U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2250 Mail: Stop SSOP, Washington, DC 20402–0001

28–408 PDF 2006

JUDICIAL TRANSPARENCY AND ETHICS

ENHANCEMENT ACT OF 2006

HEARING

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

ON

H.R. 5219

JUNE 29, 2006

Serial No. 109–124

Printed for the use of the Committee on the Judiciary

(

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

(II)

COMMITTEE ON THE JUDICIARY 

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

HENRY J. HYDE, Illinois 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

SPENCER BACHUS, Alabama 

BOB INGLIS, South Carolina 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

DARRELL ISSA, California 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JOHN CONYERS, JR., Michigan 

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 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

CHRIS VAN HOLLEN, Maryland 

DEBBIE WASSERMAN SCHULTZ, Florida

PHILIP G. KIKO, General Counsel-Chief of Staff 

PERRY H. APELBAUM, Minority Chief Counsel 

SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

HOWARD COBLE, North Carolina, Chairman

DANIEL E. LUNGREN, California 

MARK GREEN, Wisconsin 

TOM FEENEY, Florida 

STEVE CHABOT, Ohio 

RIC KELLER, Florida 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

LOUIE GOHMERT, Texas 

ROBERT C. SCOTT, Virginia 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ANTHONY D. WEINER, New York

MICHAEL VOLKOV, Chief Counsel 

DAVID BRINK, Counsel 

CAROLINE LYNCH, Counsel 

JASON CERVENAK, Full Committee Counsel 

BOBBY VASSAR, Minority Counsel 

(III)

C O N T E N T S 

JUNE 29, 2006

OPENING STATEMENT 

Page 

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

of North Carolina, and Chairman, Subcommittee on Crime, Terrorism, and 

Homeland Security ............................................................................................... 5

The Honorable Robert C. Scott, a Representative in Congress from the State 

of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, 

and Homeland Security ....................................................................................... 6

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 7

WITNESSES 

The Honorable Charles Grassley, a U.S. Senator from the State of Iowa 

Oral Testimony ..................................................................................................... 1

Prepared Statement ............................................................................................. 3

Mr. Ronald Rotunda, Professor of Law, George Mason University School 

of Law 

Oral Testimony ..................................................................................................... 10

Prepared Statement ............................................................................................. 13

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

Law 

Oral Testimony ..................................................................................................... 29

Prepared Statement ............................................................................................. 31

Mr. Charles Geyh, Professor of Law, Indiana University School of Law at 

Bloomington 

Oral Testimony ..................................................................................................... 46

Prepared Statement ............................................................................................. 48

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Robert C. Scott, a Representative in 

Congress from the State of Virginia, and Ranking Member, Subcommittee 

on Crime, Terrorism, and Homeland Security ................................................... 59

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee 

on the Judiciary ................................................................................................... 60

Letter to the Honorable Howard Coble from Leonidas Ralph Mecham, Secretary, Judicial Conference of the United States .............................................. 61

(1)

JUDICIAL TRANSPARENCY AND ETHICS 

ENHANCEMENT ACT OF 2006

THURSDAY, JUNE 29, 2006

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

COMMITTEE ON THE JUDICIARY, Washington, DC.

The Subcommittee met, pursuant to call, at 11:37 a.m., in Room 

2141, Rayburn House Office Building, the Honorable Howard Coble 

(Chairman of the Subcommittee) presiding. 

Mr. COBLE. Good morning, ladies and gentlemen. The Committee 

will come to order. 

To begin with, Mr. Scott and I will apologize for our delay. But 

best-laid plans of mice and men, you know, oft times go awry, and 

we had a vote. 

And, Senator Grassley, the distinguished gentleman from Iowa, 

I am told that you are on a short leash. 

So, Bobby, with your consent, and with the consent of the others, 

I am going to violate the rules of protocol, Senator, and permit you 

to give your 5-minute testimony, and then Mr. Scott and I will give 

our respective opening statements, and we will hear from the other 

three members, if that is in agreement with everyone. 

I am told you are managing a bill on the Senate floor now, Senator. So why don’t you proceed and go for 5 minutes, Senator? Then 

we will resume regular order. 

TESTIMONY OF THE HONORABLE CHARLES GRASSLEY,

A U.S. SENATOR FROM THE STATE OF IOWA 

Senator GRASSLEY. Okay. Mr. Chairman, the legislation is the 

Oman free trade agreement that starts at 11:30, so I accept the opportunity that you have given me to be here to discuss H.R. 5219. 

I introduced a companion bill in the House, and I am hopeful that 

we can move forward with this legislation in both bodies. 

The Federal judiciary is supposed to be engaged in self-regulation of ethics issues, but ever since I chaired the Senate Judiciary 

Subcommittee on Courts in the early 1990’s, concerns have been 

raised about compliance with judicial ethics rules and whether the 

judiciary can adequately police itself. 

Concerns about alleged ethics violations, conflicts of interest, and 

appearances of impropriety continue to be reported in the press. 

Now, I don’t know whether or not these lapses were intended. I 

don’t know whether these instances were violations of judicial ethics or codes of conduct. But it doesn’t look like the judiciary is actVerDate 0ct 09 2002 12:09 Sep 13, 2006 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\062906\28408.000 HJUD1 PsN: 28408
2

ing fast enough to show us that judges are crossing all their t’s and 

dotting all their i’s or that the rules work as well as they should. 

These allegations don’t instill much confidence in me, and I am 

sure they don’t instill much confidence in the American people. I 

know that mistakes happen. But there are enough questions out 

there for me to conclude that some sort of action is necessary. 

So in my mind, the judiciary hasn’t done enough to reassure the 

public that it is doing all it can to address perceived cracks in the 

system. The bottom line is that no one is above the law. That is 

presidents or Members of Congress. And our judges aren’t either. 

And I know they know that. History shows us that the institution of inspector general has been crucial in detecting, exposing 

and deterring problems within Government. The job of inspector 

general is to be the first line of defense against fraud, waste and 

abuse. 

In collaboration with whistleblowers, inspectors general have 

been extremely effective in efforts to expose and correct wrongs. 

That is why, during my 30 years on Capitol Hill, I have worked 

hard to strengthen the oversight role of inspectors general. 

I rely on I.G.s and whistleblowers to ensure that our tax dollars 

are spent according to the letter and spirit of the law. And inspector general is just the right kind of medicine that the Federal judiciary needs to ensure that it is complying with every ethic rule. 

An independent I.G., one with integrity and courage, will help 

root out waste, fraud and abuse. And the reality is that if we establish internal controls, those controls can help make sure that these 

problems don’t ever happen. 

Now, I know that some people think that there is no need for a 

judiciary I.G. They believe that the current system of self-policing 

is adequate. Some believe that they can just legislate certain rules 

for the judiciary and that that is going to fix the problem. 

Legislating is one thing. Ensuring accountability is quite another. The judiciary’s current self-policing system is just not up to 

snuff. There are too many questions about how conflicts and financial interests are reported and how recusal lists are compiled and 

kept up to date. 

There are too many questions as to whether the judiciary’s current policy, which I understand is not uniform throughout the court 

system itself, is as effective as it should be. Transparency can only 

make the system better and make our judges more accountable to 

the people. 

But there isn’t a lot of transparency in our current system. I 

agree with some of my colleagues that one way to ensure that ethics are being followed is to allow more transparency with respect 

to judges’ financial holdings and potential conflicts. 

Improved access to judges’ financial information as well as 

recusal lists will promote transparency and check the judiciary. 

But beyond that, an independent office of inspector general can do 

a lot to keep the Federal judiciary on its toes and up to par with 

standards as expected. 

And the proof is in the pudding. The institution of I.G. in various 

agencies has significantly increased accountability. 

Based on their oversight role as well as oversight activities by 

Congress and the Government Accountability Office, many agencies 

3

have improved internally and have prevented more waste, fraud 

and abuse from happening. 

An inspector general is a simple, common-sense internal control 

and check on internal impropriety. An internal watchdog also acts 

as a deterrent for improper activity. 

Further, an inspector general’s office can do a better job when it 

has the cooperation of employees who aren’t afraid to raise concerns, so that brings about the necessity of strengthening whistleblowers’ positions and keeping the public trust. 

They step forward, they put their careers and reputations on the 

line, to just do one thing, to commit truth. And they deserve not 

to be retaliated against. Providing whistleblower protections to judicial branch employees will help our judiciary function better. 

The bill before you is a straightforward bill and I won’t go into 

the details of that, but it is going to ensure a fair and independent 

judiciary as a critical aspect of our constitutional system of checks 

and balances and to make sure that they do their job right. 

Judges are supposed to maintain an appearance of impartiality. 

They are supposed to be free from conflicts of interest. And an 

independent watchdog for the Federal judiciary will help judges 

comply with all of these requirements. 

Whistleblower protection for that branch employees will help 

keep the judiciary accountable. This bill will not only ensure continued public confidence in our Federal judiciary and keep them beyond reproach, it will strengthen our judicial branch. 

So I thank you, Chairman Coble, for the opportunity to be before 

you. And since I shortcut some of my statements, I would like to 

have the entire statement put into the record as printed. 

[The prepared statement of Mr. Grassley follows:]

PREPARED STATEMENT OF THE HONORABLE CHUCK GRASSLEY, A U.S. SENATOR

FROM THE STATE OF IOWA

Chairman Coble, it’s a pleasure for me to be here today to discuss HR 5219, the 

Judicial Transparency and Ethics Enhancement Act of 2006. I introduced the companion bill in the Senate. I’m hopeful we can move forward with this legislation, 

because it’ll go a long way in helping restore the American people’s trust in our judicial system. 

The federal judiciary is supposed to engage in self regulation on ethics issues. But 

ever since I chaired the Senate Judiciary Subcommittee on Administrative Oversight and the Courts in the early 1990s, concerns have been raised about compliance 

with the judicial ethics rules and whether the judiciary can adequately police itself 

on these matters. Concerns about alleged ethics violations, conflicts of interests, and 

appearances of impropriety by judges continue to be reported by the press. 

