommittees. Historically, this Subcommittee has been

very diligent in exercising its oversight responsibilities, including over the federal

judicial branch of government. And the judicial branch generally is receptive to that

oversight. A representative of the Judicial Conference specifically referenced this

Subcommittee, stating that the Conference ‘‘has thoroughly cooperated in that oversight—and in fact has repeatedly sought and is now seeking more of it.’’ 2 Upon enactment of the 1980 Act, this Subcommittee was specifically requested to exercise

oversight of judicial discipline. For example, Representative Caldwell Butler stated:

‘‘I would like to impress on my colleagues the importance of conducting congressional oversight in this most sensitive area.’’ On behalf of the Subcommittee, Chairman Kastenmeier promised ‘‘vigorous’’ oversight. He kept his promise. Periodic oversight was instrumental in reform by the judicial branch of rules promulgated to govern proceedings under the 1980 Act (the Illustrative Rules Governing Complaints

of Judicial Misconduct and Disability), and led to statutory amendments to the Act

in 1988 and 1990. This oversight hearing is part of that continuum.

Not without controversy and debate, the National Commission specifically considered the issue of oversight of judicial discipline and confirmed that the ‘‘House Committee on the Judiciary, within its jurisdiction, [should] exercise periodic oversight

of judicial discipline, judicial ethics, and criminal prosecutions of federal judges.’’ In

the view of the Commission, congressional oversight will help the judicial branch

enforce judicial ethics (including judicial disqualification and recusal) and administer the 1980 Act so as to prevent conditions that could lead to discipline and impeachment. In this regard, oversight will promote judicial accountability. It will also

help the legislative branch to understand how well the judiciary is generally doing

with its self-administration of judicial discipline matters. That understanding will

protect judicial independence by reducing the possibility that the Congress might

enact a different disciplinary scheme.3

A key aspect of oversight of judicial discipline is written into 28 U.S.C. § 604(h)(2),

where the Director of the Administrative Office of the U.S. Courts must include in

his annual report a summary of judicial discipline and disability complaints, ‘‘indicating the general nature of such complaints in which action has been taken.’’ Without the Director’s annual reports, it is very difficult to assess the functioning of the

1980 Act.4

Also, oversight of the U.S. Department of Justice can be very useful. In the five

prosecutions of federal judges in the 1980s, there was apparently no timely communication to enable the House to have any meaningful say in the decision that criminal prosecution would precede impeachment. Congress was surprised by the prosecutions. The communication problems should change, as the Commission recommends. In addition, explicit and implicit commitments were made during impeachment trials to examine alleged prosecutorial misconduct in the criminal cases

of the federal judges. Oversight can be helpful in such matters to assure the Congress that its own impeachment powers are not being manipulated improperly, and

to develop a mechanism for communication between the House and the Department.

As part of its oversight, the Subcommittee should receive testimony from representatives of the judicial and executive branches. To promote its understanding

of the functioning of the judicial misconduct statutes, the Subcommittee should also

engage in informal meetings with high-level representatives of the other two

branches.

III. THE 1980 ACT

The U.S. Constitution provides that federal judges shall ‘‘hold their Offices during

good Behavior,’’ and shall receive a Compensation ‘‘which shall not be diminished

during their Continuance in Office.’’ Art. III, δ 1. These words alongside the Impeachment Clauses represent the entire constitutional structure for addressing

issues of judicial discipline, disability, removal, and compensation. The Framers

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5Frank M. Johnson, Jr., ‘‘Judicial Independence Once More an Issue,’’ 65 ABA Journal 342

(1979). 6For further information about aspects of the 1980 Act relating to the councils, see Remington, Michael J., Circuit Council Reform: A Boat Hook for Judges and Court Administrators,

1981 Brig.Y.L. Rev. 695. 7See generally Hearings on Judicial Independence: Discipline and Conduct Before the House

Committee on the Judiciary Subcommittee on Courts, Intellectual Property and the Administration of Justice, 101st Cong., 1st Sess. (1989); see also Kastenmeier, Robert W. & Remington, Michael J., Judicial Discipline: A Legislative Perspective, 76 Ky. L. Rev. 763 (1987–88) (reprinted

in hearing record at p. 105).

worked long and hard over the system of checks and balances within the federal

government. They designed impeachment as the only check on the judicial branch

of government. In Federalist No. 79, Alexander Hamilton discussed the subject of

judicial accountability:

‘‘The precautions for their responsibility are comprised in the article respecting

impeachments. They are liable to be impeached for mal-conduct by the House

of Representatives, and tried by the Senate, and if convicted, may be dismissed

from office and disqualified for holding any other. This is the only provision on

the point, which is consistent with the necessary independence of the judicial

character, and is the only one which we find in our own constitution in respect

to our own judges’’ (emphasis added).

Until 1980, the law of judicial discipline was largely the law of impeachment.

The 1980 Act recognized that judicial independence and public accountability are

not mutually exclusive. Prior to enactment, one highly respected federal judge (the

Honorable Frank M. Johnson, Jr.) noted: ‘‘judicial independence must incorporate

some notion of accountability.’’ 5 The 1980 Act satisfied constitutional parameters by

asking the judiciary to self-regulate and by reserving removal authority to the

House and Senate. The Act establishes procedures and a mechanism within the judicial branch to consider and respond to complaints against judges. Most complaints

are handled initially by the chief judges of the circuits and then by the judicial

councils of the circuits, but when impeachable offenses are identified, the councils

and the Judicial Conference are empowered to refer the matter directly to Congress.

A. Circuit Councils. Section 332 of title 28, United States Code, provides that each

circuit shall have a judicial council. The circuit councils are the workhorses of federal judicial administration. Historically, the councils were the handiwork of Chief

Justice Charles Evans Hughes, who had the active support of the Chairman of this

Committee, Representative Hatton Sumners, whose portrait adorns this room’s walls. Chairman Sumners had been a manager in the lengthy impeachment trail

in 1936 of Judge Halstead Ritter. Based on his experience, Chairman Sumners concluded that there had to be a better mechanism to discipline federal judges. The result was the establishment of a decentralized entity with broad administrative authority and responsibility.

As regards judicial discipline, however, the councils did not fulfill their original

vision. When a case involving the authority of a circuit council to discipline a judge

finally reached the U.S. Supreme Court, the Court found statutory language concerning the council’s power to be ambiguous. Chandler v. Judicial Council of the

Tenth Circuit, 398 U.S. 74 (1970). In an important footnote, Chief Justice Warren

E. Burger supported the concept of statutorily granting the councils, as administrative bodies, broadened enforcement authority with clarification of procedures to review council orders. Id. at 85, n. 6.

That is exactly what happened in 1980 when Congress enlarged the authority of

the councils to include judicial discipline and disability and established a review

mechanism within the judiciary.6 Congress opted against the establishment of an

independent ‘‘judicial misconduct and tenure’’ commission with delegation of the removal function to the commission (which was thought to be of dubious constitutionality).7

B. Judicial Discipline. Section 372(c) of title 28, United States Code, sets forth

a way for any person to complain about a federal judge who the person believes ‘‘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.’’ Subsection (c) also provides a procedure for the

handling of such complaints and permits the councils to adopt rules for the consideration of complaints. The statutory scheme creates a tiered response within the judiciary for responses to complaints, with authority residing initially in the chief judge

of the circuit (who can dismiss complaints and even fashion a complaint, if one has

not been filed), with assignment to special committees, if necessary, to investigate

complaints, then review by the circuit council and ultimately the Judicial ConVerDate 11-MAY-2000 11:57 Jan 03, 2002 Jkt 000000 PO 00000 Frm 00062 Fmt 6633 Sfmt 6621 G:\WORK\COURTS\112901\76383.000 HJUD1 PsN: HJUD1
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8See Research Papers of the National Commission and Judicial Discipline & Removal (1993);

see also Disciplining the Federal Judiciary, 142 Penn L. Rev. 1–430 (1993). 9Of particular usefulness was the Center’s study on the ‘‘Administration of the Federal Judicial Conduct and Disability Act of 1980’’ by Jeffrey N. Barr and Thomas E. Willging. See Research Papers at 477; Jeffrey N. Barr & Thomas E. Willging, Decentralized Self-Regulation, Accountability, and Judicial Independence Under the Federal Judicial Conduct and Disability Act

of 1980, 142 Penn. L. Rev. at 25.

ference in the most serious cases. The list of sanctions set forth in the statute includes: ordering, on a temporary basis, no further assignment of cases; censoring or

reprimanding by private communication; censoring or reprimanding by public announcement; certifying a disability; requesting a voluntary retirement; and such

other action as the council considers appropriate (except removal from office of a

lifetime-tenured judge).

In crafting the 1980 Act, this Subcommittee took extra steps to ensure its constitutionality. The Subcommittee received extensive testimony, and requested and

reviewed a study of the American Law Division of the Library of Congress on the

subject. The House Committee Report had a special section on constitutionality. See

H. Rep. No. 1313, 96th Cong., 2nd Sess. (1980). The Senate requested its own analysis and debated the subject at some length on the Senate floor.

Every court that has adjudicated cases challenging the Act has found that it

passes constitutional muster. In 1986, the 11th Circuit found that the statute, far

from being an unconstitutional encroachment on the autonomy of the federal judiciary, strengthened the independence of the judicial branch as a whole. In re Certain

Complaints Under Investigation, 783 F. 2d 1488, 1507 (11th Cir. 1986), cert. denied,

106 S. Ct. 3273. Recently, the D.C. Circuit held that Article III of the Constitution

does not clothe federal judges with absolute immunity from lesser sanctions (from

public reprimand to taking cases away) contemplated by the 1980 Act. See McBryde

v. Committee to Review Circuit Council Conduct and Disability Orders of the Judicial Conference of the United States, 2001 U.S. App. LEXIS 20843 (Sept. 21, 2001).

IV. THE NATIONAL COMMISSION

A. Background about the Commission. In 1990, Congress assigned three duties to

the National Commission: (1) to investigate and study problems and issues related

to the discipline and removal from office of lifetime-tenured federal judges; (2) to

evaluate the advisability of proposing alternatives to current arrangements for responding to any identified problems and issues; and (3) to submit to Congress, the

Chief Justice and the President a report of its findings and recommendations. The

Commission was not given authority to make recommendations regarding the judicial appointments process.

In 1991, following selection and appointment of the thirteen commissioners by all

appointing authorities, Bob Kastenmeier was selected Chairman. The Commission

formally commenced its work in early 1992, reviewing presentations concerning historical, constitutional, and current perspectives on judicial discipline and the removal of life-tenured judges from office, and developing a general plan for identifying policy questions genuinely in need of review. The Commission arranged for

consultancy studies 8 individually designed to explain existing laws, policies, perceptions, and the historical background. In addition, major contributions to the research effort were made by two entities within this Subcommittee’s oversight jurisdiction, the Federal Judicial Center 9 and the State Justice Institute. Further, the

Library of Congress Law Library prepared a report on the removal and discipline

of judges in twenty-six countries and five international judicial organizations. Finally, a number of highly respected law firms contributed to the research efforts.

A list of the studies, many of which have lasting value, is attached as Appendix I.

Several were used during the impeachment proceedings of President Clinton.

The Commission also held public hearings, receiving testimony from more than

thirty witnesses, including a Congressman (Rep. Don Edwards of California, who

had served as a House Manager), a former Senator who had served as a Senate

Trial Committee chairman in recent impeachments (Charles McC. Mathias), four

additional Representatives with developed views about the House’s impeachment

role (Representative Applegate, Representative Field, Representative Hyde, and

Representative Sangmeister), two Senators who had served on Trial Committees

(Senator Rudman and Senator Levin), the Senate author of a constitutional amendment (Senator Thurmond), attorneys who had served either Congress or judges in

impeachment proceedings, a Deputy Attorney General of the United States, and representatives of concerned public interest organizations. A Roundtable Discussion of

60

10See Hearings of the National Commission and Judicial Discipline & Removal (1993). 11The Report is available on the ABA’s website, <http://www.abanet.org/govaffairs/judiciary/r6a.html>.

constitutional issues related to discipline and removal of life-tenured federal judges

was conducted by four constitutional law professors and a constitutional historian.10

After a series of public meetings, the Commission issued a draft report and tentative recommendations which were subjected to three further days of hearings. On

August 2, 1993, the National Commission issued its final report. See Report of the

National Commission on Judicial Discipline & Removal (August 1993) (‘‘Report’’).

B. The U.S. Supreme Court’s decision in United States v. Nixon. While the Commission was conducting its inquiry, on January 13, 1993, in Nixon v. United States, 506 U.S. 224 (1993), the United States Supreme Court upheld the Senate’s authority to determine the method it uses for conducting impeachment trials, concluding

that the challenge to the Senate’s use of a Rule XI committee by former Judge

Nixon was not judicially reviewable. The decision underlined a textual commitment

in the Constitution regarding assignment of ‘‘sole’’ impeachment authority to the

House (to accuse) and the Senate (to judge). Writing for the Court, Chief Justice

Rehnquist stated that ‘‘judicial involvement in impeachment proceedings, even if

only for purposes of judicial review, is counterintuitive because it would eviscerate

the ’important constitutional check’ placed on the judiciary by the Framers.’’ 506

U.S. at 235. The House of Representatives should be mindful of the Nixon decision

because in exercising its sole power to indict a federal judge for violation of the

‘‘good behavior’’ clause of the Constitution, judicial review is not possible unless a

textual provision of the Constitution is violated.

C. Report and Recommendations. Permit a brief summary of what I consider to

be the more significant recommendations and conclusions of the National Commission. All the recommendations and conclusions, with an implementation update, are

set forth in Appendix II. Despite the fact that I am testifying in my own capacity,

I have no reason to criticize any of the National Commission’s recommendations. In

fact, I readily embrace them.

1. Constitutional Questions. First, the National Commission concluded that removal from office of judges who serve on good behavior under Article III by

means other than impeachment and conviction would require a constitutional amendment. None of the Commission’s recommendations contemplated

any constitutional revisions. The reason is that none was deemed necessary.

In the final analysis, the Commission did not find that the House and Senate

should be relieved of the power and responsibility to make an independent

political judgment about the fitness of a federal judge to remain in office.

