Congressional Oversight of Judges and Justices
Released: 2005-05-31T00:00:00

This report addresses Congress's oversight authority over individual federal judges or Supreme Court Justices. Congressional oversight authority, although broad, is limited to subjects related to the exercise of legitimate congressional power. While Congress has the power to regulate the structure, administration and jurisdiction of the courts, its power over the judicial acts of individual judges or Justices is more restricted. For instance, Congress has limited authority to remove or discipline a judge for decisions made on the bench. Article III, Section 1 of the Constitution provides that judges have "good behavior" tenure, which effectively has come to mean lifetime tenure for Article III judges subject to removal only through conviction on impeachment. However, impeachment of a judge or justice requires a finding that such judge or Justice has engaged in a "High Crime or Misdemeanor." Thus, an investigation into decisions or other acts by a particular judge pursuant to an impeachment would appear to require some connection between an alleged "High Crime or Misdemeanor" and a particular case or cases.

Of course, review and consideration of particular court decisions or other judicial acts are well within the purview of Congress's legislative authority. For instance, Congress has the legislative authority to amend statutes that it believes were misinterpreted by court cases, or to propose amendments to the Constitution that it believes would rectify erroneous constitutional decisions. However, investigating the judge or Justices behind such decisions may require something more. This report reviews a number of circumstances in which Congress may be authorized to either pursue or otherwise influence an investigation of individual federal judges or Supreme Court Justices.

The report first addresses the general powers and limitations on Congress's oversight authority. Second, the report examines the Senate approval process for the nominations of individual judges or Justices, and the Senate's ability to obtain information on judicial acts by individual judges or Justices during that process. The report also considers the limits of existing statutory authority for judicial discipline within the Judicial Branch, and how Congress has influenced such procedures. It discusses the issue of how far congressional investigatory powers can be exercised regarding possible judicial impeachments. Finally, it treats investigations regarding the individual actions of a judge outside of the above contexts, such as how a judge imposes sentences under the United States Sentencing Guidelines.

I. Congressional Oversight Authority

Throughout its history, Congress has engaged in oversight—the review, monitoring and supervision of the implementation of public policy. These oversight powers are based on Congress's authority to engage in effective inquiries and investigations to assure itself and the public that the laws are being "faithfully executed." The first several Congresses inaugurated such important oversight techniques as special investigations, reporting requirements, resolutions of inquiry, and use of the appropriations process to review executive activity. Contemporary developments, moreover, have increased the legislature's capacity and capabilities to oversee and check the Judiciary and the Executive. For instance, public laws and congressional rules have measurably enhanced Congress's implied power under the Constitution to conduct oversight.

Although oversight may occur regarding any matter within the legislative purview of the Congress, such oversight can become particularly complicated as regards the other branches of government. These congressional investigatory powers derive from Congress's various legislative authorities over those branches, whether it be the power of the purse, the power to organize the Executive and Judicial Branches, or the power to make all laws necessary for "carrying into Execution" Congress's own enumerated powers as well as those of the Executive. Such legislative and oversight powers can even extend to individual assessments of the performance of judges or Justices, such as might occur during a judicial nomination process or during an impeachment proceeding.

For instance, as is discussed below, any number of oversight methods would be available to obtain information regarding a particular judge or Justice during a nomination process. These might include informal Member contacts with the judge or Justice; congressional staff studies; studies prepared by congressional support agencies or noncongressional entities; and formal committee hearings. To the extent that the cooperation of the Executive or Judicial Branches is required to facilitate these processes, these methods would generally be sufficient. Even if there were a dispute between the branches as to access to information, the threat of withholding consent to the nomination would be likely to lead to some accommodation of congressional requests.

However, the question arises as to whether the Congress has the authority to compel the Judicial or Executive Branch to provide information on individual judges or their judicial acts. One possibility is for the Congress to establish statutory reporting requirements. As is discussed below, Congress has, by statute, provided that the Department of Justice must provide information to Congress on downward departures under the United States Sentencing Guidelines by individual federal judges. As is discussed below, Justice Rehnquist, however, has suggested that this provision, know as the Feeney Amendment, is a violation of separation of powers. Further, a district court considering this provision has struck it down.

A more controversial option would be to attempt to compel judges and Justices to respond to congressional oversight through the subpoena and contempt process. For instance, committees have the authority to issue subpoenas for testimony or documents. Refusal to comply with such a subpoena is punishable as a contempt of Congress, which could result in imprisonment for up to one year and/or a fine of up to $100,000. Most often, however, the threat of contempt, or the actual vote of a committee or of the House itself, has resulted in compliance before the referral for prosecution.

However, outside the impeachment context, the efficacy of such an oversight method with respect to federal judges or Justices seems unclear. A successful use of the criminal contempt mechanism by a committee needs to overcome two formidable legal and practical obstacles. First, although the Speaker (or in the case of the Senate, the President of the Senate) may certify a statement of facts of such contempt "to the appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury for its action," the Department of Justice has taken the position that Congress cannot constitutionally direct that the Executive initiate a contempt prosecution. In the instance of a prosecution of a judge for failure to comply with a congressional subpoena, for instance, the Department of Justice may weigh pragmatic and legal factors, e.g., a likely unfriendly forum and the availability of the impeachment process, as reasons to decline to prosecute.

A second option might be for the full Judiciary Committee to seek a House resolution authorizing it to bring a civil action to compel compliance with the subpoena. Such an action, if successful, serves to either force the witness to testify or produce the documents sought, or subjects the subpoenaed person to a contempt of court for failure to comply with court's order. The down side to this course, as with the first option, is that it takes place in a forum likely to be sympathetic to a claim of congressional intrusion on judicial independence. It does not appear that the House has ever enforced a subpoena against a sitting federal judge.

