March/April 2011:
Proposals Resurface to Create a Judicial Branch Watchdog

Washington Watch | March/April 2011
By Bruce Moyer

Controversial legislative proposals have been reintroduced in the Senate and House to establish an independent office to monitor and investigate the federal courts, including alleged misconduct by federal judges. The Senate and House bills would establish an “Office of Inspector General for the Judicial Branch.”

Similar measures have been introduced in Congress in the past and opposed by the federal judiciary. However, this new Congress—which has shifted both in political control and lawmakers leading judicial oversight—could be more receptive to the creation of an office that oversees the third branch and guards against fraud, waste, and abuse.

The current judicial inspector general (IG) bills (S. 348, H.R. 727) have been introduced by Sen. Chuck Grassley (R-Iowa) and Rep. James Sensenbrenner (R-Wisc.). Both lawmakers have been vigorous critics of the federal judiciary. Grassley has tangled with the Judicial Conference, the policy-making body of the federal courts, over cameras in the courts, courtroom sharing, and courthouse construction costs. Sensenbrenner, who previously served as chair of the House Judiciary Committee, has clashed with the federal judiciary on judicial pay and self-policing by the judiciary over ethical matters.

Both Grassley and Sensenbrenner have jointly introduced judicial IG bills in the Congress since 2006, but without success. Only Sensenbrenner’s bill, when he was judiciary committee chairman, made it out of committee. This year may be a somewhat easier lift. Grassley is now the top Republican on the Senate Judiciary Committee. Sensenbrenner is the number two Republican on the House Judiciary Committee. Current judiciary chair Lamar Smith (R-Texas) signed on as an original cosponsor of Sensenbrenner’s IG bill in 2006.

The Senate and House bills would create an inspector general that operates much like the dozens of statutory IGs who operate throughout the executive branch, carrying out management audits and investigations of potential wrongdoing. IGs must refer all criminal matter to the Justice Department for further action. (Congress has not established an inspector general overseeing its operations, although there is an inspector general of the Library of Congress.) Under the bills, the inspector general for the judicial branch would carry out audits and investigations of potential mismanagement
and wrongdoing in the federal courts.

The IG would conduct audits, requesting testimony and information under threat of subpoena. He or she would be required to provide annual reports to the Chief Justice of the Supreme Court and the Congress about his or her activities. Under the bills, the Chief Justice would appoint the inspector general to a fouryear term, and the IG could be removed by the Chief Justice at any time.

In the past, the federal judiciary has vigorously opposed proposals on Capitol Hill to establish a judicial inspector general, contending that an inspector general’s investigations would intrude upon the independence of the judicial branch. In 2006, Justice Ruth Bader Ginsburg called the notion of judges being investigated by watchdogs “a really scary idea.” To whittle down those concerns, the latest Senate and House bills expressly bar the inspector general from intruding upon the core function of the judiciary—its decision-making. Both bills prohibit the inspector general from reviewing
specific decisions by judges and courts.

There is another important new change in the bills: they would allow an IG investigation into alleged judicial misconduct but not until the judicial branch has conducted its own ethics investigation nder the Judicial Conduct and Disability Act of 1980. Under that law, public complaints over judicial disability or misconduct can be filed against federal judges, triggering an internal review process ivolving local judicial councils and the Judicial Conference. That complaint process does not extend to the review of the conduct of Supreme Court justices, however. Here the Senate and House bills depart in an important respect. The Senate bill would extend IG authority to investigate judicial misconduct over all federal judges, including Supreme Court justices, while the House bill would
extend oversight authority only to federal district and appellate court judges.

In a related recent development, Rep. Christopher Murphy (D-Conn.) announced his intent to introduce legislation to extend the coverage of the Judicial Conduct and Disability Act to justices of the Supreme Court. Murphy’s proposal would subject the justices to the same pubic complaint process, require justices to publicly disclose their reasons when they recuse themselves from a case, and direct the court to establish an outside panel to have the last word on recusals.

Bruce Moyer is government relations counsel for the FBA. © 2011 Bruce Moyer. All rights reserved.

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