[Status: no constitutional amendments to federal judicial discipline arrangements

have been ratified.]

Having found the discipline and removal system not broken beyond repair, requiring a constitutional restructuring, the Commission nonetheless identified a good

number of statutory, rule and administrative reforms that should occur within,

among and between the three branches of the federal government. However, the

Commission concluded that if current arrangements become wholly inadequate and

incapable of consequential improvements, radical reforms should be seriously contemplated. But having carefully considered the relevant mechanisms of the three

branches, the Commission also concluded that substantial improvements are possible, and its recommendations are crafted to achieve that end.

The American Bar Association, which established a special task force to monitor

and evaluate the work of the National Commission, concurred with the Commission’s overall views and adopted a policy in favor of the 1980 Act. In a 1997 report on ‘‘An Independent Judiciary,’’ the ABA Commission on Separation of Powers and

Judicial Independence noted that Congress had not been sufficiently apprised of the

Report of the National Commission and that hearings (such as this one) should be

held to consider appropriate response to problems in the judicial discipline and removal arena.11 This should be done before consideration of any proposals for additional legislation or constitutional amendments in the area of judicial discipline.

Mr. Chairman, it took almost two centuries of American history to create a judicial discipline mechanism; eight years after the National Commission’s Report is a

blink of an historical eye.

2. The Legislative Branch. When the situation presents itself, the House of Representatives should give serious thought to expediting the impeachment process, through acting prior to prosecution of a judge or immediately after conviction. Before the criminal trial of a federal judge, the House and the JusVerDate 11-MAY-2000 11:57 Jan 03, 2002 Jkt 000000 PO 00000 Frm 00064 Fmt 6633 Sfmt 6621 G:\WORK\COURTS\112901\76383.000 HJUD1 PsN: HJUD1
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tice Department should consult each other to determine together whether

impeachment should precede the criminal trial. Subject to statutory and

rules exceptions, the House should expeditiously obtain relevant wiretap and

grand jury information relating to the possible House impeachment and Senate trial of a federal judge.

In addition to conducting oversight, the Commission recognized the key role that

this Committee plays in the impeachment process and recommended that:

• The Committee acknowledge every judicial discipline complaint. The Committee should continue to keep a record of the number and nature of these

complaints, and report these data in its summary of activities. In serious

cases involving potentially impeachable conduct, the Committee should engage in an inquiry or solicit the assistance of the Justice Department in such

an inquiry;

• The House should ensure that the Committee has the resources necessary to

deal with judicial discipline matters, and the resources and institutional

memory necessary to handle impeachment cases as they arise; and

• The Committee routinely receive from the Administrative Office all final orders and accompanying memoranda required by the 1980 Act to be publicly

available.

[Status: although the Committee has exercised its oversight authority and has maintained the resources necessary to deal with judicial discipline and impeachment matters, it has not systematized its handling of judicial discipline complaints. It also has

not routinely received publicly available information from the Administrative Office.]

Again, when circumstances present themselves, given the wide latitude that the

Senate has to develop and implement impeachment trial procedures, the Senate

should consider experimenting with a variety of delegation approaches (including

use of masters) to simplify issues prior to any removal trial. Further, the Senate

should consider the establishment of a standard of proof in impeachment trials.

Moreover, the Senate should consider amending its Impeachment Rules to permit

a Rule XI Committee (trial committee) to make proposed findings of fact and recommendations to the Senate on articles of impeachment involving federal judges. Finally, following conviction of a federal judge in a Senate impeachment trial, the Senate should always decide whether to disqualify the judge from future public office.

[Status: because the Senate has not faced a judicial impeachment since issuance of

the Report, it has given little consideration to the Commission’s recommendations.]

One recommendation was directed to the Congress. When prosecution and conviction of a federal judge occur first, the facts that were necessarily found in the criminal conviction should be used by Congress so as to make impeachment proceedings

or a Senate trial more efficient.

[Status: because no judicial impeachments have taken place since issuance of the Report, this recommendation has not been implemented.]

3. The Executive Branch. The Commission concluded that the Department of

Justice should promulgate guidelines and procedures for government litigators and U.S. Attorney’s offices regarding the circumstances under and the

manner in which the mechanisms of the 1980 Act are utilized. Furthermore,

the Department of Justice should issue explicit guidelines and procedures for

the investigation and prosecution of federal judges, and that these guidelines

and procedures require the approval of the Attorney General for full-scale investigations and intrusive investigative techniques.

[Status: based on information and belief, the Department of Justice has not implemented the Commission’s recommendations. In any event, the Committee should as

part of its oversight inquire of the Department whether it has improved its internal

procedures regarding the prosecution of sitting federal judges.]

4. The Judicial Branch. Numerous Commission recommendations were made to

the judicial branch. The Illustrative Rules should be revised in certain regards, and then adopted by the circuit councils. Discipline under the 1980

Act should be possible for a judge’s delay in decision-making but only in unusual circumstances such as habitual failure to decide matters in a timely

fashion. Circuit chief judges and circuit councils should refer non-frivolous

criminal allegations to prosecutors or this Committee. The ethics code for

federal judges should be amended to expressly prohibit judicial misconduct

reflecting or implementing bias on the basis of race, sex, sexual orientation,

62

religion, or ethnic or national origin, including sexual harassment; and such

misbehavior should be subject to discipline under the 1980 Act unless it is

‘‘merits-related.’’ Each judicial circuit council should appoint a committee

(whose membership would include non-judges) to serve as a filter and conduit for serious complaints against federal judges. Orders dismissing complaints against judges should contain more information than they now usually contain. A body of precedents should be developed in the field of judicial

discipline. The Judicial Conference and circuit councils should consider adoption of judicial evaluation programs. Finally, the Supreme Court should consider adopting policies and procedures for filing and disposing of complaints

against Supreme Court Justices.

[Status: a majority of the recommendations directed at the judicial branch have been

implemented administratively, but several have not including the appointment of

committees before the circuit councils to screen complaints, amendments to the ethics

code to prohibit various forms of discrimination or harassment, and a self-reporting

rule for judges who have been indicted, arrested, or informed that they are the target

of a federal or state criminal investigation.]

5. Legislative recommendations. The National Commission made only a handful

of recommendations for legislative action:

• Provide that section 201 of Title 18, United States Code, be amended to

make clear that it does not authorize the removal of any lifetime-tenured

judicial officer. [Status: not enacted.]

• Enact a statute to provide that a judge who has been convicted of a felony

shall not hear or decide cases unless the appropriate circuit council determines otherwise. [Status: not enacted.]

• Provide that, upon conviction of a felony, a federal judge should cease to

accrue credit, through age of years of service, towards retirement (under

the rule of 80). [Status: Judicial Conference passed a resolution to this effect, but not enacted.]

• Amend section 332 of Title 28, United States Code, to require each circuit

council to report annually to the Administrative Office the number and nature of orders entered thereunder that relate to judicial misconduct or disability (including delay). [Status: enacted as an amendment to 28 U.S.C.

§ 332(g).]

• Amend section 372 of Title 28, United States Code, to include as an additional ground of dismissal by a chief judge that the allegations in a complaint have been shown to be plainly untrue or incapable of being established through investigation. [Status: implemented administratively as an

amendment to the Illustrative Rules.]

• Amend the public disclosure requirements under federal law to require a

federal judge either (1) to certify that, to the best of his or her knowledge,

information and belief, the judge does not, except as permitted by Canon

2(c), hold membership in any organization that practices invidious discrimination on the basis or race, sex, religion, or national origin, or (2) to

list all organizations not exempted by Canon 2(c) of which the judge is a

member. [Status: not enacted.]

V. OTHER JUDICIAL DISCIPLINE METHODS AND LAWS

A. Informal Methods of Judicial Discipline. Section 332 permits the circuit councils, through their respective chief judges, to employ informal methods of resolving

problems. This authority is traditional, not textual. Informal action ‘‘has been and

remains the judiciary’s most common response to episodes of judicial misconduct.’’

See Geyh, Charles Gardner, Informal Methods of Judicial Discipline, 142 U. Penn.

L. Rev. 243, 280 (1993). Professor Geyh, a former counsel to this Committee, also

identifies two further devices with disciplinary implications: (1) appeal and mandamus; and (2) peer influence. Appeal and mandamus are relatively weak tools to

address judicial misconduct because they are applied on a case-by-case basis and do

not appear to be sanctions. Peer pressure may be effective but is largely invisible

to the public eye. Nonetheless, an understanding of these informal processes is essential to a fuller understanding of judicial discipline.

B. Judicial Disqualification and Recusal. An individual’s right to have a case

heard before an impartial judge is protected by the Due Process Clause of the Fifth

Amendment and sections 144 and 455 of title 28, United States Code. These constitutional and statutory provisions enable litigants to request that a judge recuse

himself or herself on counts of bias of conflict of interest.

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12 Committee on Codes of Conduct Advisory Opinion No. 67 (August 20, 1980, revised July

10, 1998).

Section 144 authorizes a litigant to disqualify a judge by filing a timely and ‘‘sufficient affidavit that the judge before whom the matter is pending has a personal bias

or prejudice either against [the litigant] or in favor of any adverse party.’’ In comparison, section 455 provides that a judge must ‘‘disqualify’’ himself or herself from

any proceeding in which the judge’s impartiality might reasonably be questioned or

in any case in which the judge, or members of his or her family, are parties to the

case or have a financial interest in a party to the case. Although the standards for

a finding of bias or partiality would appear easy to meet, they are not. Recusal appears to be rare, and reversal of a refusal to recuse is even rarer. Inherent in these

statutes’ requirements that a judge disqualify or recuse if bias or partiality reasonably may be questioned is a fundamental principle that our justice system must satisfy an appearance of justice.

As compared to judicial discipline which is administered by the relevant circuit

council and the Judicial Conference, judicial recusal is determined on a case-by-case

basis by individual federal judges. An understanding of how well section 144 and

section 455 are working requires an analysis of the case law. It is my understanding

that the Federal Judicial Center will soon be releasing a descriptive monograph on

federal case law interpreting the judicial disqualification statutes. I recommend that

the Subcommittee examine this monograph very closely, and if further prescriptive

research is necessary, that the Subcommittee request the Center to do so.

C. Judicial Ethics. Federal judges must satisfy exacting ethical standards regarding personal finances. The Ethics in Government Act of 1978, as amended, requires

all judges to file personal financial reports containing a full statement of assets, income, and liabilities as well as those of spouses and dependent children. Pub. L. No.

95–521, 92 Stat., 1824, 1851–61. The reports are to be made available to the public.

However, to the best of my knowledge, the judges’ financial disclosure forms are extremely difficult to obtain. As regards judicial officers, the Act is administered by

the Judicial Conference which has established a Judicial Ethics Committee to assist.

In past years, this Subcommittee has conducted continuing oversight of the Judicial

Ethics Committee. I am honored to appear on a panel with the Chairman of that

Committee.

D. Review of Judicial Education and Training Programs. After the media reported

stories after federal judges’ attendance at expense-paid educational seminars whose

sponsors accept funding from corporate foundations and other entities with a potential interest in the outcome of federal litigation involving topics covered by the seminar, judicial education became a hot topic. A legislative proposal was introduced in

the Senate to create an administrative mechanism within the judicial branch to review judicial education and training programs attended by federal judges. See S.

2990 (Kerry/Feingold), 106th Cong., 2nd Sess. (2000), the Judicial Education Reform

Act of 2000. Although it contains exceptions, S. 2990 essentially bans privatelyfunded seminars by prohibiting judges from accepting private seminars as gifts. The

legislation also creates a Judicial Education Fund and delegates authority to the

Board of the Federal Judicial Center to approve seminars. Information about any

seminar must be posted on the Internet, and the Judicial Conference is authorized

to promulgate guidelines for the Center’s approval process.

In my opinion, such legislation is not sound public policy. If individuals appointed

by the President and confirmed by the Senate can be entrusted with lifetime tenure

and Article III authority, they certainly can be entrusted with the responsibility of

choosing educational seminars and programs. ‘‘Judges are continually exposed to

competing views and arguments and are trained to weigh them.’’ 12 The proposal implicates (negatively, I believe) academic freedom and First Amendment rights. The

education of judges serves the public interest. That a lecture or seminar espouses

a particular viewpoint (conservative, liberal, or libertarian) should not preclude a

judge from attending.

However, judges should routinely consider the propriety of attending all expense

paid seminars, including any appearance of impropriety. Payment of tuition, reimbursement of expenses, and the overall value of the gift that accrues from attendance at privately-funded seminars must be timely and accurately disclosed by

judges. Attendance at a seminar funded by an entity with a direct or significant interest in matters before the judge strikes me as improper. Judicial ethics rules require judges, prior to attending any privately-funded seminar, to investigate the

sponsors and funding sources for the seminar. Oversight hearings like this one

should shine light on judges who fail to do so. The Judicial Conference’s Codes of

Conduct Committee routinely entertains requests for advice from individual judges

and provides guidance on a case-by-case basis. If abuses occur (e.g., a failure to reVerDate 11-MAY-2000 11:57 Jan 03, 2002 Jkt 000000 PO 00000 Frm 00067 Fmt 6633 Sfmt 6621 G:\WORK\COURTS\112901\76383.000 HJUD1 PsN: HJUD1
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port or an unwillingness to take the Committee’s advice), resort should be made to

the chief judge of the appropriate circuit pursuant to the 1980 discipline Act.

The federal judiciary has a Federal Judicial Center that is legislatively assigned

the role of providing educational programs for judges on a wide variety of subjects.

Judicial education by a public institution is particularly important for newly-appointed judges in areas about which they know little. In my opinion, the Center is

one of the jewels in the judiciary’s crown. To reduce the lure of non-government

seminars at resort locations, the Subcommittee may wish to encourage the Appropriations Committee to augment the Center’s budget so that more in-house educational programs can be presented.

E. The Appointments Process. A final word should be said about the appointments

process which serves as the first line of defense against the corrupt, incapable, biased or intemperate judge. By requiring presidential nomination with the advice

and consent of the Senate for the confirmation of lifetime-tenured judges, the Constitution is rooted in the proposition that only the most qualified and respected

members of the legal profession should be appointed as federal judges. There is really no excuse for the appointment of individuals who are likely to engage in judicial

misbehavior on the bench.

