It’s long, long, LONG past time for Congress to restructure the Judicial Misconduct Complaint mechanism so that it’s no longer a comically flagrant sham designed and controlled completely by members of the federal judiciary. Really. It’s long, long, long, long past time.
Yes, folks. This really is what happened.
And were that not such a high-profile matter because the conduct at issue occurred very publicly and was reported in the news media, the misconduct-complaint process never would have gotten beyond the mechanical first step.
I’ve mentioned before here at AB that every time there is a movement in Congress to revamp what is now an extremely silly setup—most recently about a decade or so ago, pushed mainly by Wisconsin Republican Congressman James Sensenbrenner*, who at the time was chairman of the Judiciary Committee, but which was a bipartisan effort—the Supreme Court justices cry: “Oh, my! The loss of judicial independence! Oh, no!”. Surprise! Works every time!
The Sensenbrenner proposal would have done exactly what is needed: revamped the system to remove it from the ludicrous control of the judges’ immediate colleagues, and would have included the establishment of an independent Office of Inspector General, albeit one that would be a part of the Judicial Branch, similar to the ones for the Executive Branch.
Sensenbrenner’s still in Congress and still a member of the Judiciary Committee. In the Senate, there are a few members who probably would be interested in pushing this, too—including, maybe, Rand Paul.
*Post originally called him “John Sensenbrenner”. Corrected 10/16 at 12:46 p.m.
UPDATE: Anyone who’s interested in this issue, please read this article published today online by the National Law Journal, about what happened procedurally in that case.
The law at issue, whose purpose and effect is to conceal judicial misconduct, including, regarding one prominent (within national legal circles, but not among the general public) federal appellate judge**, overt illegality that included falsifying court documents (specifically, falsifying the names of two judges on two series of court orders in related cases) and, years later, having the chief deputy clerk of his court contact a district judge in another region of the country and arrange for the district judge to dismiss a lawsuit that would have publicly revealed what had occurred in the earlier case. The district judge, incredibly, made a reference to this in his dismissal order. When a misconduct complaint was filed against the district judge, the chief judge of that judge’s appellate circuit—the person charged in the statute with investigating (or not)–ignored the complaint for exactly three years, and then dismissed it on the basis that the district judge had said in an order responding to a motion expressing dismay at the revelation that he had learned the information at issue from a court clerk. The document filed in stunned response to that—and was the very next-listed filing on the case’s docket page—shows from the docket page itself that for that to be true, the judge would have to have been clairvoyant. The document that would have provided the information was not filed and docketed until after the judge issued his order revealing the bizarre ex parte communication; this is reflected, clearly, unequivocally, on the electronic docket page itself.** No matter, of course.
Fairly early on regarding the initial series of falsified court orders, the FBI was provided with enough evidence of what had occurred that it initiated the preliminaries for an investigation, but shortly afterward the FBI’s Public Integrity Unit in that regional office and around the country were cut dramatically when most of the assigned agents (including the one in this matter, who was transferred to another region) were reassigned to antiterrorism units as considered necessary in the wake of 9/11.***
There are other instances I know of in which it somehow is revealed that a court ruling was prompted by an ex parte communication. Again … no matter. Nothing ever matters, because—as the National Law Journal article explains—the process almost always is completely secret. It is routinely, by design, corrupt. It’s a cesspool.****
The title of the National Law Journal article is “Why It Took Months to Reveal Fifth Circuit Misconduct Dismissal.” It’s by Zoe Tillman of The Legal Times.
**Because of the very serious (and accurate) allegations in that part of this post, I want to make clear that the federal appellate judge I’m referring to is not Richard Posner. Anytime a federal appellate judge is identified as “prominent” but not further identified, people “in the know” presume the reference is to Posner. The reference here is not to Richard Posner. 10/16 at 1:22 p.m.
***Boldfaced portion of sentence added. 10/16 at 1:05 p.m. [This is important stuff, folks–and accurate.]
****Paragraph edited slightly for clarity. 10/16 at 12:53 p.m.