A third option is utilization of the statutory judicial discipline process. Currently, federal judges are subject to internal discipline proceedings within the Judiciary. These judicial discipline procedures are available to anyone, including a Member of Congress, who deems it appropriate to file a complaint against a federal district court judge, judge of a U.S. circuit court of appeals, bankruptcy judge, or magistrate judge. While this oversight option is not directly controlled by Congress, information derived from this process may ultimately serve as the basis for impeachment proceedings. Finally, the Committee might seek a resolution of the House authorizing the Judiciary Committee to investigate the conduct of a judge to ascertain whether formal impeachment proceedings might be appropriate.

II. Limits on Congressional Investigatory Authority Over the Judiciary

Congress's oversight authority is based on obtaining information that will assist it in the legislative process with respect to matters within its constitutional purview. These powers are acknowledged to extend to the Judiciary and the operations of the courts, but only up to a point. Chief Justice Rehnquist, in the context of recent congressional actions with respect to downward departures in sentencing by federal judges, attempted to define that line of demarcation as follows:

... We can all recognize that Congress has a legitimate interest in obtaining information which will assist in the legislative process. But the efforts to obtain information may not threaten judicial independence or the established principle that a judge's judicial acts cannot serve as a basis for his removal from office.

It is well settled that not only the definition of what acts shall be criminal, but the prescription of what sentence or range of sentences shall be imposed on those found guilty of such acts, is a legislative function—in the federal system, it is for Congress. Congress has recently indicated rather strongly, by the Feeney Amendment, that it believes there have been too many downward departures from the Sentencing Guidelines. It has taken steps to reduce that number. Such a decision is for Congress, just as the enactment of the Sentencing Guidelines nearly twenty years ago was.

The new law also provides for the collection of information about sentencing practices employed by federal judges throughout the country. This, too, is a legitimate sphere of congressional inquiry, in aid of its legislative authority. But one portion of the law provides for the collection of such information on an individualized judge-by-judge basis. This, it seems to me, is more troubling. For side-by-side with the broad authority of Congress to legislate and gather information in this area is the principle that federal judges may not be removed from office for their judicial acts.

The Chief Justice acknowledged that this principle is not set forth in the Constitution but was established in the impeachment trial of Judge Samuel Chase in 1805 when the Senate failed to convict Chase. The Chief Justice states that the acquittal "represented a judgment that impeachment should not be used to remove a judge for conduct in the exercise of his judicial duties." The Chief Justice reiterated his reliance on this principle in his most recent report to Congress on the state of the Judiciary.

The Chief Justice does not define what he means by "conduct in the exercise of his judicial duties." For example, this reference may be intended to suggest that the appropriate means for challenging a judge's decision on a given case is not the impeachment process, but rather the appeals process, which affords the parties affected an opportunity for review of the judge's decision and correction of errors in that judgment. In addition, the reversal of a lower court decision does not generally mean that the judge below had engaged in conduct rising to the level of a "high crime or misdemeanor." On the other hand, the Chief Justice's statement are unlikely to be interpreted to mean that a judge should not be impeached for criminal acts from the bench, gross misconduct on the bench, or abuse of his or her judicial office, as a review of the past judicial impeachments would significantly undercut such a view.

It should be noted, however, that outside of the impeachment context, the use of compulsory process against a sitting judge has been extremely rare. One such instance occurred in 1953 when a House Judiciary subcommittee subpoenaed federal district court Judge Louis E. Goodman to testify about allegations that judges and prosecutors had improperly interfered with a grand jury investigation of misconduct of officials of the (then) Internal Revenue Bureau.

Judge Goodman appeared before the subcommittee and refused to testify about the grand jury matters in question, either in public or in executive session, citing both grand jury secrecy rules (which would allow such revelations only in judicial proceedings) and the independence of the Judiciary. After the judge read a pair of statements into the record, the subcommittee questioned the judge, but he continued to refuse to reveal matters pertinent to the grand jury proceedings. After the close of the hearing the judge's refusal to respond to the Subcommittee's inquiries was not further pursued.

In sum, an evaluation of the limits on congressional investigatory oversight authority requires an examination of the contexts in which Congress does have authority over the federal court. There is little question that where Congress is investigating the federal courts generally, its investigatory authority is broad, as Congress has significant legislative authority over the structuring of the Judicial Branch. However, where Congress is investigating individual judges or Justices, then it would appear that Congress may need to articulate a legislative basis or some other constitutional authority for such investigation. Following is a discussion of some of these congressional authorities and precedents.

III. Judicial Nominations

Under the Appointments Clause of the Constitution, Art. II, Section 2, Clause 2, the President appoints federal Article III judges and Justices of the U.S. Supreme Court "by and with the Advice and Consent of the Senate." Some of the broadest authority of the Congress to investigate individual judges or Justices would appear to arise during the nominations process. Although the use of subpoenas is unusual in the nomination and confirmation process, other means of oversight can be utilized toward the end of informing Congress as to the qualifications of the nominee. These opportunities can arise in a number of different procedural contexts.

The Constitution appears to separate the appointments process into three stages: nomination by the President alone; consent (or rejection) by the Senate; and final appointment and commissioning of the appointee by the President. As to the Senate's "advice" on the nomination, Presidents have varied as to the extent to which they have sought input from the Senate on nominations. Frequently, a President faced with the task of making a Supreme Court nomination will, as a matter of courtesy, consult with party leaders in the Senate, members of the Senate Judiciary Committee, and Senators from a potential nominee's home state, particularly Senators from the President's political party. Depending on the importance or contentiousness of a particular nomination, significant information may be gathered by both the Executive Branch and by outside groups on potential nominees. Access to such information by a Senator at this stage of the proceedings would be likely to be obtained informally. The benefit of such information would be primarily for Senators seeking to influence a President's decision as to a prospective Supreme Court nominee. Efforts by a Senator to influence such a decision may include both private consultation with the Executive Branch, or with the expression of views in a public forum, whether in committee, on the floor of the Senate or in statements to the media.