VI. CONCLUSION

In conclusion, our system of judicial misconduct and disability appears to be working tolerably well. I commend the Committee for conducting an oversight hearing

on the operations of federal judicial misconduct statutes. In determining which path

to take based on your oversight, please remember the constitutional counterweight

of judicial independence. In difficult times, the judiciary is a rock of stability. Please

also remember that judicial independence must accommodate some notion of accountability. An independent judiciary is an impartial judiciary. The Hamiltonian

concern for protecting the judiciary from the other two branches provides a strong

argument for effective disciplinary procedures, short of impeachment, within the judicial branch. Towards this end, permit me to leave you with the following recommendations:

• Committee Oversight. Continue your vigorous oversight of judicial independence and accountability by hearing from representatives of the U.S. Department of Justice and high-ranking judicial officers.

• Assess why the Justice Department did not implement the National Commission’s recommendations.

• Assess why the federal judicial branch did not implement various Commission

recommendations, and particularly, why the Administrative Office of the U.S.

Courts does not make available to the Committee all final orders and accompanying memorandum required by the 1980 Act to be publicly available, and

why the judicial branch is so hesitant to make information publicly available

about the 1980 Act.

• Institutional Resources of the House Committee on the Judiciary. Consider

and acknowledge every judicial discipline complaint and keep a record of complaints; maintain the resources necessary to deal with judicial discipline and

impeachment matters; and review all final orders required by the 1980 Act

to be publicly available.

• Legislative Proposal. Draft legislation to provide that, upon conviction of a felony, a federal judicial should cease to accrue credit, through age or years of

service, towards retirement, and that a judge who has been convicted of a felony not hear or decide cases unless the appropriate circuit council determines

otherwise, and to implement other Commission legislative recommendations.

• Public Accountability of Financial Disclosure Forms. Conduct an investigation

of the availability to the public of judges’ financial disclosure forms, and the

accuracy of those forms.

• Judicial Recusal. Review the impending Federal Judicial Center descriptive

monograph on the functioning of the judicial disqualification and recusal statutes, and, if necessary, receive a special briefing by the Center and ask that

further prescriptive research be undertaken.

• Systematic Evaluation of the 1980 Act. Request the federal judiciary to update

a previous study that was undertaken in June 1992 to assess whether the Act

was working as intended and whether sufficient information is available to

the public and Congress to permit meaningful oversight.

Fast forward a couple of years as trials are being conducted against terrorists, or

appeals are being heard in such cases, and ask yourself whether you want a strong,

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and independent judiciary that maintains that highest level of ethics and conduct,

one that is fearless and incorruptible. I hope that my institutional memory, the Report and research papers of the National Commission, and my testimony will assist

your answer to this question as well as your consideration of the other important

issues before you.

Mr. Chairman, I am available to answer any questions that you or Members of

the Subcommittee might have.

APPENDIX I

NATIONAL COMMISSION ON JUDICIAL DISCIPLINE AND REMOVAL

CONSULTANTS’ REPORTS

I. CONSTITUTIONAL ISSUES

Peter M. Shane, ‘‘Who May Discipline or Remove Federal Judges?’’

II. LEGISLATIVE BRANCH ISSUES

Warren S. Grimes, ‘‘The Role of the United States House of Representatives in

Proceedings to Impeach and Remove Federal Judges.’’

Michael J. Gerhardt, ‘‘The Senator’s Process for Removing Federal Judges.’’

III. EXECUTIVE BRANCH ISSUES

Todd D. Peterson, ‘‘The Role of the Executive Branch in the Discipline and Removal of Federal Judges.’’

IV. JUDICIAL BRANCH ISSUES

Richard L. Marcus, ‘‘Who Should Regulate Federal Judges, and How?’’

Jeffrey L. Barr & Thomas E. Willging (Federal Judicial Center), ‘‘Administration of the Federal Judicial Conduct and Disability Act of 1980.’’

Charles S. Geyh, ‘‘Means of Judicial Discipline Other Than Those Prescribed by

the Judicial Discipline Statute, 28 U.S.C. Section 372(c).’’

Beth Nolan, ‘‘The Role of Judicial Ethics in the Discipline and Removal of Federal Judges.’’

Abe Krash, James S. Portnoy, Erica Frohman Plave & Sarah Kahn Saunder,

‘‘Memorandum Concerning the Constitutionality of Canons 2(c), 3(a)(6), 4(a) and

7 of the Code of Judicial Misconduct.’’

William Slate, II, ‘‘Surveys of Knowledge and Satisfaction of Federal Judicial

Discipline and Removal Mechanisms and Processes.’’

Emily Van Tassel, ‘‘The History of Federal Judicial Tenure, 1789–1979.’’

Dan M. McGill, ‘‘Disincentives to Resignation of Disciplined Federal Judges in

the Benefits Package of the Federal Judiciary.’’

Ernest Gellhorn, Kathryn M. Fenton, Barbara McDowell & J. Peter Wang, Judicial Discipline and Removal: The Experience of Article I Courts.

V. RELATED SPECIAL REPORTS

Elizabeth Bazan, ‘‘Disqualification of Federal Judges Convicted of Bribery—An

Examination of the Act of April 30, 1790 and Related Issues.’’

Jerome Marcus, ‘‘The 1790 Statute and Control of a Judge’s Tenure in Office.’’

Timothy R. Murphy, ‘‘The Effects of Criminal Prosecution of State Judges on

State Judicial Disciplinary Proceedings.’’

William Slate, II & Lucy G. White (Justice Research Institute), ‘‘New Paradigms of Judicial Discipline: Application of Foreign Models in the American System.’’

Library of Congress, ‘‘Judicial Tenure: Removal and Discipline in Selected Foreign Countries.’’

Michael Straight, ‘‘Accountability for Racial, Religious, Ethnic and Gender Bias

Misconduct and Sexual Harassment by Federal Judges.’’

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APPENDIX II

NATIONAL COMMISSION ON JUDICIAL DISCIPLINE AND REMOVAL

LIST OF CONCLUSIONS AND RECOMMENDATIONS

WITH AN IMPLEMENTATION UPDATE* NOVEMBER 29, 2001

CONSTITUTIONAL ISSUES

The Commission concludes that Article III judges constitutionally may be prosecuted,

convicted, and punished, and that the punishment may lawfully include incarceration.

The Commission concludes that Article III judges constitutionally may be subjected

to state prosecution and incarceration. Although Congress has power to create some

privileges against such prosecutions, the Commission concludes that such statutory

privileges would be unwise.

The Commission concludes that a circuit council constitutionally may use its statutory authority to assign and reassign cases, and otherwise control the judicial duties,

of a judge who has become disabled.

The Commission further concludes that a circuit council constitutionally may use its

statutory authority to control the assignment and reassignment of cases and other

judicial functions of an implicated judge during the criminal process, from investigation and indictment through the expiration of sentence, including a term of probation.

The Commission concludes that a statute providing for the removal from office of

judges who serve on good behavior under Article III by means other than impeachment and conviction would be unconstitutional.

The Commission recommends that section 201 of title 18, United States Code, be

amended to make clear that it does not authorize the removal of any judicial officer

who serves during a term specified in the Constitution.

The Commission concludes that a statute under which a judge’s compensation would

be suspended on the basis of a criminal conviction would be unconstitutional.

The Commission recommends adoption of a statute under which a judge who has

been convicted of a felony shall not hear or decide cases unless the circuit council

determines otherwise.

The Commission recommends retaining the political mechanism of impeachment by

the House and trial by the Senate as now provided in the Constitution. The impeachment process is the sole appropriate means for the removal of life-tenured judges.

The Commission recommends against a constitutional amendment under which convicted judges would be removed automatically.

The Commission recommends against the creation of a new organ of government that

would have the authority to discipline and remove federal judges.

The Commission opposes the suggestion that Congress should be able to determine

by statute the way in which federal judges are removed.

The Commission opposes any proposal under which the Supreme Court would participate in the removal of federal judges.

The Commission concludes that the current constitutional standard for impeachment,

as interpreted over the years, has been adequate to its purpose and recommends that

it not be amended.

LEGISLATIVE BRANCH

The Commission recommends that the House Committee on the Judiciary continue

to acknowledge every judicial discipline complaint. In serious cases involving potentially impeachable conduct, the Committee should conduct a follow-up inquiry or solicit the aid of the Justice Department in such an inquiry. The Committee should

continue to keep a record of the number and nature of these complaints, and report

these data each Congress.

The Commission recommends that the House ensure that its Committee on the Judiciary has the resources to deal with judicial discipline matters, and the resources

and institutional memory necessary to deal with impeachment cases as they arise.

The Commission recommends that the House Committee on the Judiciary

and the Justice Department—upon obtaining information that a federal

judge has committed criminal acts that may be inconsistent with continued

service on the bench—work cooperatively to resolve the removal issue, including, if desirable, postponing criminal proceedings.

67

The Commission recommends that the executive and judicial branches share with

Congress information that might be useful to it when it considers whether to impeach a federal judge, subject to exceptions necessary to the law enforcement function and to protect serious confidentiality interests. Congress should enact legislation, with proper safeguards, to facilitate the exchange of this information in appropriate circumstances.

The Commission recommends that the House avoid repetition of prior fairly conducted proceedings. When impeachment proceedings follow criminal convictions,

issue preclusion should be used except in unusual circumstances.

The Commission recommends that the House dispense with the filing of a ‘‘replication’’ to a respondent judge’s answer.

The Commission recommends that the Senate consider experimenting with a variety

of delegation approaches (including use of masters) to handle pretrial issues (especially discovery) prior to any removal trial.

The Commission recommends that the Senate consider amending its rules to permit

a Rule XI Committee to transmit to the full Senate each Committee member’s individual views regarding proposed findings of fact and recommendations on individual

articles of impeachment.

The Commission recommends that the Senate consider adopting rules tailored to

impeachment trials in which evidence is heard in a Rule XI Committee.

The Commission recommends that the Senate apply issue preclusion to matters necessarily determined against a judge in a prior criminal trial except in unusual circumstances.

The Commission recommends that the Senate compile a manual of impeachment

source materials for participants in the proceedings and other interested parties.

The Commission recommends that the House Committee on the Judiciary,

within its jurisdiction, exercise periodic oversight of judicial discipline, judicial ethics, and criminal prosecutions of federal judges.

The Commission recommends that the Senate review its confirmation proceedings

involving judges prosecuted since 1980 to determine whether those proceedings were

thorough and whether they revealed any problems suggesting a danger of misconduct by the nominees. The Senate review should be forward-looking, designed to

avoid problems in the future.

The Commission recommends that the House determine, in its resolution, whether

to seek both removal and disqualification in each impeachment proceeding.

The Commission recommends that, regardless of whether the House asks for disqualification, the Senate vote on disqualification from holding future office as well

as on removal from office of judges convicted in impeachment trials.

The Commission concludes that no formal institutional linkages need be established

among or between the branches of government. A permanent National Commission

on Judicial Discipline and Removal is not necessary.

The Commission recommends informal meetings of high-level representatives of the three branches of the federal government to promote oversight

and understanding of judicial discipline, disability, and impeachment.

The Commission recommends that the Administrative Office routinely provide the

House Committee on the Judiciary with all final orders and accompanying memoranda required by the 1980 Act to be publicly available.

EXECUTIVE BRANCH

The Commission recommends that the Justice Department promulgate guidelines

and procedures for its attorneys regarding the circumstances under and the manner

in which the mechanisms of the 1980 Act are to be utilized.

The Commission recommends that convicted judges who fail to accept responsibility

for their conduct not receive reduced sentences, and in any event that sentencing

judges be sensitive to the effects of their sentences on the decision of a convicted

judge to resign voluntarily from judicial office.

The Commission recommends that the FBI and the Justice Department issue explicit guidelines and procedures for the investigation and prosecution of federal

judges, and that these guidelines and procedures require the approval of the Attorney General for full-scale investigations and intrusive investigative techniques.

The Commission recommends that the Justice Department consult with the U.S.

House of Representatives at appropriate times during an investigation and prosecution of a federal judge, whenever the facts suggest that impeachment is a likely outVerDate 11-MAY-2000 11:57 Jan 03, 2002 Jkt 000000 PO 00000 Frm 00071 Fmt 6633 Sfmt 6621 G:\WORK\COURTS\112901\76383.000 HJUD1 PsN: HJUD1
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come. The timing of impeachment and criminal proceedings should be a matter dictated by the facts and circumstances of each case. Ideally, this decision should be

made by mutual agreement of the branches.

The Commission recommends that FBI full-field investigations of judicial candidates

be as comprehensive as reasonably possible to ensure sound judgments about their

integrity and qualifications.

JUDICIAL BRANCH

The Commission recommends that Illustrative Rule 1(e) be revised to provide that the complaint procedure may not be used to force a ruling on a

particular motion or other matter that has been before the judge too long;

a petition for mandamus can sometimes be used for that purpose. Discipline under the 1980 Act may be appropriate, however, for (1) habitual

failure to decide matters in a timely fashion, (2) delay shown to be founded

on the judge’s improper animus or prejudice against a litigant, or (3) egregious delay constituting a clear dereliction of judicial responsibilities. The

Commission also recommends that all councils and the several courts subject to the 1980 Act adopt this Illustrative Rule as revised. [Change made to

the commentary of the Illustrative Rule.]

The Commission recommends that a chief judge or circuit council dismissing for lack of jurisdiction non-frivolous allegations of criminal conduct by a federal judge bring those allegations, if serious and credible, to

the attention of federal or state criminal authorities and of the House Judiciary Committee. In situations where the chief judge or circuit council believe it inappropriate to act as an intermediary, the Commission recommends that they notify the complainant of the names and addresses of

the individuals to whose attention the charges might be brought.

The Commission recommends that the 1980 Act be amended to include as

an additional ground for dismissal by a chief judge that the allegations in

a complaint have been shown to be plainly untrue or incapable of being established through investigation. [Illustrative Rule amended.]

The Commission recommends that the Judicial Conference of the United States add

to the text of Canon 2 or Canon 3 of the Code of Conduct for United States Judges

an express prohibition of judicial behavior that reflects or implements bias on the

basis of race, sex, sexual orientation, religion, or ethnic or national origin, including

sexual harassment. Unless the complaint’s allegations are directly related to the

merits of a decision or procedural ruling, such behavior in a judicial capacity is an

appropriate subject for discipline under the 1980 Act.

