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May 28, 2015

"Do the Supreme Court and other federal courts need a watchdog?"

The question in the title of this post is from the headline of this Lyle Denniston story at Constitution Daily discussing a notable new proposal by Senator Charles Grassley to create an inspector general for the judiciary.  Here are excerpts from the piece: 

Acting within the judicial sphere, the Supreme Court and the lower federal courts are assured of independence by the dual protection of lifetime tenure for the Justices and judges, and the guarantee that they can keep their jobs unless they commit a “high crime or misdemeanor” that would justify their removal by impeachment.

But impeachment is a drastic remedy, and the Constitution deliberately makes it hard to bring about. That gives the Justices and judges, in their day-to-day work, the freedom to regulate their own ethical conduct. Congress has given the judges some rules for when they should not take part in a decision because of a conflict of interest. But the Supreme Court has largely exempted itself from those rules, preferring to impose some self-limiting restraints. And that streak of independence by the Supreme Court from time to time rankles some members of Congress, who would like to do something about it.

The latest idea in Congress to impose some restraint on judicial behavior has just been introduced by the chairman of the Senate Judiciary Committee, Iowa Republican Charles Grassley. His idea is to create the office of “inspector general,” a kind of super watchdog, inside the judicial branch. It works in the Executive Branch, he says, and so there is no reason it should not work in the judiciary, too.

While the senator appears to be most interested in having someone to monitor serious misconduct within the judicial branch, perhaps as a prelude to impeachment, the constitutionally risky part of his proposition is to make this new watchdog a monitor of judicial ethics. That, of course, is part of the title of his new bill, the Judicial Transparency and Ethics Enhancement Act.

As Grassley has fashioned the terms of this office, the watchdog would not be a creature entirely of the judicial branch. The Chief Justice would name the “inspector general,” but the bill specifies that an appointment would only come after “consultation” with the leaders of the Senate and the House. Is that a form of veto power? Or would the Chief Justice be free to ignore any legislative input?

And, on the all-important question of removal of such an appointee from office, the Chief Justice could do so but would be required to give his reasons to both houses of Congress. Is that a sign that Congress would not quite trust the Chief Justice to use that authority?

While the Grassley bill says explicitly that the new “inspector general” would have no power to “investigate or review any matter that is directly related to the merits of a decision or procedural ruling” by any federal court, the officer would have explicit authority to “conduct investigations of alleged misconduct in the Supreme Court that may require oversight or other action” by Congress or by the judiciary itself. (Similar investigative power would exist for lower courts, too.)

That investigative power is not spelled out in the bill, so it presumably would be up to the “inspector general” to define the kind of “misconduct” to be monitored. Would it only be a “high crime or misdemeanor” of the kind sufficient to justify impeachment? Would it have to be criminal behavior? If not either of those, would it be a breach of some ethical principle or norm. and, if so, defined by whom?

Policing ethics is not a process that lends itself to nice precision. What is “good” or “bad” behavior by a judge? The Constitution itself specifies that federal judges may keep their jobs “during good behavior.” But the only constitutional definition of behavior contrary to that is “high crimes and misdemeanors,” in the impeachment provision; it is not further clarified.

May 28, 2015 at 01:39 PM | Permalink

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