The consent phase is generally more rigidly structured. In recent years, the role of the Senate Judiciary Committee has usually consisted of three stages: a pre-hearing investigative stage; public hearings; and a committee decision as to what recommendation to make to the full Senate on the nominee. Each of these stages would appear to represent an opportunity for Congress to exercise extensive oversight.

Later proceedings seem to present less opportunity for investigations. Following committee consideration, a nomination reported out of Senate Judiciary Committee is placed on the Executive Calendar to be considered in executive session. In the absence of a vote to the contrary, such executive sessions is open to the public. Under current practice, floor debate on Supreme Court nominations are open to the public, the press, and, since 1986, to live television coverage.

However, the increased contentiousness of the judicial confirmation process over the last three decades may be said to have fundamentally changed the nature of that process. The accumulated precedents over these years arguably indicates that the Senate, or a determined minority of that body, has some leverage to obtain access to information regarding judicial nominees that is not ordinarily available to a committee engaged in an investigatory oversight proceeding. For instance, when the President submits a nomination to the Senate, the dynamics of the inquiry process may be different from that of an oversight investigation. When faced with a congressional request for information that is deemed privileged, the President may have to weigh the price of sacrificing an executive privilege by providing the information sought against the risk that the nominee may not be confirmed. The failed nomination of Miguel Estrada to the D.C. Circuit Court of Appeals in 2002 is a case in point. Senate Democrats, asserting an inability to evaluate his fitness and qualification for the office because of the sparsity of his public writings, requested access to all his memoranda dealing with appeal, certiorari or amicus recommendations during the five years he was an attorney in the Solicitor Generals' Office. The Administration refused to comply.

During the confirmation hearing, two Senators presented for the record evidence of seven instances in which prior Administrations had provided requested documents for nominees related to prior service in the Department of Justice (DOJ) which were claimed to be analogous to those being sought about Estrada. They involved the nominations Judge Frank Easterbook to the Seventh Circuit, Judge Robert Bork and Chief Justice William Rehnquist to the Supreme Court, Benjamin Civiletti to be Attorney General, William Bradford Reynolds to be Associate Attorney General, Judge Stephen Trott to the Ninth Circuit, and Jeffrey Holmes to be Assistant Administrator at the Environmental Protection Agency.

In a response from the DOJ Office of Legislative Affairs (DOJ-OLA), dated October 8, 2002, it was contended that disclosure of the memoranda demanded, which were asserted to be confidential and privileged, would have the effect of "undermin[ing] the integrity of the decisionmaking process" of the Solicitor General's Office (SG). This claim was said to be supported by the statements of seven past Solicitors General; by the fact that none of the 67 court of appeals nominees since 1977 who had worked at the SG's office had ever been asked for similar memoranda; by the fact that none of the seven cited instances of disclosure involved appeal, certiorari on amicus recommendation documents or other internal SG deliberation memoranda; and because the deliberative nature of the documents sought had been recognized by the courts as authority for the Executive to protect the integrity of such materials which would reveal advisory opinions, recommendations, and deliberations comprising part of a process by which government policies are formulated.

The memo asserted that "as a matter of law and tradition, these privileges can be overcome only when Congress establishes a 'demonstrably critical' need for the requested information," citing Senate Select Committee v. Nixon . The memo concluded with the further assertion that "the existence of a few isolated examples where the Executive Branch on occasion has accommodated a Committee's targeted requests for very specific information does not in any way alter the fundamental and long-standing principle that memoranda from the Office of the Solicitor General –and deliberative Department of Justice materials more broadly–must remain protected in the confirmation context so as to maintain the integrity of the Executive Branch's decisionmaking process." President Bush never claimed executive privilege with respect Estrada's SG memos, as did President Nixon with the Kleindienst nomination and President Reagan with the Rehnquist nomination, and in the end allowed Estrada to withdraw in the face of a threat of a filibuster.

The Kleindienst, Rehnquist, Bork and Trott nominations, dismissed as irrelevant by the DOJ-OLA memo, are nevertheless instructive. Kleindienst's nomination to be Attorney General was on the brink of approval when a newspaper article accused him by lying about his connection with a corrupt deal to settle an antitrust case. A special hearing was conducted at which the Committee received conflicting accounts as to whether a White House aide had been involved in the settlement talks. The White House Counsel, John Dean, claimed executive privilege to prevent the aide's testimony. Senator Sam Ervin threatened to filibuster Kleindienst's nomination if the aide was not produced. The threat led to an agreement for the aide's testimony and Kleindienst was confirmed. A year later Kleindienst resigned during the Watergate affair and later pled guilty to a misdemeanor charge for lying at his confirmation hearing about President Nixon's intervention in the corrupt settlement of the antitrust case.

During the confirmation proceeding for the elevation of Justice Rehnquist to be Chief Justice, the Judiciary Committee sought documents that he had authored on controversial subjects when he headed DOJ's Office of Legal Counsel. President Reagan asserted executive privilege, claiming the need to protect the candor and confidentiality of the legal advice submitted to Presidents and their assistants. But with opponents of Rehnquist gearing up to issue a subpoena, the nomination of not only Rehnquist but that of Antonin Scalia to be an Associate Justice, whose nominations were to be voted on in tandem, were in jeopardy. President Reagan agreed to allow the Committee access to a smaller number of documents, and Rehnquist and Scalia were ultimately confirmed.