The Commission recommends that the bar and the federal judiciary increase awareness of and education about the 1980 Act among lawyers,

judges, court personnel, and members of the public. As one part of such efforts, each circuit council that has not already done so should publish its

rules under the Act in United States Code Annotated, and a reference to

the 1980 Act and the circuit council’s rules should be included in the local

rules of each district court.

The Commission recommends that each circuit council charge a committee or committees, broadly representative of the bar but that may also include informed lay

persons, with the responsibility to be available to assist in the presentation to the

chief judge of serious complaints against federal judges. Such groups should also

work with chief judges in efforts to identify problems that may be amenable to informal resolutions and should initiate programs to educate lawyers and the public

about judicial discipline. The Commission also encourages other institutions, including the organized bar, to take an active interest in the smooth functioning and wise

administration of formal and informal mechanisms that address problems of judicial

misconduct and disability.

The Commission endorses Illustrative Rule 4(b) and recommends that the

1980 Act be amended to provide that a chief judge may conduct a limited

inquiry into the factual support for a complainant’s allegations but may

not make findings of fact about any matter that is reasonably in dispute.

The Commission recommends that chief judges seek assistance from qualified staff in reviewing complaints and preparing orders. It encourages

chief judges to consult other judges who may be helpful in the process of

complaint disposition. The Commission does not believe that the 1980 Act,

including its provision on confidentiality, constitutes a barrier to such assistance or consultation.

69

The Commission recommends that the Illustrative Rules be amended to

permit chief judges and judicial councils to invoke a rule of necessity authorizing them to continue to act on multiple judge complaints that otherwise would require multiple disqualifications.

The Commission recommends that all judicial councils adopt and strictly

adhere to Illustrative Rule 17 as it relates to the public availability of a

chief judge’s orders dismissing complaints or concluding proceedings and

any accompanying memoranda. Care should be taken to eliminate information that would identify the judge or magistrate. If action by the judicial

councils or the Judicial Conference does not result in national uniformity

on the issue within a reasonable period of time, the Commission recommends that the 1980 Act be amended to impose it.

The Commission recommends that council rules regarding confidentiality

should be nationally uniform. The relevant provisions of the Illustrative Rules

should be adopted to that end, but the uniform rules should not provide for automatic transmittal of a copy of complaints to the chief judge of the district court and

the chief judge of the bankruptcy court. They should, however, authorize a

chief judge to release information, with appropriate safeguards, to government entities or properly accredited individuals engaged in the study or

evaluation of experience under the 1980 Act. [Adopted by some circuits; not

all.] If action by the judicial councils or the Judicial Conference does not

result in national uniformity on the issue within a reasonable period of

time, the Commission recommends that the 1980 Act be amended to impose

it.

The Commission recommends that, as provided in Illustrative Rule 4(f), a

chief judge who dismisses a complaint or concludes a proceeding should

‘‘prepare a supporting memorandum that sets forth the allegations of the

complaint and the reasons for the disposition.’’ This memorandum should ‘‘not include the name of the complainant or of the judge or magistrate

whose conduct was complained of.’’ In the case of an order concluding a

proceeding on the basis of corrective action taken, the supporting memorandum’s statement of reasons should specifically describe, with due regard to confidentiality and the effectiveness of the corrective action, both

the conduct that was corrected and the means of correcting it. If action by

the judicial councils or Judicial Conference does not result in national uniformity on the issue within a reasonable period of time, the Commission

recommends that the 1980 Act be amended to impose it.

The Commission recommends that the Judicial Conference devise and

monitor a system for the dissemination of information about complaint dispositions to judges and others, with the goals of developing a body of interpretive precedents and enhancing judicial and public education about judicial discipline and judicial ethics.

The Commission recommends that the Judicial Conference, assisted by the

Administrative Office, reevaluate the adequacy of all data and reports

gathered and issued concerning experience under the 1980 Act, including

the system used to provide such data and reports in each circuit. The Commission also recommends that, as part of such general reevaluation, consideration be given to gathering and reporting data on complaints about bias

on the basis of race, sex, sexual orientation, religion, or ethnic or national

origin, including sexual harassment.

The Commission recommends that section 332 of Title 28, United States

Code, be amended to require each circuit council to report annually to the

Administrative Office of the U.S. Courts the number and nature of orders

entered thereunder that relate to judicial misconduct or disability (including delay).

The Commission recommends that the Judicial Conference adopt a uniform policy on the limitations a judicial council should impose on a judge

who is personally implicated in the criminal process. At a minimum that

policy should include ordinarily relieving a judge under indictment from

all judicial responsibilities through to the end of the criminal process and

imposing appropriate constraints on judicial responsibility where a judge

is under investigation.

The Commission recommends that Congress consider enacting a statute providing

that, upon conviction of a felony (or more specifically defined crimes), a federal judge

shall cease to accrue credit, through age or years of service, toward retirement

under the Rule of 80. [Judicial Conference passed a resolution to this effect.]

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The Commission recommends that the Judicial Conference and the circuit

councils consider programs of judicial evaluation for adoption in the federal courts.

The Commission recommends that the Judicial Conference reexamine the practice

of specifically notifying a federal judge when a request for access to the judge’s financial disclosure forms is made, to determine if valid security or other concerns

justify continuation of the practice. [Judicial Conference reexamined the practice but

expressly rejected any change.]

The Commission recommends that the public disclosure requirements under federal

law be amended to require a federal judge either (1) to certify that, to the best of

his or her knowledge, information and belief, the judge does not, except as permitted

by Canon 2(c), hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin or (2) to list all organizations not exempted under Canon 2(c) of which the judge is a member.

The Commission recommends that the Judicial Conference adopt a mandatory selfreporting rule that requires federal judges to inform designated authorities (e.g., the

circuit chief judge), on a confidential basis, whenever they have been indicted, arrested, or informed that they are the target of a federal or state criminal investigation. Such a rule should not apply to minor offenses. [Judicial Conference only urged

each council to adopt a mandatory self-reporting rule.]

The Commission recommends that the Supreme Court may wish to consider the

adoption of policies and procedures for the filing and disposition of complaints alleging misconduct against Justices of the Supreme Court.

The Commission recommends that each circuit that has not already done so conduct

a study (or studies) of judicial misconduct involving bias based on race, sex, sexual

orientation, religion, or ethnic or national origin, including sexual harassment, and

of the extent to which the 1980 Act and other existing mechanisms and programs,

including judicial education, are adequate to deal with it. The Judicial Conference

should monitor the implementation of this recommendation and when such studies

have been completed, consideration should be given both locally and nationally within the judiciary to such changes in policies, procedures, and programs as are warranted.

—————

* Italic signifies a conclusion or recommendation that does not require implementation. Bold signifies a conclusion or recommendation that has been implemented.

Mr. COBLE. Your Honor, it is good to have you here. Judge

Osteen, you are recognized as the final witness on this panel.

STATEMENT OF THE HONORABLE WILLIAM L. OSTEEN, U.S.

DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF NORTH

CAROLINA

Judge OSTEEN. Mr. Chairman, Members of the Committee, Mr.

Kendall, Mr. Remington and Professor Hellman, I want to thank

you for the opportunity to be here today.

Mr. Chairman, one correction that I would like to make your introduction. As I recall, 30 years ago when we worked together, we

worked together and not for each other. I was not your boss. But

I remember us working together well, and I shall remember those

days with a great deal of pleasure. Thank you for your contribution.

Mr. COBLE. Thank you. But you were still my boss.

Judge OSTEEN. Mr. Chairman and Members of the Committee, I

would like to rest on the testimony that I have submitted to you.

I am confident that Members of the Committee will read what I

had to say, and I tried to draft it with care to present the points

that I was trying to make.

In summary, my field generally deals with two of the things that

have been discussed here and may be on your agenda. One is the

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recusal statute of 28 U.S.C. 455, which is the embodiment of the

canon of ethics 3C(1), including C subdivision.

I want to say, Mr. Chairman, a couple of things about the attendance at seminars. I have been there. I have attended the FREE

seminar—that is capital F-R-E-E. I have attended the George

Mason seminars—three of them. And I want to say, Mr. Chairman,

that in my opinion, an effort to stifle the free flow of human discourse would be a serious matter. Judges, I believe, try to do what

they can properly and with ethical considerations at all times; and

I believe in this day, when we have substantial new legislation

coming in, substantially new ideas on various aspects of each piece

of that legislation, that a judge simply cannot keep up with some

things without the help of the Federal Judicial Center and the

independent help that it receives from other sources.

But, particularly, I want to talk about the kind of help that has

come from the seminars that I have attended. It is not telling

judges how to judge—not at all. It is telling judges, here are some

alternative things that you may think about, which may include an

opportunity to exercise your mind. And I think one of the most essential things that we can require of judges today is that we do try

to exercise our minds and not close ourselves in.

So, Mr. Chairman, with what I have said in the testimony that

has been previously submitted, I do want to say that I believe that

an opportunity for judges to obtain information, even not in the

field of judicial concern, but in other fields—in music, in philosophy

and all of the other courses that might be available—it is helpful

to judges to have access to that kind of information.

I do believe that Advisory Opinion 67 is viable and active. There

seems to be some slight indication here that this is all something

new and has suddenly been discovered in the last year or two, that

judges are attending some seminars. There is nothing new about

this, Mr. Chairman. It has been going on, to my knowledge, for 30

years and there is nothing secret about it. It is open. Turn to Web

sites and you will find exactly what is on the menu of these various

programs.

Now, I realize I am constrained by time limitations, so I want to

turn just a moment to the question of recusal because of stock ownership. I submit, Mr. Chairman and Members of the Committee,

that the judiciary has not done a perfect job, because I don’t believe

that I will ever see the time that perfection is obtained in any field.

But we strive for it, and that is what we look for.

So is this question that is raised legitimate from the standpoint

of consequence or size or volume? I say no, Mr. Chairman. I say,

there have been mistakes made; but I also say, if you take every

challenge that has been raised—which I do not—to the failure to

recuse, you will find that there have been less than 100 over the

last 3 years.

A review of how many cases are handled by judges in the last

3 years, taking a 2-year average, would be 560,000 cases. That

means of the ones that had been found by judges themselves, by

a committee or by individuals, that means that .00017 percent had

some allegation of wrongdoing about them. To put that in another

form, that is 17 ten-thousandths of a percent in which there is an

allegation that something might be wrong.

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Maybe we will get an opportunity to answer questions, which I

will be happy to do on either of those two topics or anything else

that may be posed to me. But I thank you for the opportunity to

be here.

Mr. COBLE. Thank you, Your Honor.

[The prepared statement of Judge Osteen follows:]

PREPARED STATEMENT OF WILLIAM L. OSTEEN

Mr. Chairman and Members of the Subcommittee:

I thank you for the opportunity to address the subject of seminars for judges and

the subject of judicial recusal, as the latter is addressed in 28 United States Code

§ 455 and Canon 3C(1)(c) of the Code of Conduct for United States Judges.

I. PRIVATELY FUNDED SEMINARS

INTRODUCTION

I would expect that the members of your Committee would have little idea of who

I am, so please allow me to introduce myself as it may be material to the matters

for your consideration. From my childhood through college, my father served as a

probation officer in the federal courts. In that atmosphere, I learned a great respect

for the federal judiciary. During law school, my admiration for the integrity of the

court increased with each opportunity I had to visit the federal district court. Judge

Johnson J. Hayes of the Middle District of North Carolina was my first hero.

Throughout 30 years of private practice of law, my specialization was almost exclusively in federal court litigation, both civil and criminal. My private practice was

interrupted by the five years I served as United States Attorney. Ten years ago, I

was appointed to the federal bench. I have for six years been a member of the Judicial Conference’s Committee on Codes of Conduct. I presently serve as its chairman.

I do not consider myself an expert in the field of ethics for federal judges, but I am

an avid student of the subject. The only experts of my acquaintance are Judge Raymond Randolph of the D.C. Circuit and Judge Carol Amon of the Eastern District

of New York, both former Chairs of this Committee, along with two current members of the Committee.

The significance of this historical reflection prompts me to state, perhaps

immodestly, but very proudly, that few people here today have longer admired, both

personally and professionally, the integrity and independence of federal courts. I believe my enthusiasm for the third branch of government is shared by all of my judicial colleagues.

SEMINAR PARTICIPATION

In the interest of full relevant disclosure, I have attended the Foundation for Research on Economics and the Environment (FREE) seminar in Bozeman, Montana—

not at a dude ranch, as some may suspect, but at an accommodation with a nice

restaurant, a reasonably good meeting room, and sleeping accommodations in surrounding cabins. It was an interesting seminar concentrating mostly on past,

present, and anticipated future attempts to save Yellowstone National Park. I have

also attended three George Mason School of Law, Law and Economics Center seminars. The first was a basic introduction to Economics and Statistics. As a college

graduate in Economics, I was able to follow a good deal of the lecture material. The

second seminar involved microeconomics and other advanced theories of economics.

I struggled substantially to keep up with new theories and application of economics.

Finally, the last was a seminar entitled ‘‘Individual Responsibility and Culture,’’ in

which among others, the writings of St. Augustine, Burke, Rousseau, and Nietzsche

were examined—an absolutely fascinating presentation.

All of the LEC seminars were intellectually taxing, requiring much advanced

preparation with reading before and after arrival at a nice Tucson, Arizona, hotel.

There was some time for relaxation, but I chose sightseeing and I played golf—all

at my own expense.

As easy as it would be, it is not my purpose or responsibility to proclaim the preeminence of the George Mason LEC in its field, but make no mistake, I believe the

LEC selects lecturers with impeccable credentials and does an excellent job of helping judges exercise and improve the use of their intellect and judgment. I could not

discern from the lectures and association with the LEC leadership whether it espouses a liberal or conservative philosophy. The programs were highly academic and

not political. Some of the lecturers were Nobel laureates—Milton Friedman and

Paul Samuelson. Others were nationally acclaimed academics in their chosen

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fields—Francis Fukuyama of George Mason; George Priest, Yale Law School; Gordon Wood of Brown; Jean B. Elshtain, University of Chicago Divinity School; and

two of my personal favorites, Orley Ashenfelder of Princeton and Charles Goetz,

University of Virginia Law School—none of whom shared their political philosophies. All lecturers were highly competent in their chosen fields of endeavor. None

would have sullied their own reputations by attempting to instruct judges on how

to judge. They exposed our minds to reason and alternative fields of academia. The

audience of judges included a few individuals appointed by Presidents Carter and

Reagan and a pretty even number of individuals appointed by Presidents Bush and

Clinton.