Now, I don’t know whether or not these lapses were intentional. I don’t know 

whether these instances were violations of the judicial ethics rules, the ethics statute, or the judicial code of conduct. But it doesn’t look like the judiciary is acting 

fast enough to show us that judges are crossing all their ‘‘T’s and dotting all their 

‘‘I’s, or that the rules work as well as they should. I’m sorry to say that these allegations don’t instill much confidence in me, and I’m sure that they don’t instill much 

confidence in the American people. I know that mistakes happen, but there are 

enough questions out there for me to conclude that some sort of action is necessary. 

In my mind, the judiciary hasn’t done enough to reassure the public that it is doing 

all that it can to address what are perceived to be cracks in the system. 

The bottom line is that no one is above the law. The President isn’t above the 

law. Congressmen and Senators aren’t above the law. And our judges aren’t above 

the law either. 

The facts do show us that the institution of the Inspector General has been crucial 

in detecting, exposing and deterring problems within our government. The job of the 

Inspector General is to be the first line of defense against fraud, waste and abuse. 

4

In collaboration with whistleblowers, Inspectors General have been extremely effective in their efforts to expose and help correct wrongs. 

That’s why, during my 30 years on Capitol Hill, I’ve worked hard to strengthen 

the oversight role of Inspectors General throughout the federal government. I’ve 

come to rely on IGs and whistleblowers to ensure that our tax dollars are spent according to the letter and spirit of the law. And when that doesn’t happen, we in 

Congress need to know about it and take corrective action. 

I truly believe that an Inspector General is just the right kind of medicine that 

the federal judiciary needs to ensure that it is complying with the ethics rules. An 

independent IG, one with integrity and courage, will help root out waste, fraud and 

abuse. And the reality is that if we establish internal controls, those controls can 

help make sure that these problems don’t happen in the first place. 

Now, I know that some people think that there is no need for a judiciary IG. They 

believe that the current system of self policing is adequate. In addition, some believe 

that we can just legislate certain rules for the judiciary, and that will fix the problems that we are seeing. But, legislation is one thing; ensuring accountability is another. 

The judiciary’s current self policing system is just not up to snuff. There are too 

many questions about how conflicts and financial interests are reported and how 

recusal lists are compiled and kept up to date. There are too many questions as to 

whether the judiciary’s current policy—which I understand is not uniform throughout the courts—is as effective as it can be. Transparency can only make the system 

better and make our judges more accountable to the people. But there isn’t a lot 

of transparency with the current system. I agree with some of my colleagues that 

one way to ensure that the ethics rules are being followed is to allow more transparency with respect to a judge’s financial holdings and conflicts. Improved access 

to judges’ financial information, as well as judges’ recusal lists, would promote 

transparency and place a check on the judiciary. 

But beyond that, an independent office of Inspector General within the judicial 

branch can do a lot to keep the federal judiciary on its toes and up to par with the 

standards that are expected of it. 

And the proof is in the pudding. The institution of the IG in various agencies has 

significantly increased accountability to the public. Based on their oversight role, as 

well as oversight activity by the Congress and the GAO, many agencies have improved internally and have prevented more waste, fraud and abuse from happening. 

An internal Inspector General is a simple, commonsense internal control and check 

on internal impropriety. An internal watchdog also acts as a deterrent for improper 

activity. 

Further, an Inspector General’s Office can do a better job when it has the cooperation of employees who aren’t afraid to raise concerns about internal misconduct. 

Whistleblowers help strengthen and keep the public trust. Whistleblowers who step 

forward and put their careers and reputations on the line in defense of the truth 

deserve to be protected, not retaliated against. Providing whistleblower protections 

to judicial branch employees will only help our judiciary function better. 

The Judicial Transparency and Ethics Enhancement Act is a straightforward bill. 

It would establish an Office of Inspector General for the judicial branch. The IG 

would be appointed by the Chief Justice of the Supreme Court, in consultation with 

the House of Representatives and the Senate. The IG’s responsibilities would include conducting investigations of possible judicial misconduct, investigating waste 

fraud and abuse, and recommending changes in laws and regulations governing the 

federal judiciary. The bill would require the IG to provide the Chief Justice and 

Congress with an annual report on its activities, as well as refer matters that may 

constitute a criminal violation to the Department of Justice. In addition, the bill establishes whistleblower protections for judicial branch employees. 

Ensuring a fair and independent judiciary is critical to our Constitutional system 

of checks and balances. Judges are supposed to maintain an appearance of impartiality. They’re supposed to be free from conflicts of interest. An independent watchdog for the federal judiciary will help judges comply with the ethics rules and promote credibility within the judicial branch of government. Whistleblower protections 

for judiciary branch employees will help keep the judiciary accountable. The Judicial 

Transparency and Ethics Enhancement Act will not only ensure continued public 

confidence in our federal courts and keep them beyond reproach, it will strengthen 

our judicial branch. 

Again, I want to thank Chairman Coble and his colleagues for allowing me to testify on this important bill.

5

Mr. COBLE. Without objection, it will be done. And we appreciate 

you being with us, Senator. We would be glad for you to stay, but 

I understand you are on a short leash. 

Senator GRASSLEY. Thank you very much. 

Mr. COBLE. Good morning again, ladies and gentlemen. We welcome you all to this important hearing before the Subcommittee on 

Crime, Terrorism, and Homeland Security to examine H.R. 5219, 

the ‘‘Judicial Transparency and Ethics Enhancement Act of 2006,‘‘ 

introduced by the Chairman of the House Judiciary Committee, 

Mr. Sensenbrenner. 

Integrity and accountability within our Federal courts is a critically important issue for all of us and has been for some time. In 

2001, as Chairman of the Courts, the Internet, and Intellectual 

Property Subcommittee, I chaired a hearing on the operation of the 

Judicial Conduct and Disability Act of 1980 and the relevant 

recusal statutes. 

The 1980 act created a decentralized framework of self-regulation 

whereby complaints of judicial misconduct are reviewed by the 

chief judge of the relevant circuit or, in more serious cases, judicial 

councils within the circuit. 

We learned from the hearing that the complaint process was 

largely unpublicized and that transparency issues persisted, particularly with regards to conflicts of interest. 

As a follow-up to the 2001 hearing, Representative Howard Berman and I wrote to Chief Justice William Rehnquist offering several recommendations to improve the application of the 1980 act 

and the recusal statutes. The Judicial Conference responded to two 

of those three recommendations in its September 2002 report. 

In recent years, there have been a disturbing number of reports 

that a number of Federal judges—and I think I will say a limited 

number of Federal judges, not that many—who are continuing to 

violate ethical rules, including disclosure requirements, or are engaging in judicial misconduct. 

Equally troubling is the lackluster response from the circuits in 

self-policing this behavior. It is clear that we can no longer rely 

on—in my opinion, it is clear that we can no longer rely on the 

1980 act, and I share the Chairman’s concern on this issue. 

H.R. 5219 establishes an independent inspector general within 

the judicial branch who is appointed by and reports directly to the 

chief justice of the United States. 

The inspector general will conduct investigations of complaints of 

judicial misconduct; conduct and supervise audits; detect and prevent waste, fraud and abuse; and recommend changes in laws or 

regulations governing the judicial branch. 

The creation of an inspector general is not a radical idea. Inspectors general exist in over 60 executive agencies, boards and commissions, and Congress as well. They shine a light on the internal 

operations of these entities in order to prevent fraud and improve 

efficiency and accountability. 

There is no reason, it seems to me, why the judicial branch 

should be exempt from this type of oversight. 

As Chairman Sensenbrenner emphasized when he introduced the 

bill, the inspector general will not have any authority or jurisdiction over the substance of a judge’s opinion—that is, the merits of 

6

the case. Judicial independence in rendering decisions is a critical 

component of the separation of powers that must not be tampered 

with. 

However, unethical behavior and misconduct must be taken seriously to maintain the public’s confidence in the judiciary. 

And before I recognize the distinguished gentleman from Virginia, and on a personal note, I have only known one member of 

the U.S. Supreme Court personally, and that was the late Chief 

Justice Rehnquist. And I found him to be a superb jurist and a superb gentleman. 

I have known several district and circuit court judges, all of 

whom are superb. But there are some who miss the mark. We have 

Members of Congress who miss the mark. I guess there is no profession or vocation exempt from that. 

And I think that probably is what Mr.—I recall having read, Mr. 

Scott, of reckless extravagance of some judges in furnishing their 

chambers and their courtrooms, elaborate spending of taxpayers’ 

money. 

These sort of things, I think, can probably be examined thoroughly and deliberately with the presence of an I.G. 

Having said that, I look forward to hearing the testimony from 

our distinguished panel. 

And I am pleased to recognize the distinguished gentleman from 

Virginia, and also welcome the Ranking Member of the full Committee, the distinguished gentleman from Michigan, Mr. Conyers. 

Mr. Scott? 

Mr. SCOTT. Thank you. Mr. Chairman, before we get started, in 

reviewing this bill, I was just wondering how the Crime Subcommittee got jurisdiction. 

Mr. COBLE. Rather than give you a runaround, I will admit I 

don’t know. 

Mr. SCOTT. Moving right along. 

Mr. COBLE. But it was handed—the baton was handed to us, so 

we ran with it. 

Mr. SCOTT. Thank you, Mr. Chairman. Mr. Chairman, I am 

pleased to join you in convening the hearing on H.R. 5219, the ‘‘Judicial Transparency and Ethics Enhancement Act of 2006.’’

Mr. Chairman, I favor Congress conducting regular oversight 

over the administrative operations of the courts through reports, 

hearings and avenues of communication. 

I am in favor of Congress authorizing, but not requiring, the Judicial Conference to appoint an inspector general or other such officials to assist in their efforts to rein judges in who do not follow 

the rules and to develop reports to be sent to Congress and elsewhere that the conference might direct. 

But I am not in favor of Congress requiring the appointment of 

a judiciary I.G. in whose appointment Congress has a say and who 

reports to Congress as we might see fit, according to the bills that 

we may direct. 