The DOJ-OLA memo correctly states that the documents sought during the Trott nomination had nothing to do with his work. Two Senators used his nomination as a vehicle to gain access to a report prepared by DOJ's Public Integrity Section regarding a recommendation to Attorney General Meese that he seek appointment of an independent counsel to investigate the activities of a former Ambassador. Meese did not seek the appointment and refused the Senators' requests for the report on the ground of DOJ's "longstanding policy" not to allow access to internal deliberative memoranda. It soon became clear that the Trott nomination would be held up indefinitely unless the Department yielded, which it did, and the Senators' hold was ended.

The DOJ-OLA memorandum appears to understate the nature and scope of the documents disclosed in Judge Robert Bork's nomination hearing. [author name scrubbed] describes the Justice Department's understanding of the sensitive nature of documents turned over:

The Justice Department gave Biden the documents. Some were forwarded, such as memos from the Solicitor General's office on the pocket veto issue. Others, under seal by order of a federal district court, had to be unsealed and supplied to the committee. A few were converted to redacted versions (deleting a few sentences of classified material) or in unclassified form. The Department explained that "the vast majority of the documents you have requested reflect or disclose purely internal deliberations within the Executive Branch, the work product of attorneys in connection with government litigation or confidential legal advice received from or provided to client agencies within the Executive Branch." Releasing such materials "seriously impairs the deliberative process within the Executive Branch, our ability to represent the government in litigation and our relationship with other entities." Yet the department waived those considerations "to cooperate to the fullest extent possible with the Committee and to expedite Judge Bork's confirmation process...." When the Senate Judiciary Committee issued its report on Judge Bork's nomination, it included a fifteen-page memo that he wrote as Solicitor General on the constitutionality and policy considerations of the President's pocket veto power.

The patterns observed in the engagement and resolution of information access disputes between congressional investigative committees and DOJ are analogous, pertinent, and, in every respect but one, indistinguishable from access disputes occurring during the Senate confirmation process for judicial and DOJ nominations. Experience has shown that the investigative disputes are often resolved on the perceived legitimacy of each branch's claim based on past practice. Although the accommodation process between Congress and the Executive Branch is conducted in a highly political atmosphere, the arguments made by each side are usually grounded in legal doctrine and rely heavily on their interpretations and past experiences. At times, the Executive Branch is able to persuade Congress that a particular request is insufficiently weighty, sometimes based on the representations that the particular information being sought has never before been provided to Congress. The resolution in such cases is to allow executive briefing, limited access to redacted documents, or no access.

But where the perceived need for the withheld documents or testimony is great (which often means politically important), Congress's reaction to withholding on such grounds is often to conclude that if the agency has produced such information (or its equivalent) before, it can produce it again, and that resistance must be based on a desire to cover up something that Congress would clearly want to see. In a series of investigations outside the nomination context (particularly during the investigations of the Clinton Administration), congressional committees built on succeeding acquiescences, together with threats of contempt of Congress votes, to force DOJ to disclose documents, at least in some form. The disclosure during the campaign finance investigations of the Freeh and La Bella memos to Senate and House committees after bitter and assertive Executive withholdings, is agreed to have been a significant event in the history of such confrontations that put the Executive in a difficult position for future attempts to withhold internal DOJ deliberative document in open cases.

This shortly came to be realized in the confrontation over subpoenaed DOJ documents said to reflect ongoing corruption over a period of 30 years in the FBI's Boston regional office. That confrontation involved the agency's knowing acquiescence in the giving of perjured testimony by undercover informers which resulted in the conviction and imprisonment of four innocent persons for murder committed by the informants, as well as the further knowledgeable acquiescence in at least 21 further murders over the next 29 years by the informants. President Bush claimed executive privilege to prevent disclosure of the documents, asserting in his written claim the broadest immunity for internal DOJ deliberative documents. The President ordered the release of the documents after the pubic hearing when it became apparent that the Committee had a bipartisan majority to sustain a contempt vote in the Committee and on the House floor.

The investigative experiences are compelling but distinguishable from the confirmation context. The distinguishing factor, however, appears to favor those seeking disclosure of a nominee's writings or communications. In the investigative context the ability of a committee to force compliance rests on its apparent ability to muster majorities at the full committee and House floor levels as well as some public support for such an executive rebuke. In the Senate confirmation process much less is currently needed. If 41 votes can be mustered and maintained to prevent a cut-off of debate on a nomination, the Executive will be put to the choice of abandoning the nominee or compromising in some way on the disclosure of the documents. As the Rehnquist and Kleindienst experiences demonstrate, even a presidential claim of privilege will not suffice if there is a determined majority (or minority) and the President decides he must have the nominee.

Perhaps one other element is needed: the credibility of the claim of need for the documents and whether in the past analogous documents have been disclosed. This is not a question of legally binding precedent as in the adversarial litigation context. It is simply a credible past experience in a political context. The key distinguishing factor, then, is the confirmation context itself. The President does not have the leverage he has in the investigative context. There he can force majority votes in committees and on the floor, and even if a contempt citation is voted against an executive official, the likelihood of an indictment being sought by a U.S. Attorney is negligible. The only wild card is the degree, if any, of political damage the President perceives he could sustain by his withholding action. That appears to explain most of the disclosures in the investigative context. Currently, in a Senate confirmation proceeding, a minority may prevail if it can sustain 41 votes. Experience has shown that if the President cannot bring political or public pressure to bear, and wants the nomination, he will have to effect some disclosure compromise or abandon the nominee.

IV. Judicial Discipline

It is not clear if Congress has authority to investigate and punish judges' behavior outside of the impeachment process. Beginning in 1930, it was urged in scholarly writings and in congressional debates that an alternative to removal by impeachment could be discerned in the impeachment section of Article II and in the judiciary article of Article III. Although proposed from time to time Congress never adopted such a proposition. However, Congress did address judicial discipline authority within the Judicial Branch. The first federal statutory judicial discipline procedures were enacted in the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980. Congressional oversight over this process might provide a basis for investigation of a particular judge or Justice.