ATTRIBUTES OF JUDGES

In order to address the appropriateness of privately-funded seminars, we should

first consider what we expect judges to be. Contrary to the urging of some, I do not

believe judges should separate themselves from human discourse. Of course, the

public has an absolute right to expect that judges will maintain the integrity and

independence of the third branch. Judges should avoid impropriety and the appearance of impropriety in all activities. Judges should perform their duties impartially

and diligently. All of this is in keeping with the Code of Conduct for United States

Judges and the later-enacted statutory version 28 U.S.C. § 455. The standard has

been prepared for and set by judges themselves. No other group has prepared its

own code of conduct subject to such exemplary or strict requirements. All of this is

part of, but not the full measure for, defining excellence in the Judiciary.

I submit that a good judge is one whose mind remains active and alert. It would

be inappropriate to require tunnel vision of judges, for you would soon find that the

judges had closed out the ability to evaluate factual and legal concepts. I know that

the Chairman of your Committee had an active trial practice before becoming our

Congressman and perhaps others of you have experienced trial practice. You may

draw your own conclusions, but as for me, I preferred to appear before a judge who

had an active, inquiring, and challenging mind, one who could decipher complicated

issues of technology and change, and understood the precedential value of legal history, along with the common sense to appreciate the value of everyday life. I submit

that a judge can best fulfill the obligation of this responsibility by maintaining an

active, personal interest in mind-improving experiences, such as music, art, baseball, religious study, principles of economics, political history, and the list goes on

and on. Judge Learned Hand captured the point poignantly when he said,

I venture to believe that it is as important to a judge called upon to pass on

a question of constitutional law, to have at least a bowing acquaintance with

Acton and Maitland, with Thucydides, Gibbon and Carlyle, with Homer, Dante,

Shakespeare and Milton, with Machiavelli, Montaigne and Rubelais, with Plato,

Bacon, Hume and Kant, as with the books which have been specifically written

on the subject. For in such matters everything turns upon the spirit in which

he approaches the questions before him.

Listening to Nobel laureates Paul Samuelson and Milton Freedman, or such outstanding notables in their fields, I have already named, is part of continuing education for judges much to be desired. These are the types of presentations for which

an institution should receive commendation—not condemnation.

CRITICISM OF SEMINARS

I read with interest, though much disagreement, the submission to this Subcommittee by Mr. Kendall of the Community Rights Counsel. First, let me address

a few small matters perhaps included in his comments to arouse suspicion. His

paper refers to the LEC and FREE seminars as junkets to exotic, posh places. That

is obviously an attempt to arouse your emotional animosity. Interestingly, and quite

properly, no one voices an objection to the Federal Judicial Center’s seminar locations as either junkets or exotic. Now, I ask you which are more exotic—Miami, San

Diego, Portland, Philadelphia, Cold Springs Harbor—sponsored by the FJC or Tucson and Bozeman, privately sponsored? None were posh. Frankly, I liked them all,

except one. None of them appeared to be ‘‘exotic’’—I found all of the places to be

appropriate. While I have no personal knowledge, I am reliably informed that seminars can be held in such locations at considerably less expense than in Washington

or New York. I should note in passing that the FJC does an excellent job of seminar

planning for both location and content. My comparison here in no way impugns the

quality or the frugality of its presentations.

Second, Mr. Kendall would have you believe that concern about these seminars

is of recent origin when he says, ‘‘three years ago when word of these trips first

came to light. . . .’’ An even cursory review of the public record establishes that

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since the early 1970’s the Aspen Institute, the University of Miami’s LEC, the Danforth Foundation, New York University, Center for Advanced Studies at Stanford,

the Einstein Institute, various Ford Foundation funded enterprises, and others too

numerous to mention, have been inviting judges to seminars. Law schools have offered free opportunities for judge participation in seminars for many years before

that. In 1978, the Advisory Committee on Judicial Activities (predecessor to the

Committee on Codes of Conduct) advised that judges could accept those invitations.

News articles in 1979–80, including The Legal Times, Fortune, and The Washington

Post, publicly discussed private seminars for federal judges. So, to claim that this

is a new exposure simply, at best, overlooks the obvious. I believe that the George

Mason LEC program has been in existence for 25 years. It is listed on a website

where a review of its courses and subjects are available to anyone upon inquiry.

There is, however, a more serious allegation by the CRC which results from an

incorrect understanding of Advisory Opinion 67. To set the stage, Mr. Kendall

quoted my telling ‘‘20/20,’’ ‘‘I have no idea where [LEC] gets its money.’’ This is obviously intended to prove that I have a callous disregard for an ethical obligation. Mr.

Kendall did not consult me about this quote, and he was not obligated to, but if he

had, he would have found that I advised ‘‘20/20’’ that it was unnecessary to check

on the source of funding to George Mason because, under the circumstances, Advisory Opinion 67 does not require it. It requires that I determine the detail of funding if the source is involved in litigation or likely to be involved and the topics covered in the seminar are likely to be in some manner related to the subject matter

of litigation pending or impending before me. Of course, the explanation never made

it through the cutting room at ‘‘20/20.’’ The linchpin of CRC’s major complaint is

thus misplaced. It is my understanding that corporations contribute no more than

a token portion toward seminar expenses. In fact, support for George Mason LEC’s

seminars comes mostly from other than corporations. In 2001, corporate support accounted for 13% of LEC’s revenues. The average corporate donation was 0.7% of revenue.

Certainly, judges must be mindful that if a seminar is sponsored by actual or potential litigants in a judge’s court and the topics covered are likely to be related to

the subject matter of the litigation, then a judge should not attend. That would be

in conflict with the rules of conduct and I think we would all agree that it would

be inappropriate. Advisory Opinion 67 is quite clear in reaching that decision.

Other criticisms on this subject appear to rest on faulty assumptions. For example, there is the assumption that the seminars are designed by corporations in litigation before the attending judges. Yet, I have seen no evidence to support that assumption. On the contrary, the seminars in question were offered by a private foundation (FREE) or a law school (George Mason). Each was responsible for the design

and content of the program. Not only did the seminar planners inform us of this

fact, but it is borne out by the fact that each seminar asks judges to rate the faculty

and make suggestions for change. George Mason University is on record that its judicial seminars are funded completely by the Law and Economics Center and it has

established a Judicial Advisory Board consisting of distinguished jurists from

throughout the nation whose responsibilities are to suggest and help select appropriate subjects and places for its seminars.

Second, there is an assumption that judges who attend these seminars are improperly influenced by corporate interests. The supporting evidence for that assumption is also missing. Besides, Advisory Opinion 67 counsels: ‘‘Judges are continually

exposed to competing views and arguments and are trained to weigh them.’’ Let me

suggest that in this modern day of proliferating litigation, some caused by Congressional enactment, some by increased population, and some by the nimble minds of

a litigious society, seminars are a necessity. Judges need exposure to ideas and concepts. This would be true even if some presentations are not balanced in content.

Judges are constantly faced with unbalanced presentations in the course of litigation and early on recognize that the law contains more ponderables than absolutes.

The fact that some presentations are not balanced should not prevent exposure to

new and innovative and sound reasoning.

THE ADVICE IN ADVISORY OPINION 67 IS VALID

There is substantial proof that Advisory Opinion 67 is well reasoned and appropriate. For 21 years that opinion has been in place and there is no evidence that

judges are making improper decisions after attending a privately funded seminar.

How am I able to assert that? The same way we evaluate all other decisions—by

looking at the appellate process. The appeals or lack of appeals—which are just as

telling—reveal that judges are not being improperly plied with propaganda. That

record speaks volumes.

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The Second Circuit Court of Appeals in Aguinda v. Texaco, 241 F.3d 194 (2nd Cir.

2000), met head on this same issue which CRC raises today. Judge Winter writing

for the unanimous court reviewed Advisory Opinion 67 and the statutory counterpart, 28 United States Code § 455(a) and concluded that there was no actual or perceived impropriety in the trial judge’s private seminar attendance. The standard

used in arriving at that decision was the perception in the eyes of a reasonable person. The Chief Justice of the Supreme Court has spoken eloquently in support of the

continuing opportunity for federal judges, and I quote, ‘‘Seminars organized by law

schools, bar associations and other private organizations are a valuable and necessary source of education in addition to that provided by the Federal Judicial Center.’’

Most emphatically, the Federal Judges Association, on September 18, 2000, voiced

its support for privately funded seminars and its objection to an impingement upon

legitimate First Amendment rights. But, for a moment, let’s examine that. Suppose

you do have a right to limit my access to private seminars which invite me without

cost. Could you prevent my attendance if I pay for it? I think not. Then what have

you accomplished? Is the objection because it is free or because of its content? And

further, if you could limit my access to free or paid for education—what then? I will

have the option of the Internet. I can also pay for my own volumes which may be

more unbalanced. With all due respect, the Congress should abstain from any attempt to limit the access of judges to knowledge and information. The Judiciary

itself has exercised the responsibility and it possesses the capability to continue to

set its own code of conduct for learning opportunities.

Significantly, the organization of attorneys specializing in federal practice, The

Federal Bar Association, 15,000 members strong, supports the continuing opportunity of education at private seminars for federal judges.

Finally, the United States Judicial Conference has continually reexamined the

educational opportunities for judges over the last 20 years and concluded that our

present opportunities are appropriate. The Judicial Conference has made no recommendations for change.

PROBLEMS WITH LEGISLATION

It imposes a serious threat to the separation of the branches of government for

one branch of the government to impose its will on the other by limiting access to

knowledge.

As much as I respect the Federal Judicial Center, I do not choose that group or

any other as the censor of my right to increase my knowledge. Neither do I want

any group to determine for me when I have had a balanced meal or a balanced

input of knowledge.

The Federal Judicial Center, with its excellent organization, has neither the necessary funding nor the manpower capability to set and provide appropriate parameters and programs for my access to knowledge.

Legislation which closes a circle around judges necessarily closes out important

and helpful local and state and national bar associations, law schools, and generally

all institutions of higher education. It would probably prohibit our association with

other government entities. It could, for example, prohibit my attendance at a church

retreat focusing on the relationship of church and state, or other meaningful community subjects.

CONCLUSION

The Judiciary has set imposing and adequate standards for judicial education

which have been successful over a long period of time. Courts have affirmed the opportunity for judges to acquire knowledge. Lawyers with federal trial experience

have endorsed the educational opportunity programs.

The wheel is not broken, it is not bent, and is operating efficiently. Relevant evidence reflects that Congressional intervention is not required and such attempt

could have extremely damaging and unjustified ramifications.

II. RECUSAL UNDER 28 U.S.C. § 455

AND

CODE OF CONDUCT FOR UNITED STATES JUDGES, CANON 3(C)(1)

INTRODUCTION

Canon 1 of the Code of Conduct for United States Judges states that judges

should uphold the integrity and independence of the Judiciary. Canon 3C(1)(c) requires a judge to recuse or not participate in litigation in which the judge or the

judge’s spouse or minor child residing in the judge’s household owns stock. All other

canons are aspirational—only 3(C)(1) is mandatory. Congress has enacted 28 United

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States Code § 455, which is a mirror image of Canon 3C(1)(a)-(e). It is absolutely

clear that judges cannot preside over litigation in which the judge or his wife own

stock in the litigant. This is an appropriate, understandable requirement and is not

subject to debate. We, as judges, should strive for and the public has a right to expect compliance with that mandate.

HISTORY OF RECUSAL

The standards for recusal of federal judges are set forth in 28 U.S.C. § 455 and

the corresponding Code of Conduct for United States Judges, Canon 3C(1). These

provisions, which date from the 1970’s, have historical antecedents stretching back

centuries, even millennia. Principles of judicial fairness are reflected in ancient Talmudic writings. Early Jewish and Roman civil codes also provided for disqualification of judges due to personal relationships or bias. In our more recent legal tradition, the British common law allowed for disqualification of judges due to financial

interest.

The earliest statutory provision in this country dates from 1792, when Congress

provided for disqualification of judges who had an interest in a matter or had previously acted as counsel in a cause. Similar fundamental values are embodied in the

Constitution’s due process clause. Trial by an impartial judge is considered an essential element of due process in judicial proceedings.

Over the past two centuries, Congress has expanded the statutory recusal standards to address a number of specific situations. For example, under 28 U.S.C. § 455,

judges are disqualified from handling matters if they previously served as an attorney in the matter, or if a close relative is involved as a witness or party, or if they

know they have a financial interest in one of the litigants. In each of these situations, reasonable questions about a judge’s impartiality are simply presumed, irrespective of the particular facts and circumstances. These situations fall within the

specific recusal standards of the statute.

Judges may also be disqualified under § 455’s general recusal standard. That

standard provides for disqualification in any proceeding in which the judge’s impartiality might reasonably be questioned. Under this standard, disqualification is not

assessed from the perspective of the litigants or the attorneys or even the news

media. Rather, it is assessed from the point of view of a reasonable person informed

of the relevant circumstances that a reasonable inquiry would disclose.

These general and specific standards have been incorporated in § 455 for several

decades. I believe the statute sets forth appropriate standards of conduct and has

operated effectively. This is due in large part to the approach Congress adopted.

That is, the statute provides for automatic disqualification only in circumstances

where there is general consensus about likely partiality or where (as in the case of

disqualification due to financial interest) there is some advantage to a bright line

rule. Further, the statute does not attempt to anticipate every possible disqualifying

scenario that might arise but instead addresses a limited number of predictable situations that commonly occur. The general disqualification standard serves as an

overall check on judicial conduct falling outside of the specific, listed scenarios.

As a practical matter, the federal disqualification statute relies on individual

judges to make individual assessments about their ability to handle a matter fairly

and impartially. Fact-specific determinations are an essential part of this process.