I direct that such a congressionally influenced position would 

clearly offend traditional notions of separation of powers and comity between the legislative and judicial branches. 

7

We don’t check with the executive or judicial branches when we 

select officers for the House, and it is insulting to think that they 

should have to consult with us when a judicial officer is appointed. 

Moreover, Mr. Chairman, I believe that the creation of such a position is unnecessary. If we are dissatisfied with the way the judiciary is addressing judicial discipline and other matters, we should 

notify the chief justice, as you, Mr. Chairman, and Ranking Member Berman did with Chief Justice Rehnquist when you were 

Chairman of the Courts Subcommittee. 

Mr. Chairman, you could give Chief Justice Roberts an opportunity to respond to any questions that we may have. Granted that 

the reports of judges taking and not reporting lavish, privately financed trips and of judges not reporting conflicts of interest as required, as well as failing to recuse themselves as appropriate, those 

reports are disturbing. 

While these matters require the judicial conference’s attention, 

as well as our attention in an oversight capacity, there are a number of approaches available to Congress to satisfy itself that these 

issues are being appropriately addressed by the judiciary short of 

establishing a congressionally directed and selected judiciary inspector general. 

There is evidence that the Judicial Conference is addressing the 

issues, including the indications in a letter dated yesterday to this 

Subcommittee. More specific information is desired—if more specific information is desired, perhaps a letter to the chief justice requesting an update on the conference’s progress would be more appropriate. 

The judicial branch is certainly not the only branch in Government with disturbing reports of inappropriately—of inappropriate 

finance—privately financed trips and conflicts of interest. 

There are continue to be a number of such reports regarding 

Members of Congress, despite actions taken by Congress over the 

years to address the problem, including the establishment of an inspector general. 

While the Congress has an oversight responsibility to see to it 

that the public resources it makes available to other branches are 

expended in a publicly accountable and proper manner, the oversight of ethics of individual employees of those branches is better 

left to the branches themselves, short of the necessity of use of 

Congress’ impeachment powers. 

With these reservations, Mr. Chairman, I look forward to the testimony of our witnesses for their insight in the issues that will be 

raised by H.R. 5219. 

Thank you, Mr. Chairman. 

Mr. COBLE. I thank the gentleman. 

And I say to my friend from Virginia I have just been advised 

that the bill initially was, in fact, assigned to the Courts Subcommittee, but upon request it was suggested that our Subcommittee preside over the hearing. So belatedly, I have an answer 

to your question, Mr. Scott. 

The chair is now pleased to recognize the distinguished Ranking 

Member, the gentleman from Michigan. 

Mr. CONYERS. Thank you. Chairman Coble and Ranking Member 

Scott, I came by for this Committee hearing because it seems to me 

8

that, once again, we are considering proposed legislation that attacks the independence of the judiciary. 

Despite the fact that the Nation’s founders meant for the judiciary to be free of partisan pressure and immune from political 

whims, this Administration and this Congress have pushed measures that subject courts to excessive oversight and strip them of 

their powers. 

What we would do here is create an inspector general for the judiciary authorizing the I.G. with subpoena powers to investigate 

misconduct by any Federal judge and recommend action by Congress or the Justice Department. 

The I.G. would also be empowered to recommend changes to laws 

affecting the judiciary. This is unwise. For the first time, an 

extrajudicial body would oversee the courts. 

Under the current regime, the courts themselves review allegations of misconduct and forward evidence of impeachable offenses, 

if there are thought to be any, to the House Judiciary Committee. 

In addition, if congressional proponents of an inspector general 

believe that serious abuses are occurring in the judiciary, we can 

hold—open investigations on the subject myself. No such congressional inquiries have been held. 

This is telling of the motivation, to me, behind this legislation. 

It appears that an inspector general has been proposed as a means 

of intimidating judges into political compliance. And that is my 

view. This would not be the first of such attempts, and I hope that 

it would possibly be the last. 

Now, the late Chief Justice Rehnquist appointed the judicial—

created the Judicial Conduct and Disability Act Study Committee. 

And it was created to make a comprehensive study of the act governing judicial conduct and its administration, with a final report 

to Chief Justice Roberts expected very shortly. 

And so there have been a number of steps that have been taken 

by the courts to continue to police themselves, and I hope that we 

will develop a fuller understanding about the sensitivity of having 

an I.G. over the Federal courts itself. 

And I thank you for the opportunity to enter into this discussion 

with you. 

I thank the distinguished gentleman. Thank you, Mr. Conyers. 

Gentlemen, it is the practice of the Subcommittee to swear in all 

witnesses appearing before it, so if you would, please, stand and 

raise your right hand. 

[Witnesses sworn.] 

Mr. COBLE. Let the record show that each of the witnesses answered in the affirmative. 

You may be seated. 

We have been joined as well by the distinguished gentleman 

from Massachusetts, Mr. Delahunt. 

Good to have you with us, Bill. 

Mr. DELAHUNT. Thank you very much. 

Mr. COBLE. We have four distinguished witnesses, one of whom 

has already departed, with us today. And I will dispense with the 

introduction of Senator Grassley. 

Our second witness is Mr. Ronald Rotunda, George Mason University Foundation Professor of Law at the George Mason UniverVerDate 0ct 09 2002 12:09 Sep 13, 2006 Jkt 000000 PO 00000 Frm 00012 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\062906\28408.000 HJUD1 PsN: 28408
9

sity School of Law, a school that is well-known, Professor, to my 

North Carolina people, since you all eliminated us from the basketball activity earlier this year. 

Professor Rotunda has authored and co-authored several books 

on ethics and constitutional law, including the most widely used 

course book on legal ethics, ‘‘Problems and Materials on Professional Responsibility.’’

He has been a member of the publications board of the American 

Bar Association Center for Professional Responsibility since 1994, 

is a past member of the ABA Standing Committee on Professional 

Discipline, and served as liaison to the ABA Standing Committee 

on Ethics and Professional Responsibility. 

Professor Rotunda is a graduate of both Harvard College and the 

Harvard University School of Law. 

Our second witness is Mr. Arthur Hellman, who we have seen 

before. 

Good to have you back, Professor. 

Mr. HELLMAN. It is good to be back, sir. Thank you. 

Mr. COBLE. Sally Ann Semenko Endowed Chair and professor of 

law at the University of Pittsburgh School of Law. Professor 

Hellman is one of the Nation’s leading academic authorities on the 

Ninth Circuit Court of Appeals where he served on the Appeals 

Evaluation Committee from 1999 to 2001. 

He is the author of numerous articles and books, including ‘‘Federal Courts: Cases and Materials on Judicial Federalism and The 

Lawyering Process,’’ which he co-authored in 2005. 

Prior to joining the University of Pittsburgh Law faculty, he was 

deputy executive director of the Commission on Revision of the 

Federal Court Appellate System. Professor Hellman received his 

B.A. from Harvard College and a J.D. from the Yale University 

School of Law. 

Our final witness today is Mr. Charles Geyh, professor of law 

and Charles L. Whistler Faculty Fellow at the Indiana University 

School of Law at Bloomington. Professor Geyh is the author of 

‘‘When Courts and Congress Collide: The Struggle for Control of 

America’s Judicial System,’’ and is currently a co-reporter of the 

American Bar Association Joint Commission to Evaluate the Model 

Code of Judicial Conduct. 

He has previously served as Director of the American Judicature 

Society Center for Judicial Independence, Reporter to the ABA 

Commission on Separation of Powers and Judicial Independence, 

and Counselor to the House Judiciary Committee. 

Professor Geyh received his undergraduate and law degrees from 

the University of Wisconsin. 

Now, I apologize to you all for the delayed introduction, but I 

think it is important for all of us to be familiar with the impressive 

credentials that witnesses bring before this Committee, and that is 

why I went into some detail. 

Gentlemen, we are on a short leash as well. There will be a vote 

on the House floor, I am suspecting probably within 30 minutes to 

45 minutes. So as you all have previously been requested, if you 

could confine your testimony to on or about 5 minutes. 

And when you see the amber light appear on the panel in front 

of you, that is your warning that you have a minute to go before 

10

the ice becomes thin on which you are skating, but Mr. Scott and 

I will not be unduly harsh with you. But if you could comply with 

that 5-minute rule, we would be appreciative. 

And, Professor Rotunda, why don’t we start with you? 

TESTIMONY OF RONALD ROTUNDA, PROFESSOR OF LAW, 

GEORGE MASON UNIVERSITY SCHOOL OF LAW 

Mr. ROTUNDA. Yes. Thank you very much. It is a pleasure to be 

here. 

I am pleased to offer this testimony on behalf of H.R. 5212, the 

proposed inspector general act. I think it offers modest reform that 

will keep our judiciary independent, because nobody favors a dependent judiciary, and will keep our judiciary accountable, because 

no one favors a judiciary that is above the law. 

I agree with Professor Geyh. In his written testimony, he says 

that this proposed bill will address ‘‘a bona fide problem.’’ And he 

adds, ‘‘If the judiciary is unwilling to reform itself in the teeth of 

evidence that further reform is necessary,’’ he says then Congress 

should take stronger measures. 

I disagree. I think Congress can take stronger measures now, 

though, of course, it should have a dialogue with Justice Breyer 

and the Committee he is on. 

Two general reactions have accompanied this bill. I think first 

people ask why we have waited so long to have an inspector general for the court. It exists throughout the executive branch. There 

are now 57 statutory inspectors general, plus others done by regulation. 

The duties are to prevent fraud, waste, abuse and misconduct, 

report violations of civil rights or civil liberties. The House of Representatives has its own inspector general. When Speaker Gingrich 

became speaker, he ordered an outside audit of the House, and outside firms conducted it. 

One engages in such conduct not because you think there is evil 

afoot, but just to assure everyone that things are fine. Outside 

auditors perform that function well. Inspector generals do that as 

well. I really don’t see the argument that inspector generals should 

not at least have an auditing function over the courts. 

The proposed inspector general act does not—it does important 

things, but it is not what some of its detractors would suggest. It 

would conduct and supervise audits and investigations, prevent 

fraud and detect waste, recommend changes in law and regulations 

governing the judicial branch—anyone can do that, including the 

I.G.—and then conduct investigations relating to the judicial 

branch, including possible misconduct that may require oversight 

or other action by Congress. 