For instance, if a complaint alleges conduct that may rise to the level of impeachable offenses, then the Judicial Conference can refer the matter to the House of Representatives for whatever action the House deems appropriate. An argument can be made that these judicial discipline proceedings can serve as the basis for judicial impeachment thus further providing a basis for Congress to oversee the process. Under the former 28 U.S.C. § 372(c) procedure, in 1986, 1988 and 1989, the Judicial Conference of the United States transmitted to the House of Representatives certifications of a judicial council and of the Judicial Conference to the effect that Judge Harry Claiborne, Judge Alcee Hastings and Judge Walter Nixon, Jr., respectively, may have engaged in conduct that might be considered grounds for impeachment. Judges Claiborne and Nixon had been previously convicted of felony charges, while Judge Hastings had been acquitted. The National Commission on Judicial Discipline and Removal observed that the certifications with respect to the two judges who had prior criminal convictions:

were only a formality. Congress implicitly acknowledged as much in a 1990 amendment that permits the Judicial Conference to initiate and transmit such a determination on the basis of the criminal record. In the matter of Judge Hastings, however, the exhaustive investigation by a special committee and subsequent report and certification by the judicial council—coming as they did after the acquittal of Hastings on criminal charges—were undoubtedly critical to the House's willingness to proceed.

In each instance, the House voted articles of impeachment, and the Senate convicted the judge after an impeachment trial and removed the judge from office.

The current judicial discipline law was enacted as the Judicial Improvements Act of 2002. The new judicial discipline procedures are available to anyone, including a Member of Congress, who deems it appropriate to file a complaint against a federal district court, judge of a U.S. circuit court of appeals, bankruptcy judge, or magistrate judge.

In 1999 a public interest group and a Member of Congress used the judicial discipline mechanism in the former 28 U.S.C. § 372(c) to investigate allegations of judicial misconduct. Complaints were filed against the chief judge of the United States District Court of the District of Columbia, Norma Holloway Johnson, alleging that she had engaged in "prejudicial" conduct in assigning "highly-charged criminal cases" concerning individuals with "close ties to the President, the White House and the Clinton Administration" to district court judges appointed by President Clinton, thereby bypassing the district court's random assignment rules.

The initial complaint, filed by Judicial Watch, Inc., a public interest group, on August 30, 1999, charged that Judge Johnson had improperly bypassed the normal random case assignment system, established by Local Criminal Rule 57.10 (a), to send a tax evasion case against Webster L. Hubbell and a campaign financing case against Charlie Trie to recent judicial appointees of President Clinton. The Chief Judge used a provision of the rule which allowed her to deviate from the random assignment requirement and send a case to a particular judge if she determined that "at the time an indictment is returned that the case will be protracted and that the expeditious and efficient disposition of the court's business requires assignment of the case on a non-random basis."

On November 17, 1999, Acting Chief Judge Stephen Williams dismissed the complaint as "frivolous." Judicial Watch petitioned for review of the dismissal on December 17, 1999. On January 10, 2000, Representative Howard Coble, Chairman of the House Judiciary Committee's Subcommittee on Courts and Intellectual Property, filed a letter in support of reconsideration detailing further instances of alleged improper assignments by the Chief Judge. On February 9, 2000, in response to Chairman Coble's letter, the Judicial Council ordered the reconsideration of that part of the Judicial Watch allegation dealing with case assignments and a determination whether a special committee should be appointed to investigate the matter. On February 16, 2000, Chairman Coble filed a formal complaint against Chief Judge Johnson with respect to assignments in several campaign finance cases. On March 14, 2000, Acting Chief Judge Williams authorized the Special Committee of the Judicial Council to investigate the complaints, and thereafter the Special Committee retained Joe D. Whitley as counsel to conduct the investigation.

After an extensive review and investigation of nine questioned assignments—two from the office of Independent Counsel involving Webster Hubbell, and seven from the Justice Department's Campaign Financing Task Force, the Counsel reported that they had not found, with respect to any case, evidence that Chief Judge Johnson's purpose included a political intent to advance the interests of President Clinton, the Clinton Administration or the White House, a conclusion that was adopted after review by the Special Committee to the Judicial Counsel. The findings and conclusions of the Report of the Special Committee were affirmed in a memorandum opinion by the Judicial Council on February 26, 2001, which dismissed the complaints.

While the proceeding did not result in any disciplinary action being taken against the Chief Judge, it had (1) the appearance of thoroughly and publically ventilating the serious charges brought against the judge and (2) supplied the impetus for the repeal of Local Criminal Rule 57.10 (c) which, since 1971, had authorized chief judges of the district court to deviate from the random assignment requirement. A chief judge no longer has authority to specially assign cases. It also demonstrated that a well founded official complaint by the House Judiciary Committee can trigger the statutory judicial discipline mechanism.

V. Impeachment

Another circumstance under which Congress could exercise its oversight authority over individual judges or Justices would be in anticipation of or during impeachment proceedings. Federal judges are among those "civil Officers of the United States" who can be impeached for engaging in conduct amounting to treason, bribery, or other high crimes and misdemeanors. Impeachment, however, is a cumbersome process, which takes time and resources away from other legislative business. But, as has been indicated above, while use of compulsory process against a sitting judge outside the impeachment process is rare and legally problematic, the issuance of subpoenas during the impeachment process, including against judges, has become more common and acceptable. Indeed, the failure to comply with subpoenas during an impeachment inquiry could result in an independent article of impeachment.