While individual judges are responsible in the first instance for deciding whether

to recuse or not, their determinations are ultimately subject to appellate review. Indeed, federal appeals courts have not hesitated to review district judges’ recusal determinations when they have been challenged by way of mandamus or appeal. Just

this year, courts of appeals in Washington, D.C., and in Boston ordered district

judges to recuse because of concerns that their comments to the press gave rise to

reasonable questions about their impartiality: United States v. Microsoft Corp., 253

F.3d 34 (D.C. Cir. June 28, 2001), and In re: Boston’s Children First, 244 F.3d 164

(1st Cir. March 2, 2001).

RECENT DEVELOPMENTS

In 1998, a reporter for the Kansas City Star, Joe Stephens, brought to our attention that in some 57 cases judges had issued one or more orders while the judge

or the judge’s spouse owned stock in a litigant. Since then, CRC, which requested

and was given access to judges’ financial filings, claims to have found 17 more cases

in which judges or spouses owned a disqualifying interest. Based on these two facts,

CRC blatantly concludes and I quote, ‘‘judge [sic] are honoring in the breach the

golden rule against ruling in cases in which they have a disqualifying financial conflict of interest.’’ That conclusion, which presumes that the Judiciary is intentionally

violating ethical standards, is absolutely incorrect. Please let me explain.

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First, in the interest of fairness, I must state that CRC’s research is incomplete.

In addition to the previously mentioned cases, in Minneapolis, it was alleged that

judges had issued orders in four cases, while possessing a disqualifying stock interest. In New York, it was contended that approximately 14 cases had been improperly handled. At least four other cases have been reported throughout the country.

That is a total of 96 cases rather than CRC’s alleged 74 matters.

Second, there are important matters that CRC has conveniently left unsaid, such as:

• in a large number of cases, the judges had ruled on non-substantive matters—such as setting schedules for pretrial discovery or granting extensions

of time within which to file pleadings;

• in some cases, spouses had purchased stock without the judge’s knowledge;

• some litigants had purchased entities or had been purchased without the

judge’s knowledge;

• in a few of the cases, the allegations of wrongdoing were incorrect for having

been erroneously based upon the yearly financial disclosures rather than current recusal lists.

• even critics concede they have no evidence that judges profited individually

or skewed their decisions because of their stock holdings;

• and, yes, in some cases, the presiding judge had, for whatever reason, failed

to recuse.

In not a single one of the reported 96 cases has there been a reversal on substantive grounds. There have been no appellate decisions reversing the trial judges

for reaching the wrong substantive decision. I am not offering these mitigating factors as an excuse or justification for imperfection, but they conclusively reveal no

intended harm or resulting harm.

But let us for a moment consider the size of the problem by adding the 74 cases

cited by CRC and the additional 22 cases, for a total of 96. These cases represent

all allegations found over a three and one-half year period. In 1999, an average

year, there were 264,000 new civil cases filed in federal court. Using the two-year

average life expectancy of federal litigation, that means during 1999 and 2000, there

were approximately 528,000 active cases within various federal jurisdictions. Assuming that in each of the 96 cases there was improper judicial participation, it follows that in 0.00017% of all cases in the federal system, there is evidence that a

judge may have signed an order or presided when the judge should have recused.

That’s not perfection, but it is mighty close. It refutes CRC’s contention of honor

in the breach.

Now, since the original Kansas City Star article, a number of entities and individuals, including Joe Stephens and CRC, have filed requests for my annual financial

disclosures. I have more than a hunch that financial disclosures for all federal

judges have been meticulously reviewed. Since 1998, the number of Canon 3(C)(1)

and § 455 allegations has continually decreased. This is not by accident. I, for one,

want to credit Joe Stephens for doing an outstanding reporting service. He has

made judges acutely aware of the consequence of failure to demand perfection in our

recusal responsibilities. But other things have happened to improve our system. We

now have computer-assisted automated conflicts screening. Federal rules have been

amended to require disclosure of corporate parents for litigation. Model checklists

have been developed to assist judges in preparing recusal lists. (See attached exhibit.) The Judicial Conference has been much involved in assisting judges with

their obligation.

Also, I am extremely proud of our Codes of Conduct Committee. Before 1998, we

were fulfilling our assigned responsibilities by advising judges upon their inquiries.

We were not and are not an enforcement or investigative agency. However, because

we recognized a need, members of our Committee have made themselves available

to all bankruptcy, magistrate, and district judges’ conferences to discuss this important matter of recusal. We have offered to speak to all circuit and national conferences of judges. With the help and support of the Federal Judicial Center, we

have received invitations to speak at recent conferences of judges. (See attached list

of our Committee’s participation and training seminars.)

It has been argued that obtaining a judge’s annual financial disclosure report presents great difficulty, apparently for the reason that judges are notified when a request is made. I disagree that such notification causes the requester great difficulty,

but for the moment let us suppose that it does. What’s wrong with notification? The

financial statements contain a great deal more information than would be helpful

to a litigant. To some extent, the difficulty prevents ‘‘judge shopping.’’ It enables

those responsible for security to be alert to matters which may cause danger to

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judges. The public knowledge of a judge’s financial condition has in some instances

enabled the unscrupulous to frivolously and improperly levy upon and harass a

judge’s financial holdings. Especially in these times when heightened security measures are required, great care should be used in determining whether and the extent

to which financial information should be made public.

Since the financial reports are yearly documents, they cannot be relied upon for

recusal concerns. Judges like other citizens may and should restructure and compose their financial holdings much more often than a yearly statement would reflect.

Thus, an up-to-date recusal list is more valuable than the financial statement for

litigants.

For the same reason I support limited access to financial statements, I oppose the

requirements of publicly filed recusal statements. There are many unique and quite

different potential problems of security, harassment, judge shopping, and other distractions throughout the nation. What works in Greensboro, North Carolina, may

be completely ineffective in Detroit or Denver, or New York. Let me give you an example—I still list my home telephone and address in the telephone directory. Although our U.S. Marshal protests my listing, it has caused me no difficulty. Public

listing in some places throughout this country would border on stupidity or at least

bad judgment. The same is true of public disclosure of recusal lists. Judges must

be allowed to make their separate and necessary assessments based upon familiarity and uniqueness of their potential difficulties.

While I do not post my recusal list publicly, it is maintained in the Office of the

Clerk. Upon inquiry of the Clerk, an individual may view that list, and I am not

notified. So far, that has worked for me, and I will continue it until necessity requires a change. But I reiterate, what works for one may be legitimately unacceptable for another. Judges should have the right to make their own decisions on publishing or not publishing. I submit that the Judicial Conference is in the best position to determine the need for and the timing of rules concerning publication.

CONCLUSION

There is no evidence that failure to recuse for stock ownership is a pervasive matter. It is, however, important. The record of the Judicial Conference, the Federal Judicial Center, the Administrative Office of the U.S. Courts, individual judges, and

the Committee on Codes of Conduct quite clearly indicates that the problem has

been and will continue to be addressed. The record shows substantial reduction in

the amount of errors occurring, and we will enthusiastically continue to strive for

perfection. That goal will be best addressed by the Judiciary itself.

I want to emphasize that I am not requesting legislative amendment to the statute, and the Judicial Conference has no pending recommendations on this subject.

I believe this reflects the consensus view within the Judiciary that the recusal statute is functioning properly and no reform is needed.

I thank you, Mr. Chairman, and the Members of your Subcommittee.

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Mr. COBLE. And thanks to each of you.

As you just said, Judge, there is no entity or group of people

known to me that scores perfectly. We have rotten Members of

Congress. Most of us, I think, are pretty good people. I am sure

most of the judges are.

This Committee—Howard, you will remember—I don’t think—

the two bills that are involved—we had to impeach judges. Not a

pleasant undertaking at all. But on balance, I think the Federal judiciary is well represented.

Gentlemen, if you all concur, and Lady, we may have two rounds

here, if time permits, because I think this is an issue that needs

to be thoroughly examined. Let me put this question to each of the

four, if I may, and ask you to offer a very general opinion as to the

ethical state of our Federal judiciary.

First, do you believe that the great majority of Federal judges

discharge their constitutional responsibility in an appropriate manner—A? B, do you believe that the existing statutory and canonical

mechanisms, especially the Judicial Conduct and Disability Act,

the recusal statutes and the code of conduct, work well and ultimately help to bolster public confidence in the Federal judiciary?

Mr. Kendall, let me start with you.

Mr. KENDALL. My answer to the first question is absolutely. I

think the judicial branch, as a general matter, is the envy of the

world. And, general matter, judges are exercising their constitutional authority both appropriately and excellently.

Regarding the second question, I don’t think the misconduct and

recusal statutes are doing a good enough job about policing legal

and technical, or legal and ethical, obligations that do not rise anywhere near to the standards which would require impeachment. I

don’t think there are effective enough penalties now in place to police, for example, nondisclosure of information on disclosure forms,

nondisclosure of a trip or stock conflicts, a contrast.

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For example, what would happen if a Department of Justice attorney was found to have stock in a company that he was prosecuting? As I understand it, that attorney would be looking for a

new job. And on the way out the door, he might be saying something about how his wife had obtained the stock or that it was a

minor amount of interest, and he would be telling that to his next

employer.

Now, contrast that to what happens in the stock-conflict category

with judges. And I am not aware of any disciplinary action of any

form taken against any of the judges that have been identified as

having stock conflicts, for example, in the Kansas City Star story;

maybe there are some in the Kansas City Star story identifying

stock conflicts. So I don’t think the judicial misconduct statutes are

effectively policing what some would say are minor unethical legal

transgressions by judges.

Mr. REMINGTON. As to the first question, I would say yes. As to

the second, I used the phrase ‘‘reasonably well.’’ I think the statutes are working reasonably well. There have been a great deal of

improvements through congressional oversight since 1980.

Bear in mind that the Commission itself was created to study the

operation of this statute and concluded that the judicial discipline

and misconduct statute was working reasonably well. But I also

agree that improvements could be made. I particularly agree with

Professor Hellman’s statement that not enough is known or understood about this statutory scheme.

Thank you.

Mr. COBLE. Professor?

Mr. HELLMAN. Thank you, Mr. Chairman.

Yes, I agree with Mr. Remington’s comments and the first part

of Mr. Kendall’s. The Federal judiciary is composed of people who

are overwhelmingly ethical in their behavior and in their instincts.

And it might be useful to just say one or two words about why that

comes about.

I think part of the reason is what I mentioned in my initial comments, the appointment process. People who are ethically challenged don’t get through that process. It is a very, very demanding

kind of scrutiny.

Second, there is an elaborate structure for reinforcing ethical

norms, and it works within Judge Osteen’s committee and works

within the circuits, it works within the districts and it works at

every level of the judiciary.

The third thing I would like to mention, because it perhaps is not

as self-evident as the others: the judiciary has an excellent staff;

and I think if we had a chance to talk a little bit more about the

informal processes, we shouldn’t understate or overlook the result

of staff. Sometimes lawyers would not be willing to talk to a judge

about a problem, but a staff person may hear about it, and a good

staff person will get the word either to the judge who is the subject

of the comment, or to the chief judge or somebody else in power.

So the conditions are optimum, I think, for high ethical behavior

by the judiciary, and that is what we have.

Thank you.

Mr. COBLE. Judge, I think if you answer favorably, you are selfserving. But I would be happy to hear from you nonetheless.

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Judge OSTEEN. It would be, but except for one thing, Mr. Chairman, which may not be known generally. That is, in addition to the

innate ability in what I think is a tremendous ethical standard

built by judges themselves. I can speak relative to the Code of Conduct Committee for just a moment.

I have been a Member of that Committee for 61⁄2 years now, and

every Member of the Committee reviews every single inquiry that

is made of judges. During that time, there have been judges—I believe that it would be an accurate figure to say, in 61⁄2 years, about

4 to 500 inquiries, formal inquiries, of the Committee by judges

themselves asking, is this type of conduct in keeping with the code

of conduct?

Our Committee has no authority to police. It has no authority to

demand that anybody do anything. We simply advise. And I am

happy to say that I am not aware of a single incident in which the

Code of Conduct Committee has issued an opinion which the judges

haven’t complied with. And some of them are very close questions.

And I don’t mean their questions indicate that they are trying to

go out on the cutting edge to plow new ground, but in the framework of relatively few very strict canons of conduct, judges are trying to comply with what is required of us, not only from the standpoint of what actually is required, but from the perception of what

is required also.

Mr. COBLE. Thank you, Your Honor.

Even though the red light is not on because of a faulty machine,

my time has expired. The gentleman from California.

Mr. BERMAN. Thank you, Mr. Chairman.

Judge Osteen, I have—I don’t know if it is a comparable experience, but I have the misfortune of being the Ranking Democrat on

the House Committee on Standards of Official Conduct, the ethics

committee. And so I get involved in this miserable self-regulatory

process. And in some ways, at least in the Federal judiciary, you

are dealing with a large number of people all over the country that

you don’t have direct contact with on a regular basis. Here it is a

little more intimate, and it is a tough job.

And so I commend you for being a part of that process, because

I don’t—I am not sure what the better alternative is than self-regulation and this process, but it is never comfortable to have to

judge—make judgments about your peers.

First, this question of financial disclosure. There has been a

theme from one or more of the witnesses that the financial disclosure obligations on judges are there, but they are not always enforced. We have the same—we have a situation here where Members and staff have to file financial disclosure forms; and from the

time in May, when those forms are due, for the next number of

months, both the staff of the Committee that I serve on, and even

people sent over from GAO, systematically go through each financial disclosure form and compare it with previous forms to see what

comes out from that, at least that facial review of the forms filed

and whether there is the need for changes or corrections, or indications of improprieties, violating outside earnings limitations, things

like that.

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What is the process for some check on whether or not the forms

filed, at least on their face, comply with the obligations to make financial disclosure?

Judge OSTEEN. Congressman, I can speak personally from that

because I file a financial statement with the appropriate places

each year that we have had one. Practically each year I received

a letter back from the Members of the Committee saying, Would

you explain this, would you explain that. And it is pretty much in

detail.

Now, I believe that I tried to explain, when I filed the statement,

what my situation was, but I can assure you that it is not taken

for granted by that Committee.