Very little would do that, but some things, like proposed changes 

in the law you could see coming up periodically. These proposals 

are salutary. They will protect—the inspector general will protect 

judges from frivolous or false charges. No organ of Government 

should be above the law. 

The second reaction to this proposal is also surprising. Some people greet the law the way Dracula would greet garlic. They shy 

away. Justice Ginsberg is quoted in the papers as saying she finds 

the proposal ‘‘a really scary idea.’’

11

I don’t think the sky is falling. I think opponents do not attack 

the bill that is actually proposed but one that they fear or imagine. 

It is not going to limit judicial dependence. If it did, I wouldn’t testify in favor of the bill. 

I think it will strengthen judicial independence, because it gives 

people greater faith that if there are problems the inspector general will deal with them, and that the—what is becoming more 

common character assassinations of Federal judges the inspector 

general could say ‘‘I have investigated that there is no problem’’—

be done with it. 

There is actually a plea for statutory change by the judges themselves. I refer to this in my written statement, which is longer, but 

it is the opinion of the Judicial Conference on April 28 of 2006. 

The majority held that under the Federal statute it had no jurisdiction to proceed with discipline because the chief circuit judge of 

the Ninth Circuit and the Judicial Conference of the Ninth Circuit 

did not follow the mandatory statutory procedures. 

The majority said that we can do nothing because the other 

judges violated the statute. And then the majority of judges requested that Congress enact new legislation to solve this problem. 

I checked; nobody from Congress that I know of has gotten any 

requests from the judges for the statutory change. But this Committee or these judges asked for it. I think this legislation is an appropriate response. 

Judge Winter’s dissent in that case, joined by Judge Dimmick, 

warned that allowing the judges to police themselves is not working. He said, and I am quoting now, ‘‘A self-regulatory procedure 

suffers from the weakness that many observers will be suspicious 

that complaints against judges will be dissolved, will be disfavored. 

The Committee’s decision in this case can only fuel such suspicions.’’

I don’t—I think in 99 percent of the cases against judges are dismissed anyway, and I think under an inspector general it will be 

about the same percentage. But one or two may come out differently. That will be important. 

And even more important, we will be satisfied that the other 99 

percent are properly dismissed, because the inspector general 

would be the one agreeing with the courts. 

The judge later added that the required statutory procedure was 

not followed. The disposition of the present matter is therefore not 

a confidence-builder. Sadly, he is correct. 

I think it is time for a change. When we use a system and it 

doesn’t work, our response should not be to invoke a catch-phrase. 

Our response should be to create a system that will work. 

Now, if the Federal courts had an inspector general, we would 

have more openness. People would not assume that judges are 

above the law. I have no doubt that the great majority of cases are 

without merit. The inspector general will give us assurance that 

the law is followed. 

Professor Steven Lubet of Northwestern University has pointed 

out—quoting again—‘‘Federal judges have more insulation than 

anyone in American political life. A judge with life tenure needs 

less protection, not more than an ordinary citizen.’’

12

Now, under the proposed law, the chief justice appoints the inspector general. He is appointed by the chief. Congress has no 

power to remove anybody except by impeachment. The Senate 

doesn’t confirm the chief justice—the inspector general. That is just 

left up to the chief justice. 

The inspector general reports to the chief justice. It is true, he 

files a report with Congress. That doesn’t mean he is under the 

thumb or reports to Congress any more than the President of the 

United States is under the thumb of Congress because he is required by the Constitution to give a state of the union report every 

year. 

It is a fairly modest bill. Maybe there is some disputes about language that can be worked out. But I think it is going to be a salutary role for the courts. It will increase their independence and not 

decrease it. 

Thank you very much. 

[The prepared statement of Mr. Rotunda follows:]

13

PREPARED STATEMENT OF RONALD D. ROTUNDA


RDR0001.eps
14


RDR0002.eps
15


RDR0003.eps
16


RDR0004.eps
17


RDR0005.eps
18


RDR0006.eps
19


RDR0007.eps
20


RDR0008.eps
21


RDR0009.eps
22


RDR0010.eps
23


RDR0011.eps
24


RDR0012.eps
25


RDR0013.eps
26


RDR0014.eps
27


RDR0015.eps
28


RDR0016.eps
29

Mr. COBLE. Thank you, Professor Rotunda. 

Professor Hellman? 

TESTIMONY OF ARTHUR HELLMAN, PROFESSOR OF LAW, 

UNIVERSITY OF PITTSBURGH SCHOOL OF LAW 

Mr. HELLMAN. I thank you, Mr. Chairman. 

You know, Mr. Chairman, as I sit here this morning, it is impossible not—for me not to think back to that hearing which you have 

already mentioned that you chaired in November 2001 on the operation of the judicial misconduct statutes. 

If at that hearing you had asked me whether any substantial 

modifications were required in the existing arrangements that govern judicial discipline and judicial disqualification, I would have 

said no. 

But three recent developments suggest a different conclusion 

today. First, there is the unfortunate episode that has already been 

mentioned of the misconduct complaint against Judge Manual Real 

of the Central District of California. 

Professor Rotunda in his statement has described that episode in 

some detail, and I will not retrace that ground myself. What seems 

clear is that the episode has revealed a gap in the procedures for 

considering complaints against Federal judges. And again, Professor Rotunda has described that gap. 

Well, you might say that is just one episode, but a single widely 

publicized episode can create grave public doubt about the effectiveness and even the legitimacy of the process. 

The episode also reveals a lack of transparency. Although a special Committee has now been appointed, the order creating the 

Committee cannot be found in any of the places where you would 

expect to find it. 

The second set of developments involves judicial disqualification 

and the conflict of interest statutes. At the 2001 hearing there was 

substantial evidence that raised questions about some judges’—and 

as you have properly said, some judges’—compliance with the laws 

governing disqualification. 

And you, Mr. Chairman, as you have already mentioned—you 

and Ranking Member Berman sent a bipartisan letter to Chief Justice Rehnquist urging the Judicial Conference to require all Federal 

courts to adopt the Iowa model for posting conflict lists on court 

Web sites. 

The Judicial Conference did not follow that suggestion. And now, 

in 2006, history repeats itself with disturbingly similar allegations, 

this time against Judge Payne and Judge Boyle. As Yogi Berra 

might say, it is deja-vu all over again. And the consequences are 

felt not just by those particular judges, but by the judiciary as a 

whole. 

Finally, there is the Breyer Committee that—that we have heard 

about here already. And Professor Geyh suggests that Congress 

should wait for the committee’s report rather than proceed to consider legislation now. 

Now, ordinarily, I would agree with that, because I think we can 

learn a lot from such a distinguished group of judges. But we have 

been waiting for quite some time. And that committee was formed 

more than 2 years ago. 

30

And since then, as far as I am aware, we haven’t heard a peep. 

There have been no hearings, no announcements inviting people to 

express their views or give their experiences with the process, and 

of course, no report and no recommendations for improving the operation of the misconduct statutes. 

Under those circumstances, I think it is reasonable here in this 

Subcommittee to consider the proposal that is on the table, namely 

H.R. 5219. 

Now, as has already been discussed, that bill would create an inspector general for the Federal judiciary. And I think that the 

sponsors of that bill have taken great pains to design this new 

mechanism in a way that respects the status of the judiciary as a 

co-equal and independent branch of Government. And that point is 

developed at some length in my testimony. 

But with my limited time here, what I would like to do is to offer 

a couple of suggestions for fine-tuning the bill, because I do think 

it can be improved to address some of the concerns. 

My own principal concern is that the proposed new section 

1023(1) of title 28 does not adequately explain how the functions 

of this new office would be integrated into the existing statutory 

structure for dealing with complaints against judges. 

In particular, the bill could be read as authorizing the I.G. to 

carry out his or her investigations simultaneously with those of the 

chief judge, the circuit council or even the Judicial Conference of 

the United States. And that kind of duplication of effort would be 

wasteful, it would be inefficient, and it would be confusing. 

Now, I do think that there is a pretty simple fix for that. I have 

outlined it in my testimony, and I hope we can talk a little bit 

about it here. But basically, it would make clear that the I.G.’s responsibilities begin after the circuit has completed its work. 

Another suggestion I have is that the bill should make more explicit the responsibility of the I.G. for promoting transparency within the judiciary in matters involving misconduct or possible conflicts of interest. There is a lot of work to be done there in transparency. I hope we have a chance to talk about those and the other 

suggestions I have offered. 

And once again, I appreciate the chance to express my views 

today. Thank you. 

[The prepared statement of Mr. Hellman follows:]

31

PREPARED STATEMENT OF ARTHUR D. HELLMAN


ADH0001.eps
32


ADH0002.eps
33


ADH0003.eps
34


ADH0004.eps
35


ADH0005.eps
36


ADH0006.eps
37


ADH0007.eps
38


ADH0008.eps
39


ADH0009.eps
40


ADH0010.eps
41


ADH0011.eps
42


ADH0012.eps
43


ADH0013.eps
44


ADH0014.eps
45


ADH0015.eps
46

Mr. COBLE. Thank you, Professor. 

Mr. Geyh? 

TESTIMONY OF CHARLES GEYH, PROFESSOR OF LAW, 

INDIANA UNIVERSITY SCHOOL OF LAW AT BLOOMINGTON 

Mr. GEYH. Mr. Chairman, I would like to begin on a personal 

note. I served as counsel to Bob Kastenmeier in the early 1990’s 

on the Courts Subcommittee and remember you fondly as someone 

who regardless of whether you agreed with Mr. Kastenmeier and 

regardless of what went on in that hearing room were always a 

consummate gentleman. 

I admired it then. I admire it now. It makes it a real privilege 

to be here. 

Mr. COBLE. Well, you will recall I served as—in the minority 

under Chairman Kastenmeier. He was indeed a superb Chairman 

of this Subcommittee and, I am told, still lives in the area. Is that 

correct? 