Moreover, Federal Rule of Criminal Procedure 6(e)(3)(c)(i) authorizes a court to make disclosures "preliminary to or in connection with a judicial proceeding." Consistently, and without an exception that we are aware of, the courts have held that a House investigation preliminary to impeachment is a judicial proceeding within the scope of the exception to the Rule. Indeed, courts have held that investigations conducted by committees of judicial councils pursuant to the Judicial Councils Reform and Judicial Conduct and Disability Act, as amended, are within the exception and have granted access to grand jury material. In addition, in at least four instances the House has directly requested and received grand jury materials in impeachment proceedings.

The case law with respect to what a congressional committee may do with 6(e) material released by a court, while sparse, is unequivocal: a committee is free to do with it as it will, as long as it complies with the rules of the House with respect to dissemination. The courts have conceded that they are powerless to place restrictions on the use of the material once it is in hands of a committee.

There have been a total of eleven judges who have been the focus of impeachment trials; of those eleven, seven were convicted on impeachment and removed from office. The judges impeached by the House and tried by the Senate in the first eight impeachment proceedings were: John Pickering, District Judge for the United States District Court for the District of New Hampshire (1803-04); Samuel Chase, Associate Justice of the United States Supreme Court (1804-05); James H. Peck, District Judge for the United States District Court for the District of Missouri (1826-31); West H. Humphreys, District Judge for the United States District Court for the District of Tennessee (1862); Charles Swayne, District Judge for the United States District Court for the Northern District of Florida (1903-05); Robert W. Archbald, Circuit Judge, United States Court of Appeals for the Third Circuit, serving as Associate Judge for the United States Commerce Court (1912-13); Harold Louderback, District Judge, United States District Court for the Northern District of California (1932-33); and Halsted Ritter, District Judge of the United States District Court for the Southern District of Florida (1936).

In the three most recent judicial impeachments, investigations under the former 28 U.S.C. § 372(c) judicial discipline provisions resulted in referrals of the cases by the Judicial Conference of the United States to the House of Representatives for the House to determine whether or not impeachment might be appropriate. Judge Harry E. Claiborne, United States District Judge for the District of Nevada, was impeached, tried in the Senate, and convicted in 1986. In the case of Judge Hastings, the impeachment investigation and proceedings spanned parts of 1988 and 1989. The most recent judicial impeachment, that of Judge Walter L. Nixon, Jr., United States District Judge for the Southern District of Mississippi, took place in 1989.

The power to determine whether impeachment is appropriate in a given instance rests solely with the House of Representatives. Thus, investigations preliminary and attendant to impeachments carry some of the broadest authorities to investigate the activities of individual judges or Justices. An impeachment process may be triggered in a number of ways, including charges made on the floor by a Member or Delegate; charges preferred by a memorial from the same, usually referred to a committee for examination; a resolution dropped in the hopper by a Member and referred to a committee; a message from the President; charges transmitted from the legislature of a state or territory or from a grand jury; facts explored and reported by a House investigating committee; or a suggestion from the Judicial Conference of the United States, that the House may wish to consider whether impeachment of a particular federal judge would be appropriate.

The Senate also has a unique role to play in the impeachment process, as it has the authority and responsibility to try an impeachment brought by the House. In addition, should an individual be convicted on any of the articles, the Senate must determine the appropriate judgment: either removal from office alone, or, alternatively, removal and disqualification from holding further offices of "honor, Trust or Profit under the United States."

For either body to base an investigation on the potential impeachment of a judge or Justice, it would appear that an impeachable offense would need to be at issue. However, what constitutes an impeachable offense has been the topic of considerable debate. Neither the Federalist Papers , nor the debates in the Constitutional Convention, nor the state ratifying conventions give us particular guidance on the standards to be applied to judicial impeachments beyond the constitutional language in Article II, Sec. 4 of the U.S. Constitution.

Conviction through the impeachment process for "Treason, Bribery, or other high Crimes and Misdemeanors" is the constitutional standard for removal of a President, Vice President, or other civil officers of the United States. Treason is defined both in statute and in the Constitution. Bribery, while not defined in the Constitution, was an offense at common law, has been a statutory offense since the First Congress enacted the Act of April 30, 1790, and is now codified at 18 U.S.C. § 201. Thus, treason and bribery may be fairly clear as to their meanings, but the remainder of the language has been the subject of considerable debate.

The phrase "high crimes and misdemeanors" is not defined in the Constitution or in statute. It was used in many of the English impeachments, which were proceedings in which criminal sanctions could be imposed upon conviction. No definitive list of types of conduct falling within the "high crimes and misdemeanors" language has been forthcoming as a result of this debate, but some measure of clarification has emerged.

The debate on impeachable offenses during the Constitutional Convention in 1787 indicates that criminal conduct was at least part of what was included in the "treason, bribery, or other high crimes and misdemeanors" language. However, the precedents in this country reflect the fact that conduct which may not constitute a crime, but which may still be serious misbehavior bringing disrepute upon the public office involved, may provide a sufficient ground for impeachment.

For example, Judge John Pickering was convicted on all four of the articles of impeachment brought against him, including charges that he mishandled a case before him in violation federal laws and procedures. The alleged misconduct included (1) delivering a ship which was the subject of a condemnation proceeding for violation of customs laws to the claimant without requiring bond to be posted after the ship had been attached by the marshal; (2) refusing to hear some of the testimony offered by the United States in that case; and (3) refusing to grant the United States an appeal despite the fact that the United States was entitled to an appeal as a matter of right under federal law. However, it should also be noted that the fourth article against him alleged that he appeared on the bench in an intemperate and intoxicated state.