Now, I am not on that Committee, the financial disclosure, but

I file my statement annually—and not only I, but my secretary will

vouch for this, too—but practically every year we get a return saying, Please explain this.

Mr. BERMAN. You are saying there is a systematic process of review of the financial disclosure forms?

Judge OSTEEN. I can say every single one filed by district judges

and, I assume, every other judge is reviewed by someone outside

the circuit in which I reside. For instance, mine would not be handled by someone in the Fourth Circuit but somewhere else. Somewhere down the line it is reviewed by someone on the Committee.

Mr. BERMAN. There are limitations, of course, to that process. A

person who willfully does not include or perhaps even inadvertently

doesn’t include something that he or she was required to include,

that kind of review will not—will probably not detect that omission.

Judge OSTEEN. Oh, no. It would not.

Mr. BERMAN. I think, Mr. Kendall—I think it is Mr. Kendall who

mentioned, are these educational seminars? We are required to report when we go on one of these seminars that they have some connection with official duties.

Judge OSTEEN. You wouldn’t call it a ‘‘junket,’’ would you?

Mr. BERMAN. We call them ‘‘fact-finding missions,’’ but not crusades. But I take it there is an obligation—the implication—an obligation to report those seminars.

Judge OSTEEN. The value of the reimbursement and the value of

the seminar itself.

Mr. BERMAN. What happens to the 19 judges, if that is accurate—the number isn’t that important—who didn’t report that?

Judge OSTEEN. Well, my guess is—and I don’t know what has

happened to those because I can’t speak personally. The ones—

whichever one you may select, I know of no particular number of

judges who did not report that.

I do know that in the beginning, there was some question about

whether and how to report that, and some judges did not until it

was called to their attention by Members of the Committee. And

the AO also sent out information saying essentially that this kind

of thing must be reported on the form. So what has happened to

specific people.

I don’t know the answer to that.

Mr. BERMAN. Just on that issue, because my time has expired,

tell me what—elaborate on this notion that 19 didn’t file. How do

you know?

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Mr. KENDALL. I know that about 12 percent of the judges who

were on a list prepared by FREE—— Mr. COBLE. Mr. Kendall pull that mike a little closer. My hearing

is failing in my old age.

Mr. KENDALL. Community Rights Counsel obtained a list that

FREE put up as part of their invitation to new judges, which included all the judges who attended their programs between 1992

and 1996. We then compared that against the Federal judges’ disclosure forms for those years and found that 13 of those 109 judges

hadn’t reported it. It is like 17 or 18 didn’t report it originally, and

then four or five reported it after this issue came to light.

And the financial disclosure office sent this letter to every judge

saying, If you didn’t disclose it, you really have to now. So four or

five did disclose it afterwards; 13 never did despite that warning.

So there is a problem of nondisclosure. Not every judge—the disclosure requirement is clear, and I think the vast majority of

judges understand it and comply with it. But a considerable minority do not. And, second of all, there is a problem of judges not disclosing everything that financial disclosure law requires. As Judge

Osteen just mentioned, disclosure law requires that you disclose

the value of the gift, and judges are almost never doing that.

Mr. BERMAN. I know my time is up, but you refer to it as a ‘‘gift.’’ we do not refer to—I will be personal here.

One of the most valuable experiences I have in Congress is participating in Aspen Institute seminars on different subjects. They

are ongoing seminars that occur yearly and usually at a nice place.

Aspen Institute funds them, and we bring in top experts from

around the country and the world. We don’t call that a ‘‘gift.’’ I

mean, we call that a trip connected with our official business for

which we are reimbursed; and we disclose who funds it and the

value of what we were reimbursed, but we don’t call it a ‘‘gift.’’. Mr. KENDALL. As I understand the judiciary’s regulation that implements the Ethics Reform Act, tuition, room and board, things

paid directly by an organization like FREE are considered gifts,

and those must be disclosed and the value of those must be estimated.

Mr. COBLE. Thank you, Howard.

We are going to have a second round, folks. I think this is an

issue that needs to be thoroughly examined. We have been joined

by the distinguished gentleman from the Roanoke Valley of Virginia. Let me recognize Mr. Jenkins first since he was here prior

to your arrival.

Mr. Jenkins.

He also, by the way, was a judge in his earlier life.

Mr. JENKINS. Let me ask a question.

Judge Osteen, you mentioned a number of cases, 560,000 cases

over what, a 2- or 3-year period?

Judge OSTEEN. What that is, Congressman, is in 1999 there were

264,000 cases filed in Federal jurisdictions throughout the United

States. It ordinarily takes about 2 years for an average case to run

its course in the Federal system. So since we were talking about

taking 2 years to run its course, I have simply taken two averages,

264,000 twice, to come with 520,000 cases. That is 264,000 each

year.

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Mr. JENKINS. All right. And the fractional amount, or number

that you mentioned, was 17 ten-thousandths?

Judge OSTEEN. Yes, sir.

Mr. JENKINS. Is that the number of cases in which allegations of

impropriety were made?

Judge OSTEEN. Yes.

Mr. JENKINS. In the number of cases, how many is that?

Judge OSTEEN. Number of cases, it is less than 100. The originator of the information to the public was Joe Stevens of the Kansas City Star, who found what he considered to be 57 questionable

cases. Mr. Kendall and the CRC found an additional 17 cases and

reported those. But in the interest of putting the whole matter on

the table, I added to that ten cases from New York, seven cases

from Minneapolis and four cases from all over, making almost

100—or a little less than 100, but I rounded it off to 100.

Mr. JENKINS. In those cases where there were allegations of

wrongdoing, do you have any information on the number where

there was a conclusion at the outcome of that case that there was

found to be wrongdoing?

Judge OSTEEN. No, sir. I don’t know of any that were found. Of

that 100—let me be a little more specific on that. The 100, there

were a number of cases in which a judge to whom the case was

originally signed—assigned, simply signed off on a motion to extend time for answering the complaint or simply signed off on a

matter of setting a discovery plan—nothing of substance at that

point.

Another area is that there were some cases in which it was later

determined that the allegation had been made from the financial

disclosure list rather than the recusal list, and the financial disclosure list is simply not current. It is once a year. A recusal list of

a judge is a continuing and everyday matter. So some allegations

were made from last year’s financial statement, and the judge had

sold the stock and was no longer in conflict.

In some of them, there were cases in which a spouse had purchased stock without the notice of the judge. And in some cases,

a judge had purchased stock through a broker and had simply not

recused—several reasons for that. One, a case can be started in the

name of XYZ plaintiff or defendant. During the course of litigation,

XYZ can be purchased by another entity or purchase another entity, which could cause at that point a conflict if that purchase or

purchasing entity becomes known. But if it is not known to the

judge, then the judge has no way of knowing that he would be in

a conflicted position.

That is a long way about saying that there are many reasons for

why, and there are some in which a judge did not recuse for whatever reason, I don’t know, but that is very few. I have found no appellate cases which indicate that there was a wrong decision substantively made by any judge who was even alleged to be in that

number of less than 100, which in fact, in my opinion, is considerably smaller than that for purposes of serious consequences.

Mr. JENKINS. We have to conclude from these figures that those

are going very well, unless there is a total lack of reporting of incidents and allegations of wrongdoing?

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Judge OSTEEN. I cannot reach any other conclusion with that. I

think it is so minute that it is—there are going to be some human

errors anytime, anywhere; and the judiciary has done a good job in

policing itself. The judiciary is the one that came up with the

recusal idea, in 1978, I guess it was.

Mr. JENKINS. Let me ask you, are all Federal judges under the

same standard or were there statutes or rules promulgated that

placed a different standard on Federal judges? Sometimes in the

State courts, the supreme court will issue a regulation that will

grandfather judges in and allow ownership of certain properties for

those who are already on the bench. But in the future, they will

be prohibited.

Judge OSTEEN. No grandfather clause.

Mr. JENKINS. There is no similar double standard for Federal

judges?

Judge OSTEEN. There is no double standard. And I am not sure

I understood your question correctly. But if I did, you said, are all

judges subject to this code of conduct, and the answer to that is no.

Supreme Court justices are not.

Mr. JENKINS. Thank you very much, Judge.

Mr. COBLE. Thank you, Mr. Jenkins.

The gentleman from Virginia.

Mr. GOODLATTE. I have no questions.

Mr. COBLE. Let us start a second round. I think this warrants

a second round.

Mr. Kendall, every group needs watchdogs. And I would classify

you as a watchdog and that is a compliment. I never believed that

the Federal judiciary ought to be fed with a preferential spoon

while the rest of us are fed more rigidly, or less flexibly or more

inflexibly; but I don’t think they should be penalized, conversely,

because they happen to be Federal judges.

But let me put a hypothetical to you, if I may; and hypothetical

questions, I know, can be troublesome. And Judge Osteen, I want

to put this same question to each of you. And the question is, what

constitutes a financial conflict of interest for a judge?

As you pointed out, Your Honor, you said there are some close

calls. If a judge owns an IRA, mutual fund or 401(k) which contains hundreds of stocks, including that of XYZ corporation, should

that judge then be compelled to recuse himself or herself from adjudicating a dispute between XYZ and another litigant?

What do you say?

Mr. KENDALL. The answer is absolutely not. And I think it is absolutely clear under the financial conflict rules that ownership of

broad-based mutual funds that include stocks in corporations does

not constitute a financial conflict. And that is why I think we can

be so demanding about judges avoiding actual financial conflicts,

because the judiciary and judges can own stock in corporations

around the country through the simple—through buying mutual

funds instead of buying individual shares in companies.

I think I need to say something in response to the last answer

Judge Osteen gave. I don’t think it is at all fair to compare stock

conflicts found in Kansas City with the entire docket of the Federal

judiciary. The fact of the matter is that the Kansas City Star found

that more than 50 percent of the judges that they examined had

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ruled in at least one matter in which they own stock or in which

they had a disqualifying financial conflict.

In our Community Rights Counsel study, we found that in a single year, looking only at decisions on the merits issued by Federal

appellate judges, more than 5 percent of our Federal judges in a

single year ruled in a case in which they had a disqualifying financial conflict. If that is perfection or close to it, I need a new dictionary.

And, again, I think we need to go back to the comparison between how stock conflicts are treated through the Department of

Justice and the judiciary. Again, in a single case of a stock conflict

with the judiciary, the line of attorneys at the Department of Justice would be thrown out the door. Again, I don’t think there is any

mechanism in place for policing stock conflicts with judges in terms

of consequences for doing so.

Mr. COBLE. Thank you.

Your Honor, do you want to be heard?

Does anybody else want to be heard?

Judge OSTEEN. Just as to your question about mutual funds, and

I agree with Mr. Kendall on the ownership.

Mr. COBLE. I think that is a fair answer.

Let me put this to you: One thing that was mentioned in the

Kansas City instance—I believe I am right about this—most of the

judges who got into trouble with financial disclosure issues were

district court judges, as opposed to appellate court judges. I think

that is right. Is that right?

Mr. KENDALL. The study was of two in Kansas City, one in Oregon and one in Pennsylvania.

Mr. COBLE. Is this disparity because there is a lack of unified

rules for both? I would assume that is not the case, Judge.

Judge OSTEEN. Unified rule for what?

Mr. COBLE. The Kansas City case, most of the judges who were

involved with, quote, violating the rule—maybe not in quote—were

district court judges, not appellate court judges.

Is that just because they emphasized district court judges?

Judge OSTEEN. I think that is what they did, they reviewed the

district court judges.

And I might add one thing. That was a 61⁄2-year study; not a single year or 2 years, but Mr. Stevens reviewed 61⁄2 years over that

period.

Mr. COBLE. Mr. Remington, the 1993 National Commission

which studied the issue of judicial discipline recommended that

committee appointed by circuit counsel should, for the evaluation

of serious complaints, be partially comprised of nonjudges. Elaborate, if you will, how this would work, how this will be executed;

and would such a change engender intense resentment among

judges comprising the ability—compromising the ability of the committees to perform their duties? What do you say to that?

Mr. REMINGTON. That is a good question, and I may defer to Professor Hellman on this because he is more experienced in actual

bench and bar integration.

Mr. COBLE. I should have put that question to each of you.

Mr. REMINGTON. But the Commission’s recommendation, you accurately described it, would allow the circuit counsel, presumably

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through the chief judge, to appoint respected members of the bar

and informed citizens to help out in this process, either in the formal dispute discipline decision-making or in the informal process

involved in what do you do with a disabled judge or a senile judge

or can we—how do we handle this?

It would be discretionary. It has not been, to the best of my

knowledge, implemented in any of the circuits, even the circuits

that have taken a lead on integration of the bar to assist the

judges.

The exception to that rule would probably be the Ninth Circuit

where Professor Hellman has most of his experience. There must

be some reason that this was not implemented by any of the circuits, but I don’t personally believe that there would be intense resentment of judges to members of the bar.

In conclusion, Mr. Chairman, it is a good question. I think that

there probably is some sort of subliminal feeling amongst the

judges that they can decide these things on their own, either informally or formally—I thank you very much, to the bar and informed

lay persons, we simply don’t need you in this process—but it is not

intense resentment.

Mr. COBLE. Professor?

Mr. HELLMAN. I think one of the most important findings of the

Federal Judicial Center study finding that was carried out for the

National Commission was its study of the informal processes; and

I think this is an impartial answer, Mr. Chairman, to your question because one of the striking findings of the study was how important these informal processes were to the correction of problems

involving misconduct or disability among Federal judges. And at

the same time, one of the core relative findings was that success

was dependent in part on the existence of the statute.

But this is something that the chief judge typically does. It is

very hard to see how the chief judge could involve anyone from outside the court, perhaps even—it may even be difficult to involve

other judges, because one of the key things the chief judge has as

a bargaining chip really is the prospect of keeping the matter from

going public.

There is, in fact, a very poignant vignette in the Center study.

The chief judge was trying to persuade a particular judge to retire,

and there is no clue as to what the problem was, but probably some

kind of disability, and the judge was resisting retirement, but the

judge’s spouse knew about section 372(c). And the spouse thought

that the worst thing that could happen would be a 372(c) complaint

at the end of the judge’s illustrious career. So in the end, that prevailed. But the prospect of any sort of sharing that information outside the closest family of the court would have destroyed the prospect of that successful conclusion.