Mr. GEYH. He does indeed. I saw him as recently as a week ago. 

Mr. COBLE. Thank you. 

Mr. GEYH. The one thing I would like to add to this hearing that 

I think the other two witnesses have not is a little bit of context. 

These are troubled times for the relationship between judges and 

legislators. 

We have a number of legislators who are very concerned about 

the extent to which, you know, certain judges have decided cases 

in ways that they are deeply troubled by. And so we see proposals 

being floated to impeach judges in some instances, to take away 

their jurisdiction, to dismantle courts altogether and to cut judicial 

budgets. 

And this isn’t the first time that we have seen a period of intense 

anger directed at courts and judges. In fact, it has happened in 

every generation since the founding of the nation. 

And the funny thing about it—not funny; but an important thing 

happened. Beginning in the 19th century, some of—sometimes Congress did make good on these threats to control or curb the courts 

in significant ways. 

Beginning in the late 19th century, however, something important happened, which was Congress began to think twice about it, 

that as our constitutional culture matured and Congress and the 

people it represented began to say you know, this kind of control 

is inappropriate in an environment where we want our judges to 

be independent enough and impartial enough to follow the law. 

And so these mechanisms of intimidation were abandoned. Does 

that mean that Congress immediately stopped being concerned 

about judicial accountability? Not at all. Beginning in the late 19th 

century Congress began looking at ways to make the judiciary accountable by making it accountable to itself. 

The first thing it did in the late 19th century was create a big 

court of appeals structure, avowedly for the purpose of ending what 

it called ‘‘judicial despotism’’ by the district courts. 

It then went ahead and created the Judicial Conference to let 

judges govern themselves, the administrative office, to give it administrative control over the judiciary and ultimately, in 1980, 

47

under—with you in Congress, a measure to have judges discipline 

their own. This is the—the trend that we have seen. 

And against that backdrop, I think 5219 is a little bit troubling, 

more troubling than the other witnesses find it, because it really 

represents a move away from this century-long tradition where we 

have entrenched norms, you know, enabling the judiciary to regulate itself, and toward something else, in which we give—take regulatory power away from the judiciary and hand it to an inspector 

general and, indirectly, we give it to Congress. 

Now, this is doubly troubling, it seems to me, because in this 

context we have a concern that notwithstanding the best intentions 

of the drafters, this bill can be used to go after the judiciary because of its decisions. 

I realize that is not Chairman Sensenbrenner’s intention. But if 

you read the language of the bill, it says quite specifically that it 

authorizes the inspector general to ‘‘conduct investigations of matters pertaining to the judicial branch.’’

And it would seem to me that the decisions judges render are 

within the scope of a matter pertaining to the judicial branch. Now, 

we can get into legislative parsing, and it is possible that we could 

read that out of the bill. 

But my concern is that in this current environment, where there 

are some Members of Congress—not in this room, but some Members of Congress—who are interested in using any way they can to 

retaliate against judges, this bill could be misused for that purpose. 

I am even more troubled by the fact that the role the Congress 

plays in this bill is considerable, that Congress has some say over 

who is going to be appointed. 

It has some say over what is investigated and on what terms, 

and when the reports are issued, which culminates, I think, in giving Congress the latitude to determine who is being investigated, 

which adds and opens another door to retaliatory strikes against 

individual judges. 

Now, some can say this is much ado about nothing, that we have 

inspectors general in the executive branch and they don’t have any 

of these problems. My point here is simply to say this isn’t the executive branch. 

This is an independent judicial branch that is different from an 

executive branch agency and where we ought to be a little more 

concerned about its independence. 

More importantly, and I think this is the point I want to—I want 

to emphasize—unlike the judiciary, the executive branch has weapons at its disposal to make sure that Congress doesn’t overreach, 

that Congress doesn’t try to erode the independence of the inspector general. 

And indeed, the history of the inspectors general and the executive branch that is, you know, included in a book I recently read 

from the Brookings Institution is all about Congress and the president jockeying for influence in such a way that the inspector general is preserved in his independence, so that, as one inspector general put it, we straddle a barbed-wire fence between these two 

branches. 

48

That barbed-wire fence isn’t there with the judiciary, which lacks 

the power to push back if Congress erodes its—if Congress pushes 

too hard. And as a consequence, I worry about that. 

Does that mean we do nothing? No. I think both Professor Rotunda and Professor Hellman have—and you, Chairman, have 

identified some serious problems that we need to grapple with. The 

first step I think is to hear what the judiciary has to say about 

these specific problems. 

There are not—it is not just the Breyer commission, but the commission on the judicial branch and the commission on codes of conduct are actively looking at these matters now. If the point is they 

need to expedite their inquiry, Congress should tell them that. And 

then at that point, we can decide whether stronger medicine is required. And it may be. 

A bill like this may ultimately be necessary, but not now. Thank 

you. 

[The prepared statement of Mr. Geyh follows:]

PREPARED STATEMENT OF CHARLES G. GEYH

My name is Charles G. Geyh. I am a Professor of Law at Indiana University at 

Bloomington, the author of When Courts & Congress Collide: The Struggle for Control of America’s Judicial System (University of Michigan Press 2006), and coauthor, 

(with Professors James Alfini, Steven Lubet, and Jeffrey Shaman) of the forthcoming fourth edition of Judicial Conduct and Ethics (Lexis Law Publishing 2007).

I am currently co-Reporter to the ABA Joint Commission to Revise the Model Code 

of Judicial Conduct, and previously served as consultant to the National Commission on Judicial Discipline and Removal. 

H.R. 5219, the Judicial Transparency and Ethics Enforcement Act of 2006,’’ has 

a laudable goal: to make the federal judiciary better accountable for its budget and 

for the ethical transgressions of its judges. Pursuing that goal by creating an inspector general for the federal judiciary, however, is highly problematic for at least two 

reasons:

• First, inspector general investigations can and likely will be exploited to punish judges for their judicial decisions, statements of bill sponsors to the contrary notwithstanding, thereby jeopardizing core judicial independence norms 

that Congress has respected for well over a century.

• Second, inspectors general are commonplace within executive branch agencies, but the judiciary is not an agency—it is an independent branch of government. To the extent that inspectors general for executive branch agencies 

have performed with independence and integrity, it is for reasons that the judicial branch is ill-equipped to replicate, because the judiciary lacks the powers of the executive branch to thwart Congressional intrusions into its inspector general investigations.

Although I have serious reservations about H.R. 5219, the bill serves the salutary 

purpose of communicating an important message to the judiciary: that Congress is 

serious about the judiciary’s ethical and fiscal responsibilities and that the judiciary 

should be equally so. Recent events reported in the press signal possible deficiencies 

in the judiciary’s ethics rules and disciplinary framework. The preferred approach 

is to work cooperatively with the courts to address the concerns that animate H.R. 

5219, rather than to impose a potentially problematic solution on an unwilling judiciary. Such a conversation should await the results of three ongoing projects within 

the judicial branch—Justice Stephen Breyer’s Commission on the disciplinary process; the Judicial Branch Committee’s study of privately funded seminars, and the 

Codes of Conduct Committee’s review of recusal issues—and take place in the shadow of this bill, giving Congress the leverage it needs to ensure meaningful reform. 

BACKGROUND

In the past few years, members of Congress have been highly critical of federal 

judges and their decisions, and have proposed a variety of reforms calculated to 

punish ‘‘judicial activists’’ and curb their excesses. Some have proposed to impeach 

49

1 Ralph Hallow, Rpublicans out ti Impeach ‘‘Sctivist’’ Jurists, WASHINGTON TIMES, March 12, 

1997, at A1. 2Stephen Dinan, House Targets Judicial ‘‘Errors’’ With a New Strategy; Votes to Stop Enforcement of Rulings on Pledge, Posting, WASHINGTON TIMES, July 29, 2003 at A1. 3 Rick Klein, DeLay Apologizes for Blaming Federal Judges in Schiavo Case but House Leader 

Calls for Probe of ‘‘Judicial Activism,’’ BOSTON GLOBE, April 4, 2005. 4 Ruth Marcis, Booting the Bench, WASHINGTON POST, April 11, 2005. 5 Alexander Bolton, Courts May Be Stripped on the Pledge, THE HILL, September 16, 2004 at 

1. 6For an elaboration upon these cycles of anti-court sentiment and the emergence of judicial 

independence norms, seeCHARLES GARDNER GEYH, WHEN COURTS AND CONGRESS COLLIDE: THE

STRUGGLE FOR CONTROL OF AMERICA’S JUDICIAL SYSTEM 51–113 (2006). 7For a discussion of this century-long project to make the judiciary better accountable to 

itself, see id. at 92–110

offending judges.1 Others have advocated defiance—one bill would deprive the executive branch of the resources to enforce judicial orders in specified cases.2 One suggested that Congress disestablish uncooperative courts,3 while another proposed to 

cut the judiciary’s budget to ‘‘get their attention,’’ 4 and many have pressed for legislation to deprive the courts of jurisdiction to hear specific kinds of cases on politically sensitive subjects.5

This is not the first time that federal judges have weathered a sustained period 

of criticism.6 The first occurred at the turn of the nineteenth century when Thomas 

Jefferson succeeded John Adams as president and the Jeffersonian Republican Congress dedicated itself to undoing damage they perceived the outgoing Federalists as 

causing the federal courts, by disestablishing judgeships and impeaching unpopular 

judges. A generation later, President Andrew Jackson and his supporters in Congress locked horns with the Marshall Court over the supremacy of the Supreme 

Court’s authority to impose its interpretation of the U.S. Constitution on the state 

and federal governments, and several states openly defied Court orders. Another 

generation after that, a radical Republican Congress squared off against the Supreme Court in the aftermath of the Civil War over a number of issues pivotal to 

the Reconstruction agenda, and stripped the Supreme Court of jurisdiction to hear 

a pending case. Roughly twenty-five years later, near the turn of the twentieth century, congressional populists and progressives advocated a variety of means to restrain the courts from invalidating legislative reforms at the state and federal levels. During the 1930s, an exasperated Franklin Roosevelt invited Congress to pack 

the Supreme Court with additional justices to thwart the Court’s conservative majority that had struck down several New Deal programs. The passage of another 

generation saw members of the Warren Court targeted for impeachment, and bills 

introduced to curtail federal court jurisdiction, all or in part because of their liberalleaning decisions in civil rights and civil liberties cases. 