In another example, Judge Halsted Ritter was acquitted of six of the seven articles brought against him. He was, however, convicted on the seventh which summarized or listed the first six articles. The factual allegations upon which the seventh article was based included assertions that Ritter, while a federal judge, accepted large fees and gratuities and engaged in income tax evasion. However, the basis of the seventh article was that the "reasonable and probable consequences of the actions or conduct" involved therein were "to bring his court into scandal and disrepute, to the prejudice of said court and public confidence in the Federal judiciary, and to render him unfit to continue to serve as such judge." This article was challenged unsuccessfully on a point of order, arguing that article VII merely repeated and combined facts, circumstances and charges from the preceding six articles. The President Pro Tempore ruled that article VII involved a separate charge of "general misbehavior," which it would appear was a charge going beyond the criminality of the behaviour alleged in previous articles.

The House Judiciary Committee, in recommending articles of impeachment against President Richard Nixon in 1974, appears to have premised those articles on the theory that President Nixon abused the powers of his office, causing "injury to the confidence of the nation and great prejudice to the cause of law and justice," and resulting in subversion of constitutional government; that he failed to carry out his constitutional obligation to faithfully execute the laws; and that he failed to comply with congressional subpoenas needed to provide relevant evidence for the impeachment investigation.

The minority of the House Committee on the Judiciary in the report recommending that President Nixon be impeached took the view that errors in the administration of his office were not sufficient grounds for impeachment of the President or any other civil officer of the United States. The minority views seem to suggest that, under their interpretation of "high crimes and misdemeanors," crimes or actions with criminal intent must be the basis of an impeachment.

Impeachment charges were brought against President Andrew Johnson involving allegations of actions in violation of the Tenure of Office Act, including removing Secretary of War Stanton and replacing him with Secretary of War Thomas and other related actions. Two of the articles brought against the President asserted that he sought to set aside the rightful authority of Congress and to bring it into reproach, disrepute and contempt by "harangues" criticizing the Congress and questioning its legislative authority.

President Johnson was acquitted on those articles upon which votes were taken. Another Executive Branch officer to go to trial on articles of impeachment was Secretary of War Belknap. The articles alleged that he, in an exercise of his authority as Secretary of War, appointed John Evans to maintain a trading post at Fort Sill, and allowed Evans to continue in that position, as part of an arrangement which provided Belknap personal gain. The arrangement allegedly provided that Evans would pay $12,000 annually from the profits of the trading post to a third party who would, in turn, pay Belknap $6,000 annually. Belknap resigned before the Senate trial on his impeachment and was not convicted on any of these articles.

It has been suggested that the impeachment provisions and the "good behaviour" language of the judicial tenure provision in Article III, Section 1, of the Constitution should be read in conjunction with one another. Whether this would serve to differentiate impeachable offenses for judicial officers from those which would apply to civil officers in the Executive Branch is not altogether clear. During the impeachment investigation of Justice Douglas in the 91 st Congress, Representative Paul McCloskey, Jr., reading the impeachment and good behavior provisions in tandem, contended that a federal judge could be impeached for either improper judicial conduct or non-judicial conduct amounting to a criminal offense. Then Minority Leader Gerald Ford inserted in the Congressional Record a memorandum taking the position that impeachable misbehavior by a judge involved proven conduct, "either in the administration of justice or in his personal behavior," which casts doubt on his personal integrity and thereby on the integrity of the entire judiciary.

During the Douglas impeachment debate, Representative Frank Thompson, Jr., argued that historically federal judges had only been impeached for misconduct that was both criminal in nature and related to their judicial functions, and that such a construction of the constitutional authority was necessary to maintaining an independent Judiciary. In the Final Report by the Special Subcommittee on H.Res. 920 of the Committee on the Judiciary of the House of Representatives , 91 st Cong., 2d Sess. (Comm. Print, Sept. 17, 1970), as cited in 3 Deschler ' s ch. 14, § 3.13, the Subcommittee suggested two "concepts" related to this question for the Committee to consider. These concepts shared some common ground. As the Subcommittee observed:

Both concepts would allow a judge to be impeached for acts which occur in the exercise of judicial office that (1) involved criminal conduct in violation of law, or (2) that involved serious dereliction from public duty, but not necessarily in violation of positive statutory law or forbidden by the common law. Sloth, drunkenness on the bench, or unwarranted and unreasonable impartiality [sic] manifest for a prolonged period are examples of misconduct, not necessarily criminal in nature, that would support impeachment. When such misbehavior occurs in connection with the federal office, actual criminal conduct should not be a requisite to impeachment of a judge or any other federal official. While such conduct need not be criminal, it nonetheless must be sufficiently serious to be offenses against good morals and injurious to the social body.

Both concepts would allow a judge to be impeached for conduct not connected with the duties and responsibilities of the judicial office which involve [sic] criminal acts in violation of law.

Thus it would appear that this common ground represented those general principles which the Subcommittee deemed fundamental to conduct upon which impeachment of a federal judge could be based.

This review of some of the precedents on the question of what constitutes an impeachable offense suggests that the answer to this question is less than clear. Criminal conduct appears to be a sufficient ground, whether the person involved is a judge or a member of the Executive Branch. Where the person to be impeached is the President or an executive officer, conduct having criminal intent, serious abuses of the power of the office involved, failure to carry out the duties of that office, and, possibly, interference with the Congress in an impeachment investigation of the President or other executive official may be enough to support an article of impeachment. As to federal judges, the impeachment language might be read in light of the constitutional language providing that they serve during good behavior. With this in mind, a judge might be vulnerable to impeachment, not only for criminal conduct, but also for improper judicial conduct involving a serious dereliction of duty; placing the judge, the court, or the Judiciary in disrepute; or casting doubt upon his integrity and the integrity of the Judiciary.