So I think that is a partial answer as to why the process has

been kept as close as it has been.

Mr. REMINGTON. Mr. Chairman, could I just add that there is a

more recent illustration, and I am not at liberty to divulge the

judge’s name and I wasn’t at all involved, but it did involve the

chief judge of the circuit inviting the spouse to the courtroom to sit

and watch the other spouse in action as a judge; and it resulted

in a decision, an informal decision by the spouse that the judge

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should not hear any more cases. So it did involve somebody not involved in the judicial family. And that postdated the famous Judicial Center study of 1993 and 1994.

Mr. COBLE. Thank you, sir.

I am now the victim of the red light, so I will recognize the gentleman from California.

Mr. BERMAN. First, Professor Hellman, your point on recused

judges, on the question of whether or not to go en banc wasn’t that

they are now voting on the en banc matter; it is, if you require an

absolute majority, they in effect become a no vote.

Mr. HELLMAN. That is exactly right. It is sort of like comparing

that for every recused judge that is in fact automatically counted

as a no vote, which means that the panel decision is more likely

to stand and that is affecting the outcome of the case. And a

recused judge shouldn’t affect the outcome of the case.

Mr. BERMAN. Do you think this is now a matter that the Congress should address?

Mr. HELLMAN. It may be the sort of thing that could be handled

by the rules amendment process. There is wide power in the rules

process to amend the Federal Rules of Appellate Procedure. Probably it could be done.

As far as I am aware, the Appellate Rules Committee has never

exhibited the slightest interest in this problem. It has been known

for years and years. The Supreme Court declined the opportunity

when it was presented squarely a few years ago to resolve it. So

nobody else is going to do anything about it, and this is Congress’

statute.

It is an ambiguity in the statute. It is a legitimate ambiguity.

The circuits are evenly divided, as they can be, as to how to interpret it. And this is a function of an oversight hearing to find out

these little problems that nobody thought of when the statute was

written; and it is something you can, I think, deal with.

But thank you for the question.

Mr. BERMAN. In your introduction, the Chairman mentioned that

you are in charge of a committee evaluating the Ninth Circuit.

Mr. HELLMAN. I was a Member of the committee, not just a foot

soldier.

Mr. BERMAN. This wasn’t Chief Justice Rehnquist saying, take a

look at the Ninth Circuit. What kind of a committee was this?

Mr. HELLMAN. This was a committee that was appointed by

Chief Judge Hug of Reno, NV, after the commission appointed by

Chief Justice Rehnquist and chaired by Justice Byron White reported.

The White Commission, as you are well aware——

Mr. BERMAN. So this was about the split?

Mr. HELLMAN. It was not about the split. I have to be careful

here because as a Member of the committee which has now completed its report, I want to be careful in my description.

But the chief judge was careful in his charge. And Judge Thompson of San Diego was very careful in his directions to us to say we

were not looking at split issues.

Mr. BERMAN. What were you looking at?

Mr. HELLMAN. Whether the Court of Appeals was doing its job.

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Mr. BERMAN. Presumably, if the conclusion is that it wasn’t functioning that well because of case load and size and distance, then

maybe people would take what you find and go from there, rather

than going to the ultimate question?

Mr. HELLMAN. Yes. We were not addressing the legislative

issues. That, of course, belongs with Congress.

Mr. BERMAN. That probably isn’t the purpose of this hearing, but

it is an issue that I have interest in.

But Advisory Opinion 67, Mr. Kendall, do you think particularly

that part of it—I don’t know what it all says, but this whole

issue—where it says it is improper for a judge to participate in a

seminar if the source or sponsor of—if the sponsor of the seminar

or the source of funding is a litigant and if it is a topic to be in

some manner related to the litigation.

Is that an appropriate standard? Is your argument with Advisory

Opinion 67 or how it is being interpreted?

Mr. KENDALL. I think it is both. My argument is with both Advisory Opinion 67 generally and how it is being interpreted.

I think one of the biggest problems with Advisory Opinion 67 is

that it gives an ambiguous and complex answer to what I think,

when judges should take a gift in relation to a continuing education

program. The judiciary, as far as I know, has never defined many

of the critical terms, such as involved in a litigation, what is the

subject matter of the litigation with respect to Advisory Opinion

67? And as I understand their testimony today, even the source of

funding, which I thought was pretty clear, is now more ambiguous

than it was.

I think a second problem with Advisory Opinion 67 is that it requires, at least as I read it, the collection of a whole lot of information about who each organization’s funding sources are, what litigation activities those funding sources are involved in, et cetera, and

what the program schedule is, et cetera; and doesn’t help the judiciary at all in collecting—or individual judges at all in collecting

that information.

And so it is burdensome to place the burden on judges to collect

and ascertain all that information before attending one of these

seminars.

Mr. BERMAN. Let me just—I realize you haven’t finished answering that question, but I don’t know how you are going to. Let us

go to the basic issues here. I will just throw out a few things and

get your expertise.

Is it wrong for judges, do you think it—is your issue that they

should never be going to these seminars, that they should not be

going to seminars that are not balanced in their perspective, that

they should not be going to seminars that have any form of private

funding? Which means there will be no seminars, because my guess

is the line item for Congress to appropriate money for seminars for

judges will not last a long time, and the judges will probably have

it put into the pay. But in other words, I want to get a fix on what

the concern is.

Mr. KENDALL. I think the concern is that corporations and foundations that have an interest in Federal court litigation are funding continuing legal education programs for judges; and I don’t

quite know why we are allowing them to do so. The combined

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budgets of FREE, the Law and Economics Center—every group that is funding these programs is under $10 million, probably far

under $10 million. It would be a very small problem to solve.

And more fundamentally—— Mr. BERMAN. What is a small problem to solve?

Mr. KENDALL. If the budget for continuing legal education is necessary, at least under existing practices for Federal judges, if the

taxpayers paid for every seminar that any Federal judge attended,

that line item in the budget would be under $10 million—probably be under $2 million by my calculations.

But I think just more fundamentally, we have to disabuse ourselves of the notion that judges have some God-given or constitutional right to accept a gift worth thousands of dollars, given to

them solely because of their position as a public servant.

I think, similarly, we have to disabuse ourselves of the notion

that corporations and foundations have some sort of right to pay

for the continuing legal education for judges. Certainly, again going

back to the comparison to U.S. Attorneys, Department of Justice officials, other public servants involved in litigation, they have absolutely no ability to accept gifts in association with this. There is an

absolute bar on gifts associated with educational seminars for other

public servants involved in litigation.

So maybe there should be a different standard for judges. Maybe

there should be some exceptions for seminars done by institutions

of higher education, seminars done by bar associations. But I think

we need to look at this from the perspective of a litigant who is

fighting a corporation in a tort claim and finds out that the corporation has, even in small part, funded a trip, seminar, vacation,

junket, whatever you call it, for the judge presiding over their case.

And I think if you look at it from that perspective, which I think

is the only perspective you can look at it from if you are worried

about the public’s confidence in the judiciary, you come up with a

pretty rigid standard.

Maybe you might have some exception that judges can take gifts

by certain universities and bar associations, but you will define

those exceptions pretty narrowly.

Mr. BERMAN. I think you make a very legitimate point.

Now, life is filled with certain things which at least have the appearance of unfairness. The judge in the small town who socializes

at the club or wherever with the top lawyers from the town, and

the outside lawyer comes in representing some litigant and how he

is—there are—I mean, it is—as much as I would like to see all the

judges up in a vacuum to chase and never deal with the sort of the

social and personal and political and financial aspects of life.

But—maybe one can say we understand those, but maybe this is

a little different, and we should look at it.

Mr. KENDALL. Well, I think the difference is simply the size of

the gift. I mean, we are talking a gift worth between $1 and $7,000

for each of these trips.

Mr. BERMAN. We don’t call that a ‘‘gift.’’ Mr. KENDALL. No one is arguing that judges should be hermits.

Nobody is burning books. Nobody is suggesting that judges should

be in any way limited in what they read, what programs even they

go to.

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As Judge Osteen says in his written testimony, judges can go to

any program they want to as long as they pay their own way. I

really have no problem with the Federal Government providing

money and judges going to any seminar they want, and there is

some sort of budget.

Mr. BERMAN. What if it is a big nonprofit foundation that decides

the education and seminar process for judges is something in the

national interest, and we are going to put together—the Ford Foundation decides—we think everyone understands law, economics and

environmental considerations to a level that you really just don’t

get in the handling of a case—I am getting a little long here, but

I mean, would that make a difference perhaps if it was——

Mr. KENDALL. I think there are a lot of ways of solving the problem. I know a number of people have a lot of ideas about doing it.

So I think there is a lot of disagreement about how, precisely, you

should solve this problem. But I think that to start is by recognizing there is a problem.

Mr. COBLE. I thank the gentleman.

The gentleman from Tennessee.

Mr. JENKINS. I don’t have any additional questions.

Mr. COBLE. This has been a good hearing, in my opinion, and it

will not be put upon the shelf to collect dust, I assure you of that.

Let me fire one more round.

Hypothetically, again, I am a grieved litigant and I don’t trust

Judge Osteen—strike that. I don’t trust Judge Doe, and I say, I am

going to file a petition asking that Judge Doe recuse himself from

this case. My petition is subsequently dismissed. I am not told why.

I have no reason—can’t imagine why it was dismissed. I think

it was a meritorious petition. I submitted my facts, and it is summarily dismissed, and I am told to get lost.

Now, Professor Hellman, and the others as well, how often does

that happen?

Mr. HELLMAN. Well, I think that first there are two separate

processes involved here. There is the process of recusal in an individual case, and that—I am not sure what the usual practice is.

Sometimes you will get an opinion from a judge explaining why he

or she has not recused him or herself.

There is a famous opinion by then-Justice Rehnquist explaining

at length why he was not recusing himself despite a prior contact

with some of the issues in a case. But I am sure many of them are

not—are not explained.

Now, that kind of situation focused on a particular case would

not, I think, come within the Judicial Discipline Act, because one

of the exceptions of the act is for challenges involving particular

rulings in particular cases. And so, in that situation, the only redress would be to take an appeal.

Now, if there is a pattern of failure to recuse, that is arguably

something that could be the subject of a complaint. And here we

get, I think, into a somewhat broader question than you raised, Mr.

Chairman, which is the importance of an explanation when the judiciary acts. It cuts across almost everything that judges do, and

especially things that judges do that are in a process that is invisible.

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If an individual files a grievance, it goes into the system. He

never has a chance—and this is understandable, but he doesn’t

have a chance to argue it and present his case orally, as is typically

done on the case on the merits. And all he gets is a conclusory form

order. Then I think he understandably feels aggrieved once again

that no one has taken his case seriously.

So one of the most important recommendations, I think, of the

National Commission—and Mr. Remington will correct me if I am

wrong on this—was that the chief judges should be very rigorous

in giving explanations when they reject a complaint.

Mr. COBLE. I concur. I think many people become disarmed when

they have to go to court. A traffic ticket, for example, my gosh, I

hate to go there. I have never been to court before. And I think

this—this answer to my question addresses the problem.

I think if a person is summarily dismissed and not told why, I

can see why he is going to be sore. Anywhere—does anybody else

want to be heard on this?

Mr. REMINGTON. I want to agree with Professor Hellman about

a large number of those people filing judicial discipline complaints.

And as Professor Hellman indicated, that is not appropriate.

I would like to add two points about legislative proposals that

are in my statement that parallel Professor Hellman’s idea about

the recusal. I sat at this counsel table in 1985 when Judge Claiborne was impeached, and I remember Chairman Sensenbrenner’s

resolution and Members of Congress were amazed that judges

could continue to accrue toward retirement on the Rule of 80, and

they were amazed that judges could continue to get assigned cases

even when they were in jail.

And I know that this is not important. These are not issues we

have seen ever since, fortunately. But these are two little amendments that the Commission recommended. They have never been

taken up, and I would recommend them for your consideration.

Nonetheless, I think the public deserves some semblance of accountability in the system, and we ought not create economic incentives for incarcerated judges to sit on the bench.

Mr. COBLE. I concur. They should have more a feeling of east and

comfort rather than alarm. And maybe it is up to all of us jointly

and severally to take care of that. Howard, anymore questions?

Mr. BERMAN. Judge Osteen, you talked about recusal. Someone

else talked about Iowa where you put the recusal lists on the Web

site and insist that the attorneys for the litigants make reference

to that.

Is there some Federal obligation to prepare your own recusal

list? I don’t know, whoever wants to. In other words, do you have

a recusal list?

Judge OSTEEN. Yes, sir, I do.

Mr. BERMAN. Do you have it because you have to have it?

Judge OSTEEN. I have to have it because I have to make a decision as to whether or not I can handle a case or not.

Mr. BERMAN. You can do it case by case?

Judge OSTEEN. You can do it case by case. But I can’t do it unless I have a current list of my stock holdings. So I have to keep

that current in order for me to comply with the requirements.

Mr. BERMAN. I can remember mine in my head.

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Judge OSTEEN. Mine is not much more than that, if at all. But

it does help if you have a spouse who may be buying stock. You

get that list current.

Mr. BERMAN. Under the Federal Rules, the judges have to have

such a list; or is that your decision?

Judge OSTEEN. I don’t know of any list that is required by rule.

But I do know that there is no way I can do it without a list. And

I also know that there have been—the AO has come out with a

great deal of help on computer-assisted information to help prepare

lists.

Mr. BERMAN. It is not just an issue, then, of putting a list on a

district court Web site. It is an issue of whether or not to require

a recusal list, although I think the financial disclosure form—— Judge OSTEEN. Financial disclosure form is not a current list because it is a yearly list.

Mr. COBLE. Anything further?

Ms. Hart, would you like to be heard?

We very much appreciate the contribution that the witnesses

have extended today. We thank you very much for that. The Subcommittee is appreciative.

Now, we have accepted or made part of the record information

from third parties who are very concerned about this issue and

those matters will be made a part of our record.

Mr. COBLE. This concludes the oversight hearing on the operations of Federal judicial misconduct statutes. The record will remain open for 1 week, so if you all have additional information to

submit, feel free to do so.

Thank you for your cooperation. And the Subcommittee stands

adjourned.

[Whereupon, at 12 p.m., the Subcommittee was adjourned.]

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