In the 19th Century, Congress sometimes made good on these cyclical threats to 

impeach errant judges, disestablish their courts, or strip them of jurisdiction. 

Gradually, however, Congress—and the people it represented—came to appreciate 

that such threats were antithetical to an emerging Constitutional culture that respected the role independent judges play in American government and that rejected 

draconian proposals to manipulate the decisions that judges make. Although angry 

members of Congress have continued to make such proposals every generation or 

so, they are almost never implemented, as judicial independence norms have become 

more fully entrenched. 

That these heavy-handed means of court control gradually fell into disuse is not 

to suggest that Congress became indifferent to judicial accountability. Rather, Congress ultimately decided that the best way to balance the needs of judicial independence and accountability was to delegate to the judiciary the authority it needed to 

be better accountable to itself.7 And so, in 1891, Congress created the circuit courts 

of appeals for the express purpose of curbing district court despotism by means of 

appellate review. In 1922, it created the precursor to the Judicial Conference of the 

United States, thereby enabling the judiciary to govern itself as a branch; in 1934 

it delegated to the courts the power to make their own procedural rules; in 1939, 

it created the Administrative Office of U.S. Courts, thereby rendering the judiciary 

accountable for its own budget; and in 1980, it established a system for regulating 

judicial misconduct in which judges were authorized to discipline their own. 

H.R. 5219 CAN AND LIKELY WILL BE EXPLOITED TO PUNISH JUDGES

FOR THEIR JUDICIAL DECISIONS

At first blush, H.R. 5219 may look like another proposal in keeping with the modern trend toward equipping the judiciary with the tools it needs to make it better 

accountable to itself, by creating a Chief Justice-appointed inspector general ‘‘for the 

50

judicial branch’’ who bill sponsors have taken pains to emphasize ‘‘will not have any 

authority or jurisdiction over the substance of a judge’s decisions.’’ A closer look, 

however, reveals that notwithstanding the best intentions of its drafters, this legislation could be employed by members of Congress to manipulate judges and their 

decision-making in patently unacceptable ways. 

In evaluating the impact of proposed legislation on the courts, context matters. 

When President Franklin Roosevelt introduced his Court-packing plan in 1937, it 

was on the pretext that federal judges were elderly, had fallen behind in their work, 

and needed additional help. Superficially, then, his was an innocuous plan to improve the efficient operation of the courts. In context, however, this was an Administration furious with Supreme Court decisions invalidating New Deal legislation, and 

intent on finding a way to get around those decisions, and so—notwithstanding the 

President’s explanation—the court-packing plan was generally understood as a direct assault on the judiciary’s autonomy. Context matters with H.R. 5219 too. This 

is not a sympathetic Congress that is looking for ways to help the courts better administer themselves. This is an angry Congress that is dismayed with federal judges 

generally, with their autonomy, with the outcomes of cases that they have decided, 

and with the way they run their shop. When, in 2004, Chairman Sensenbrenner addressed the Judicial Conference on the relationship between Congress and the 

courts, he quite pointedly called attention to two recent disciplinary matters that 

in his view ‘‘raise[] profound questions with respect to whether the Judiciary should 

continue to enjoy delegated authority to investigate and discipline itself,’’ adding 

that ‘‘If the Judiciary will not act, Congress will.’’ The next year, when Chairman 

Sensenbrenner first elaborated on his proposal to create an inspector general for the 

judiciary, it was in the context of a speech at Stanford in which he expressed his 

dismay for ‘‘judicial activism’’ but pronounced impeachment too ‘‘extreme’’ a remedy, 

before adding in the very next sentence that ‘‘[t]his does not mean that judges 

should not be punished in some capacity for behavior that does not rise to the level 

of impeachable conduct’’ and hailing judicial discipline as the appropriate solution. 

Perhaps Chairman Sensenbrenner did not mean to imply that judicial discipline 

was an appropriate remedy for ‘‘activist’’ decision-making, but in the larger context 

of an angry Congress looking for ways to diminish the courts’ autonomy and control 

judges and their decisions, if H.R. 5219 can be construed to authorize investigations 

into judicial decision-making, odds are that some members of Congress will seek 

make it happen. 

H.R. 5219 is indeed written broadly and ambiguously enough to authorize inquiries into judicial decision-making:

• Section 1023 authorizes the Inspector General to ‘‘conduct investigations of 

matters pertaining to the Judicial Branch, including possible misconduct in 

office of judges and proceedings under chapter 16 of this title, that may require oversight or other action within the Judicial Branch or by Congress.’’ 

It would certainly seem that a judge’s decisions would fall within the ambit 

of ‘‘matters pertaining to the judicial branch,’’ unless the ‘‘including’’ clause 

that follows is intended to limit applicable ‘‘matters’’ to those involving judicial misconduct or proceedings under Chapter 16. While the latter construction is possible, it is strained and odd-seeming, because it would mean that 

the section conferred a sweeping investigatory mandate in one clause only to 

take it away in the next.

• Even if pertinent investigations were limited to questions of ‘‘misconduct in 

office by judges,’’ a judicial decision in which a judge rendered a decision by 

allegedly disregarding his oath to follow the law and substituting his own personal or political predilections, might well qualify as a form of misconduct. Indeed, Canon 3A of the Code of Conduct for U.S. Judges provides that ‘‘A judge 

should be faithful to and maintain professional competence in the law.’’ The 

judge whose decision arguably reflects a lack of competence or fidelity to the 

law would thus seem to fall within the zone of inquiry. It is possible to limit 

the construction of section 1023 still further to confine ‘‘misconduct in office’’ 

to matters actionable under Chapter 16—which calls for the dismissal of complaints related to the merits of judicial decisions. If, however, the objective 

is to place judicial decision-making clearly outside the scope of inspector general inquiries, the bill should say so with clarity.

• Finally, even assuming that a judge’s decisions are technically outside the 

scope of section 1023, angry members of Congress may agitate for investigations targeting unpopular judges, ostensibly on the grounds that the judges 

in question have mismanaged their budgets or engaged in ethical improprieties independent of their decisions. In this context, heightened scrutiny is 

itself a form of Congressional retaliation. 

51

8For a history of inspectors general within the executive branch, see PAUL C. LIGHT, INSPEC- TORS GENERAL AND THE SEARCH FOR ACCOUNTABILITY (1993). 

THE JUDICIARY LACKS THE POWERS OF THE EXECUTIVE BRANCH TO THWART

CONGRESSIONAL OVERREACHING INTO ITS INSPECTOR GENERAL INVESTIGATIONS. 

Proponents of H.R. 5219 have pointed to the success of inspector general programs within administrative agencies as evidence of their potential value within the 

judiciary. The judiciary, however, is not an administrative agency. It is a separate 

and independent branch of government—and one that lacks the powers at the executive branch’s disposal to resist Congressional overreaching. 

H.R. 5219 gives Congress a significant role to play in the workings of the proposed 

office of inspector general for the federal judiciary. First, under § 1022, the Chief 

Justice appoints the inspector general ‘‘after consultation’’ with Congressional leaders. Although the Chief Justice’s nominee may not technically require Congressional 

approval, in the current political climate such approval will be a practical necessity. 

Second, in § 1023(1), the ambit of the Inspector General’s duties are defined to reach 

‘‘matters pertaining to the judicial branch . . . that may require oversight or other 

action . . . by Congress.’’ Third, § 1025(a)(1) directs the Inspector General to make 

annual reports to Congress, while § 1025(a)(2) directs the Inspector General to 

‘‘make prompt reports to . . . Congress on matters that may require action by [it].’’

Taken together, these powers would give Congress the leverage to influence who 

is named Inspector general, which judges are targeted for investigation, what kinds 

of information the inspector general provides to Congress, and when. When Congress intrudes too far on the prerogatives of inspectors general within the executive 

branch, the executive branch is well equipped to push back, given the President’s 

considerable political influence and his veto power in the legislative arena. The history of inspectors general within administrative agencies is thus one of constructive 

tension between the legislative and executive branches as they jockey for influence.8

The judiciary, however, lacks the power to push back, and is thus far more vulnerable to Congressional incursions upon its autonomy, where, as here, the legislation affords Congress so significant a role to play in the inspector general’s operations. The only weapon at the judiciary’s disposal to fend off such incursions is judicial review—which all agree should be used sparingly, and which, if employed in 

this context, could precipitate a constitutional crisis. 

CONCLUSION

H.R. 5219 seeks to address a bona fide problem. Federal judges have come under 

fire for their attendance at expense-paid seminars, their failure to disqualify themselves from cases in which recusal would seem to be warranted, the absence of ethical standards applicable to the Supreme Court, and the failure of the disciplinary 

process to call judges to task in cases where it was arguably warranted. For the reasons specified above, H.R. 5219 is an ill-advised solution to these problems that 

would jeopardize a tradition of restraint in the relationship between courts and Congress that is well over a century in the making. The preferred approach is to await 

the report of Justice Breyer’s Commission together with the results of related efforts 

by Judicial Conference Committees on the Judicial Branch and the Codes of Conduct, and then work cooperatively with the Judicial Conference to meet Congress’s 

remaining concerns. If the judiciary is unwilling to reform itself in the teeth of evidence that further reform is necessary, that may be the time to consider stronger 

medicine. But not now.

Mr. COBLE. Thank you, Professor Geyh. 

Thanks, Professors, all. 

Now, we imposed the 5-minute rule against us as well, so we will 

commence our line of questioning. 

Professor Rotunda, this may be a rhetorical question, but I want 

to get it on the record. Critics argue that the creation of a judicial 

inspector general is overreaching by Congress and threatens the 

independence of the third branch. What say you to that? 