VI. Other Investigatory Contexts

The question arises as to whether the Congress has authority to investigate individual judges or Justice without reference to either a judicial nomination, an impeachment, or judicial discipline. On January 12, 2004, in United States v. Mendoza , a federal district court in California considered a constitutional challenge to the Feeney Amendment to the "Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003" (PROTECT) Act, which provides reporting requirements on the judicial decisions of individual federal district court judges. In Mendoza , the court found that the requirement that the United States Attorney General report a district court's grant of a downward departure under the United States Sentencing guidelines to the House Judiciary Committee and the Senate Judiciary Committee was an unconstitutional interference with judicial independence and a violation of separation of powers.

The doctrine of separation of powers is not found in the text of the Constitution, but has been discerned by courts, scholars and others in the allocation of power in the first three Articles, i.e., the "legislative power" is vested in Congress, the "executive power" is vested in the President, and the "judicial power" is vested in the Supreme Court and the inferior federal courts. That interpretation is also consistent with the speeches and writings of the framers. But while the rhetoric of the Supreme Court points to a strict separation of the three powers, its actual holdings are far less decisive. Nevertheless, beginning with Buckley v. Valeo , the Supreme Court has reemphasized separation of powers as a vital element in American federal government.

The federal courts have long held that the Congress may not act to denigrate the authority of the Judicial Branch. In the 1782 decision in Hayburn ' s Case , several Justices objected to a congressional enactment that authorized the federal courts to hear claims for disability pensions for veterans. The courts were to certify their decisions to the Secretary of War, who was authorized either to award each pension or to refuse it if he determined the award was an "imposition or mistaken." The Justices on circuit contended that the law was unconstitutional because the judicial power was committed to a separate department and because the subjecting of a court's opinion to revision or control by an officer of the Executive or the Legislative Branch was not authorized by the Constitution. Congress thereupon repealed the objectionable features of the statute. More recently, the doctrine of separation of powers has been applied to prevent Congress from vesting jurisdiction over common-law bankruptcy claims in non-Article III courts.

The Mendoza decision did not deny the authority of the Congress to require the Judiciary to provide reports regarding the administration of the court's federal criminal law docket. Although criminal sentencing is traditionally left to the discretion of judges, the United States Sentencing Commission was established by Congress to limit this discretion by regularizing sentencing procedures. Thus, for the last 15 years, sentencing in federal courts has been governed by a regime promulgated by the Commission, the United States Sentencing Guidelines. During this time, Congress has passed numerous laws providing for review, promulgation, or amendment of federal sentencing guidelines applicable to particular offenses. In addition, the Supreme Court has recently held that, to the extent that the Guidelines increase the penalty for a crime based on factors not submitted to a jury, that the guidelines are only advisory, not mandatory. Thus, Congress would seem to have a significant basis for oversight over the operation of the guidelines.

The Mendoza court also upheld other portions of the PROTECT Act. The PROTECT ACT was a response to concerns over the frequency and magnitude of downward departures, and dealt not just with the guidelines but with the structure of the Sentencing Commission. With respect to certain types of cases where the offenses involved child victims or sexual offenses, both the United States Code and the U.S. Sentencing Guideline were amended to restrict downward departures to only those instances where such departures are explicitly authorized. However, Title IV of the PROTECT Act also revised reporting requirements for the sentencing court and for the Attorney General to require the court to increase the specificity of the order regarding downward departures. The Act requires the sentencing court to provide a transcript of the court's statement of reasons, together with the order of judgment and commitment, to the Probation System and to the Sentencing Commission, and, if the sentence includes a term of imprisonment, to the Bureau of Prisons.

However, as noted above, the Act also requires that in certain cases, the Attorney General must report a district court's grant of a downward departure to the House Judiciary Committee and the Senate Judiciary Committee. The report must specify the case; the facts involved; the identity of the district court judge; the district court's stated reasons, whether or not the court provided the United States with advance notice of its intention to depart; and the position of the parties with respect to the downward departure, whether or not the Government has filed, or intends to file a motion for reconsideration.

It is these last provisions that were ultimately struck down by the Mendoza court. In doing so, the court stated that:

This Court agrees with Defendant's analysis and concludes that [the reporting provision] chills and stifles judicial independence to the extent that it is constitutionally prohibited. The chilling effect resulting from such reporting requirements is sufficient to violate the separation of powers limitations of the United States Constitution.

The Court also noted that

What criteria is relevant for a separation of powers analysis is the "practical consequences" of the provision, or provisions, in question. Mistretta v. United States, 488 U.S. 361, 393, 102 L. Ed. 2d 714, 109 S. Ct. 647 (1989) (quoting Commodity Futures Trading Commission v. Schor, 478 U.S. 833, 857, 92 L. Ed. 2d 675, 106 S. Ct. 3245 (1986); Nixon v. Fitzgerald, 457 U.S. 731, 753, 73 L. Ed. 2d 349, 102 S. Ct. 2690 (1982)). The provision of the statute in question affects the relationship between the political branches to such an extent that it interferes with the Judiciary's independence from those of the Legislative and Executive Branches of the government. The specific provisions of the statute in question do not on its face give, or purport to give, either the Executive or Legislative branch any direct coercive power over the Judiciary for their judicial acts, but the threat, real or apparent, is blatantly present. There is no legitimate purpose served by reporting individual judges's performance to Congress. Congress does not have any direct oversight of the Judiciary.

Although it is not clear whether the Mendoza decision will be upheld, the opinion articulates the proposition that there are limits to congressional oversight authority.

VII. Conclusion

Congress has a wide range of oversight tools available with respect to the Judicial Branch. However, the ability of the Congress to use these tools to investigate individual judges or Justices may be more limited. While these tools can be exercised in a variety of contexts, including nominations, judicial discipline, and impeachment, their use outside of these contexts has been relatively rare, and questions have been raised as to whether such exercise of congressional oversight could give rise to a violation of the doctrine of separation of powers.