Report from Governmental Affairs

A Firm Stand

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Two longtime congressional critics of the federal judiciary’s accountability are pushing legislation that would create an office of inspector general authorized to investigate possible misconduct by judges and oversee other aspects of judicial branch operations.

House Judiciary Committee Chairman F. James Sensenbrenner Jr., R-Wis., and Senate Judiciary Committee member Charles E. Grassley, R-Iowa, introduced the legislation earlier this year to address what they described as the judicial branch’s lack of effort in recent years to police the behavior of individual judges. In particular, they cited violations of ethics rules and failure by judges to make proper disclosures for expense-paid travel.

The association is pushing back against the legislation. The ABA’s position, adopted in August by the House of Delegates, is that creating an office of inspector general for the federal judiciary is unneeded and a threat to the constitutional separation of powers. At the same time, the ABA has applauded recent efforts of the U.S. Judicial Conference to respond to concerns about judicial conduct. Those steps include a comprehensive review of its policies on ethics obligations of judges, adoption of a new policy imposing more thorough administrative and reporting requirements on judges who want to attend nongovernmental educational seminars, additional ethics training for judges, and mandatory use of the conflict-checking computer software available to federal judges. In September, a committee appointed by Chief Justice John G. Roberts Jr. and chaired by Justice Stephen G. Breyer released a report finding no serious problem with the judiciary’s handling of the bulk of complaints filed under the Judicial Conduct and Disability Act of 1980. The act established procedures giving the federal circuits primary responsibility in dealing with judicial discipline.

Threats to Judiciary Remain

The House Judiciary Committee acknowledged at least some concerns about the proposed legislation when it approved a substitute bill in September. (The Senate Judiciary Committee did not act on its bill before Congress recessed for the fall.)

Like the original bill, the substitute would require the U.S. chief justice, after consultation with congressional leaders, to appoint an inspector general with jurisdiction over all federal courts except the U.S. Supreme Court. He or she would be charged with investigating possible misconduct of judges; conducting and supervising audits to detect waste, fraud and abuse in the judiciary’s budget (now $6 billion); and recommending changes in laws or regulations governing the judicial branch. The inspector general’s powers would include subpoena authority over people and documents, enforceable by civil action.

But unlike the original version of the legislation, the substitute bill would explicitly prohibit the inspector general from investigating or reviewing the merits of judicial decisions. The substitute also would limit the inspector general’s investigatory authority over judicial misconduct to allegations made under the Judicial Conduct and Disability Act, and only after those allegations have been reviewed within the judiciary.

The ABA, however, opposes any proposals to create an office of inspector general for the federal judiciary that follow the general contour of the bills in Congress.

“The establishment of a judicial branch inspector general would be a frontal assault on one of the core missions of the ABA: to preserve the independence of the judiciary,” says Lawrence J. Fox of Philadelphia, who introduced the recommendation in the House of Delegates for the Standing Committee on Federal Judicial Improvements and five co-sponsors. “Which is not to say the judiciary gets a free pass on judicial conduct, but rather that any discipline of judges must be by the judges themselves—not under the supervision of elected representatives.”


This column is written by the ABA Governmental Affairs Office and discusses advocacy efforts by the ABA relating to issues being addressed by Congress and the executive branch of the federal government.

Rhonda McMillion is editor of Washington Letter, an ABA Governmental Affairs Office publication.

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