Mr. ROTUNDA. That is not what this bill proposes. It has got—

under the bill, the chief justice appoints the inspector general. The 

duties of the inspector general are limited. Congress has no role 

that concerns the inspector general. There is talking back and 

forth. That can’t possibly be wrong or erode independence. 

52

I think efforts by Congress to restrict the courts’ jurisdiction, to 

increase the number of judges on the Supreme Court like FDR’s 

court-packing plan—that erodes judicial independence. This is simply giving a modest amount of judicial accountability. 

Mr. COBLE. Professor Hellman, in your testimony you alluded to 

a gap in the current Federal misconduct statutes. Elaborate a little 

more in detail on that, A. And is it your belief that the bill before 

us would close this gap? 

Mr. HELLMAN. Thank you, Mr. Chairman. Yes. The gap basically 

is one that occurs in those situations where the circuit processes 

have not worked in a specific way, that the—that there—there is 

an issue that should have been heard, an allegation of misconduct 

that should have been heard by a special committee because there 

are issues of fact that are open to dispute. The statute as amended 

in 1980—amended in 2002 requires that. 

If that happens, if the chief judge of the circuit doesn’t appoint 

a special committee, even though he or she should, and if the circuit council ratifies that by dismissing the complaint, there is no 

appeal to the circuit conference. 

The circuit—five members of the panel were frustrated that—the 

three dissenters more than the two in the majority, who thought 

there was just nothing they could do. 

This bill can be used to fill that gap. I think it has to be written 

a little bit more carefully to do that, but it can make clear that 

there is a channel of review for those cases, and I think that will 

give the people substantially more confidence in the process. 

Mr. COBLE. Thank you, sir. 

Professor Geyh, how will a judicial inspector general be exploited 

to punish judges in their judicial decisions, if, in fact, they will be 

exploited, A? And B, cannot Members of Congress currently file 

complaints alleging judicial misconduct under the 1980 act? 

Mr. GEYH. Fair questions, Mr. Chairman. I think the first point 

is that the bill itself says the inspector general can conduct investigations of matters pertaining to the judicial branch. 

That means that if an angry Member of Congress says I don’t 

like this particular decision, that would be a matter falling within 

the judicial branch. 

More specifically, though, let’s even limit it to the qualifying 

clause that it deals with issues of misconduct. Canon 3A of the 

Code of Conduct for United States judges says judges must be 

faithful to the law. 

If a Member of Congress says this judge is an activist judge who 

has disregarded the law, we now ought to investigate that as a violation of Canon 3A, and that is a form of misconduct that will properly fall within the scope of this bill. That is what worries me. 

Even if that is avoided, I think the larger problem is that if there 

is a decision that Members of Congress don’t like, you can target 

that judge for an investigation, irrespective of whether you are 

going after his decisions. 

You can say this judge decided case X in Y way, we now want 

to have it investigated because we think he is mismanaging his 

budget or because his ethical transgressions in other cases are worthy of investigation. 

53

It is true that Congress can now file complaints, but this gives 

the Congress a formal avenue with which to go to the inspector 

general and start directing the inspector general to be conducting 

investigations of particular kinds. 

That doesn’t happen in the executive branch. I worry, however, 

that the judicial branch is really going to have trouble preserving 

the independence of the inspector general under circumstances in 

which, unlike presidents, you don’t have that kind of authority to 

what I call push back. 

Mr. COBLE. Before the red light appears, Professor Rotunda, your 

body language tells me you want to insert your oars into these waters for rebuttal, so I will recognize you. 

Mr. ROTUNDA. I am Italian. I have to talk with my hands, not 

just my mouth. [Laughter.] 

But if you look at—I mean, I disagree with Professor Geyh’s interpretation of the statute, the proposed statute. 

Section 1023 under the duties—the duties are not to conduct investigations of matters pertaining to the judicial branch. It says 

conduct investigations of matters pertaining to the judicial branch 

that may require oversight or other action within the judicial 

branch or by Congress. 

The inspector general could find a problem with the judiciary 

that needs a statutory solution and officially tell Congress about it. 

That is—that is a useful but not earth-shaking reform. 

The inspector general could—sadly, this happens—find a situation where Congress has to impeach, propose impeachment. That 

has been done before. It has been done once in the last several decades, and hopefully never again. 

These are very modest—it is not just to conduct investigations of 

the judicial branch. It is that requires oversight or other action 

within the judicial branch that you tell—you tell the chief justice 

or that requires a statutory solution. That is very modest. 

Mr. COBLE. Well, I thank you, sir. 

My time has expired. 

The distinguished gentleman from Virginia, Mr. Scott? 

Mr. SCOTT. Thank you, Mr. Chairman. Mr. Chairman, the thing 

that concerns me is the congressional involvement in the selection 

of the I.G. 

What would the reaction be if some other branch of Government 

had a say in who the congressional I.G. would be? Say the President could help select such a person, or the judicial branch could 

help—such a person. 

What would—Mr. Geyh, what would you think the reaction 

would be? 

Mr. GEYH. Well, my—my impression is that—that there—Congress has a significant interest in preserving its own autonomy, 

and that if there were some interest in other branches dictating 

who the appointees of that branch were, it would not be well received. 

I think that is an understandable reaction, which is part of the 

reason why I don’t say so in my testimony, but I would have no 

aversion to Congress authorizing the judiciary to create an inspector general. 

54

And I should add, by the way, that—and this is just as an 

aside—there is no provision in this bill for the removal of inspectors general, and that worries me a little bit. Who has that power 

and under what circumstance? 

It seems to me that if this bill goes forward, at a minimum there 

ought to be something in there about—about removal. 

Mr. SCOTT. I would ask either Mr. Rotunda or Mr. Hellman, 

where is it in the bill that prohibits the I.G. from reviewing and 

commenting on and reporting on the compliance with precedents in 

actual opinions that are written? 

Mr. ROTUNDA. There is—there is—there is no authority for them 

to do that anywhere in the—in the proposed statute. I mean——

Mr. SCOTT. Well, it says——

Mr. ROTUNDA. —if you look at—duties under 1023, looking at 

now——

Mr. SCOTT. Wait, wait. Let me—let me—let me—let me read——

Mr. ROTUNDA. Yes. 

Mr. SCOTT. —make an annual report to the chief justice and the 

Congress relating to activities of the office and make prompt reports to the chief justice and Congress on matters that may require 

action by them. 

That would certainly cover opinions. We might have to take action if they have an opinion that a law was unconstitutional. 

Mr. ROTUNDA. Congressman Sensenbrenner has already publicly 

stated that the purpose——

Mr. SCOTT. Well, I——

Mr. ROTUNDA. No, I mean, I think we can clear up the statutory 

language. 

Mr. SCOTT. Okay. 

Mr. ROTUNDA. I thought——

Mr. SCOTT. But it is not—it is not in the bill——

Mr. ROTUNDA. Well, I thought——

Mr. SCOTT. —as you read it. 

Mr. ROTUNDA. I thought it was limited under section 1023(1) but 

I certainly have no objection to making the bill more clear. 

Mr. SCOTT. Okay. Do you see—it would have to be made clear 

that we are not talking about their opinions? Or are we talking 

about their opinions? 

Most of the complaints from this Committee come from the opinions, not from—and yesterday we were talking about limiting jurisdiction of the Federal courts because we didn’t like what they 

might potentially decide. 

Mr. HELLMAN. May I just add——

Mr. SCOTT. Now we are talking about impeaching judges who 

don’t rule the way we want. I mean, we have had a lot of complaints from this Committee. 

Mr. HELLMAN. May I just add briefly, I would very much like to 

see that made explicit in the bill. I think the—Chairman Sensenbrenner has said that very emphatically. 

But there will be people who will read this in the light that you 

and others have, and it seems to me the sensible thing to do is to 

make that explicit and strong in the bill. 

Mr. SCOTT. Okay. Let me ask another question. What is the purpose of consulting with congressional leaders? Mr. Geyh suggested 

55

that there is nothing inherently wrong with an I.G., but what is 

the deal about consulting with partisan congressional leaders as to 

who it ought to be? 

Mr. ROTUNDA. When Congress urged the president to appoint a 

special prosecutor against Richard Nixon after Archibald Cox resigned, the attorney general put in the regulation that it would—

they would appoint a special prosecutor after consultation with 

senior leaders of the House and Senate Judiciary Committees. 

I don’t think there is anything unconstitutional about that, as 

long as the House and Senate don’t—aren’t the ones appointing, 

because they have no appointing authority under our Constitution. 

I thought it was a matter of kind of comity. I don’t think it is essential to the bill. 

But it is not unconstitutional to talk. It is a free country. 

Mr. SCOTT. Well, yes, but to require the consultation, you have 

to assume that it is going to have some influence on the selection. 

Wouldn’t the—if you can influence the selection of who the I.G. is 

going to be, aren’t you kind of influencing which judges are going 

to be the ones investigated? 

Mr. ROTUNDA. Well, advice is persuasive if it is wise. I think——

Mr. SCOTT. Or if it is coercive. 

Mr. ROTUNDA. I don’t know how you are going to coerce the chief 

justice. What can you do? I mean, what can you do to him, really? 

So——

Mr. SCOTT. What should you do to him, I guess, would be another—my time is just about up. 

Let me ask one final question. I don’t see—maybe I didn’t read 

it carefully. Is there subpoena power for this I.G. in here? 

Mr. ROTUNDA. I believe there is. 

Mr. HELLMAN. Yes, it is. 

Mr. SCOTT. There is? 

Mr. HELLMAN. Section 1024. 

Mr. SCOTT. Ten twenty-four? 

Mr. ROTUNDA. Twenty-four three. 

Mr. SCOTT. Okay. 

Thank you, Mr. Chairman. 

Mr. COBLE. Thank you, Mr. Scott. 

The distinguished gentleman from Ohio, Mr. Chabot? 

Mr. CHABOT. Thank you, Mr. Chairman. I have no questions at 

this time. I want to thank you for holding this hearing, however. 

Mr. COBLE. I thank you, sir. 

The distinguished gentleman from Massachusetts, Mr. Delahunt? 

Mr. DELAHUNT. Thank you, Mr. Chairman. 

This bill does not carry any criminal sanctions. 

Mr. ROTUNDA. No. 

Mr. DELAHUNT. I guess my query is to the chair, who is on his 

way out, but what is this bill doing here? 

Mr. Chabot, maybe you can answer that. 

Mr. CHABOT. No, Mr. Chabot can’t answer that. I just got here 

a few minutes ago. 

Mr. DELAHUNT. Okay. 

Mr. CHABOT. I was in another hearing, and I am just holding the 

chair. I am sure when Mr. Coble gets back here he will be able to 

fully satisfy your questions. 

56

Mr. DELAHUNT. No, I mean, it——

Mr. SCOTT. If the gentleman would yield——

Mr. DELAHUNT. Sure. 

Mr. SCOTT. —I made a similar inquiry earlier, and——

Mr. DELAHUNT. Am I at the right Subcommittee? Is this the Subcommittee on Crime? [Laughter.] 

Mr. SCOTT. The answer was essentially that the bill is here. 

Mr. DELAHUNT. Okay. You know, I agree. I think there is really 

a consensus from what I am hearing from academia as represented 

by the three that language can be cleaned up. You know, the appointment power can eliminate the consultative process, and we 

can be clear as to the I.G. not being implicated into rendering opinions on opinions, what have you. 

I think it was you, Professor Hellman, that talked—or maybe it 

was you, Professor Rotunda, that was talking about is the sky falling. I am just uncertain as to the magnitude of the perceived problem. 

I think it was you, Professor Hellman, that talked about, you 

know, erosion of the confidence of the American people in the system. Well, I don’t believe that is something that most Americans 

wake up in the morning and are concerned about. 

And I am not trying to minimize the fact that there might be an 

issue there. But I guess where I am coming down is the Breyer 

Committee—at least it is my understanding—is going to issue a report some time in the fall. I can assure you that this particular 

Committee will not be in a position to respond before that. 

But I would like to hear from representatives of the Judicial Conference as to, first of all, the need, and then their perspective and 

view as to what is necessary in terms of meeting that need and 

what kind of a mechanism. 

Professor? 

Mr. HELLMAN. Thank you, Mr. Delahunt. I have two quick responses to that. No, I don’t think the sky is falling either way, actually. But the—and it is certainly true that people don’t wake up 

in the morning thinking oh, my God, the independent judiciary is 

doing all these terrible things, and we have to do something about 

it. 

But I do think there can be a subtle erosion of confidence, and 

one of the reasons it can be a problem today perhaps more than 

in the past is the amplifying effect of the media. We have talk 

radio raising an issue, and then it gets talked about in the blogs, 

and then the talk radio gets it again. 

There are Web sites devoted to pursuing judges for alleged misconduct. 

Mr. DELAHUNT. Judicial Watch, et cetera. I don’t disagree with 

that, and I think that actually many of us in—some of us in Congress are responsible for that, because I think it was you, Professor 

Geyh, that talked about, you know, the term ‘‘activist judges’’—of 

course, that is—so much depends on the perspective of the individual that—the perspective of what activism is. 

But this is not going to solve that issue. 

Mr. HELLMAN. No, it is not going to solve that issue. 

Mr. DELAHUNT. And I don’t even think it will impact it whatsoever. 

57

Mr. HELLMAN. Well, that in a way was my second point, which 

is that I regard this, as Professor Rotunda does, as a relatively 

modest measure. But the other thing—I think you are absolutely 

right about your larger point, which is that there has been an escalation of rhetoric. 

And I think it has been on both sides, where you have one side 

looking at a—saying not just this is a bad decision, but this is judicial activism run amok, and then on the other side you have people 

saying this is—not just this is a bad piece of legislation——

Mr. DELAHUNT. No, I——

Mr. HELLMAN. —the judiciary. 

Mr. DELAHUNT. We are totally in agreement. I thought what was 

interesting last night—in fact, I was discussing this earlier today 

with my friend and colleague from Virginia—was a recent Supreme 

Court decision relative to the no-knock issue. 

And I noted that some of my colleagues on this side were supporting legislation which would limit—would impose limitations on 

funding for—pursuant to that particular decision. 

So while I would suggest that in the course of the past 4 years 

or 5 years we have been hearing from the more conservative Members of Congress about their unhappiness with what they perceive 

to be liberal activist judges, clearly it will go the other way presumably with the advent of the Roberts court. 

And I just am one who believes in the most profound protection 

for the independence of the judiciary even if I happen to disagree 

with a particular opinion. That is just an unsolicited observation. 

Mr. COBLE. I thank the gentleman from Massachusetts. 

And I think Mr. Scott has one more question to put to the panel. 

Mr. SCOTT. I just wanted to ask Mr. Geyh—you mentioned the 

authorization of an I.G. as one thing that could be done. Are there 

other things that could be done? 

Mr. GEYH. Well, the one thing that I would suggest is that virtually every State in the United States links their disciplinary 

process—their judiciaries do—to their code of conduct. 

And the confusion that surrounds a lot of these cases, where you 

have got recusal problems or a pro se litigation problem—not pro 

se litigation, excuse me; ex parte communications—can be resolved 

if you just link the two. 

I mean, I find, in other words, that you have this elaborate code 

that tells us when it is inappropriate to engage in ex parte contacts, when it is inappropriate to disqualify. 

And there is—the Federal judiciary is alone among judiciaries in 

not linking those two. I think one way to deal with that is to 

amend, you know, the statute to instead of saying judges should be 

disciplined for engaging in conduct that is contrary to the administration of justice, this vague standard that is currently there, to 

linking it to conduct that violates their—the code of judicial conduct that they already have in place. 

Mr. COBLE. I thank the gentleman. 

In my opening statement, gentlemen, I—alluding to the previous 

hearing that was mentioned earlier, I said we learned from that 

hearing that the complaint process was largely unpublicized and 

that transparency issues persisted. 

58

I should have said and that a lack of transparency issues persisted, just for the record. 

We appreciate very much, gentlemen, your contribution today. 

The Subcommittee will benefit from this, I am confident. In order 

to ensure a full record and adequate consideration of this important issue, the record will be left open for additional submissions 

for 7 days. 

Also, any written question that a Member wants to submit 

should be submitted within the 7-day period. 

Did you have something, Bobby? 

Mr. SCOTT. Yes, I would like a letter from the Judicial Conference of the United States—we didn’t invite them, but they did 

submit a letter to you, a copy to me, and I would like this part of 

the record. 

Mr. COBLE. Without objection, it will be made a part of the 

record. 

[The letter follows in the Appendix.] 

Mr. COBLE. And this concludes the legislative hearing on H.R. 

5219, the Judicial Transparency and Ethics Enhancement Act of 

2006. Thank you for your cooperation and attendance. 

And the Subcommittee stands adjourned. 

[Whereupon, at 12:39 p.m., the Subcommittee was adjourned.] 

(59)

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF THE HONORABLE ROBERT C. SCOTT, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF VIRGINIA, AND RANKING MEMBER, SUBCOMMITTEE

ON CRIME, TERRORISM, AND HOMELAND SECURITY

Thank you, Mr. Chairman. I’m pleased to join you in convening this hearing on 

H.R. 5219, the ‘‘Judicial Transparency and Ethics Enhancement Act of 2006.’’

I am in favor of Congress conducting regular oversight over the administrative operations of the courts through reports, hearings, and avenues of communication. 

And I’m in favor of the Congress authorizing, not requiring, the Judicial Conference 

to appoint an inspector general or other such official, to assist it in its efforts to 

reign in judges who don’t follow the rules, and to develop reports to be sent to Congress and elsewhere the Conference might direct. But I am not in favor of the Congress requiring the appointment of a Judiciary IG in whose appointment it has a 

say and who reports to Congress as directed or required by Congress. I believe that 

such a congressionally influenced position would clearly offend traditional notions 

of separation of powers and comity between the Legislative and Judiciary Branches. 

Moreover, I believe the creation of such a position is unnecessary. 

If we are dissatisfied with the way the Judiciary is addressing judicial discipline 

and other matters, we should notify Chief Justice Roberts as you and Ranking 

Member Berman did with Chief Justice Rehnquist when you were Chairman of the 

Courts Subcommittee, Mr. Chairman, and give Chief Justice Roberts a chance to respond to us. Granted, the reports of judges taking, and not reporting, lavish, privately financed trips, and of judges not reporting conflicts of interest as required, 

as well as failing to recuse themselves as appropriate, are disturbing. While these 

matters require the Judicial Conference’s attention as well as our oversight attention, there are a number of approaches available to the Congress to satisfy itself 

that these issues are being appropriately addressed by the Judiciary, short of establishing a Congressionally directed Judiciary Inspector General. There is evidence 

the Judicial Conference is addressing the issues, including the indications in its letter to us dated yesterday. If more specific information is desired, perhaps a letter 

to the Chief Justice requesting an update on the Conference’s progress toward addressing the issues and problems we are hearing about would be appropriate. 

The Judicial Branch is certainly not the only branch with disturbing reports of 

inappropriate privately financed trips and conflicts of interest, and worse. There 

continues to be a number of such reports regarding members of Congress, despite 

actions taken by the Congress over the years to address the problems, including establishing an Inspector General. While the Congress has an oversight responsibility 

to see to it that the public resources it makes available to the other branches are 

expended in a publicly accountable and proper manner, oversight of the ethics of 

individual employees of those branches is better left to the branches, short of the 

necessity for use of Congress’ impeachment powers. 

With these reservations, Mr. Chairman, I look forward to the testimony of our 

witnesses for their insight on the issues raised by H.R. 5219. Thank you.

60

PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF MICHIGAN, AND RANKING MEMBER, COMMITTEE

ON THE JUDICIARY


Conyers.eps
61

LETTER TO THE HONORABLE HOWARD COBLE FROM LEONIDAS RALPH MECHAM, 

SECRETARY, JUDICIAL CONFERENCE OF THE UNITED STATES


JC0001.eps
62


JC0002.eps
63


JC0003.eps
64


JC0004.eps
65

Æ


JC0005.eps