Sunshine, said Justice Brandeis, is "a marvelous disinfectant." And with the exception of those obvious instances where disclosure of certain information would compromise national security (e.g., the 'outing' of Valerie Plame), government secrecy is always invoked to protect incompetent and/or corrupt public officials.
A delicious case in point is the outing of Rudy "9/11" Giuliani as an inveterate liar by Village Voice reporters Wayne Barrett and Dan Collins. But you always find out about it at the back end; Giuliani's testimony was supposed to be kept under wraps until after the 2008 elections, so "America's Mayor" could defraud American voters into believing he was an expert on terrorism.
A more bizarre -- if not unprecedented -- instance of inappropriate government secrecy occurred in the federal judiciary, where Reagan appointee Judge Ralph J. Winter of the Second Circuit Court of Appeals chose to refuse to publish public comments on the proposed overhaul of the federal system of judicial discipline.
To not put too fine a spin on it, our nation's system of judicial discipline is a transparent farce. Federal judges pass judgment on fellow judges, and individual complaints are buried under a cloak of secrecy. Such a system is an engraved invitation to abuse; as senior federal district court judge John L. Kane (a Carter appointee) put it,
the current system is a 'kiss your sister' operation that hasn't worked and won't as long as judges are covering one another's butts. The present system is ineffectual and I think that could be demonstrated by the very sorry record. [cite]
Indeed, the odor emanating from our federal judiciary was so pungent that even Republicans could no longer bear it. Thanks to the relentless prodding of Rep. James Sensenbrenner (R-WI) and Sen. Chuck Grassley (R-IA), the federal judiciary pretended to undergo a process of soul-searching. Proving once again why it is never, ever a good idea to let any administrative body investigate itself, a committee of federal judges chaired by Justice Breyer issued a report, proclaiming to everyone's shock and surprise that everything was just going along swimmingly.
To mollify the Judiciary Committee -- which passed the Judicial Transparency and Ethics Enhancement Act of 2006, creating an inspector general for the courts, with what I recall was unanimous Democratic support -- the judges had to make it look like they were trying to solve the problems legislators were concerned about.
And here is where things get more than a little squirrelly.
When an agency proposes changes in federal regulations, it has to open the floor to public comment, and the federal Committee on Judicial Conduct did exactly that. They also held a quietly-announced public hearing in the federal courthouse in Brooklyn, which by all accounts was sparsely attended. But then, they did something truly remarkable: they decided to hide public comments from the public's view.
This story almost made it under the radar, with the lone published report coming from Marisa Taylor of the McClatchy newspaper syndicate. She reports:
The panel of judges overseeing the federal judiciary’s revision of its rules against judicial misconduct is refusing to disclose the public comments that could help shape the over- haul.
After requesting public comments about the proposed rules, the Committee on Judicial Conduct and Disability refuses to say how many responses it received, who commented or what was said.
"I have never heard of public comments being made confidentially," said Abner Mikva, a retired chief judge [appointed by Carter; see wikibio] of the U.S. Court of Appeals for the District of Columbia Circuit. "I’m trying to think of an explanation, but this strikes me as very strange." [cite]
Of the 3,500 complaints filed by citizens over the past five years, the judiciary only took action in four cases. Judges claim it is due to the fact that complainants don't understand the process, while critics like Judge Kane counter that it is a whitewashing process. The critics have the better argument, as Professor Ronald Rotunda observed last year in the WashPost:
[Judge] John Kane (who gave me permission to quote his e-mail), wrote, "I've been a district judge for 29 years and think the federal judicial house has brought this legislation on itself." He sat on the 10th Circuit Judicial Council when the first complaint about a judge came up for consideration: A district judge was trying to coerce counsel into establishing a library on product liability cases in honor of the judge.
Judge Kane's e-mail is worth quoting at length. He voted for discipline. The vote was 3 to 3, "and so the Chief Judge voted against sustaining the complaint because it was the first such complaint and he thought a close vote was too slender a reed upon which to proceed. As we were leaving the meeting, one of the judges who had voted to dismiss collared me and said, 'John, think about it. The next time it could be you or me. We've got to stick together.' " [cite]
There may not be a bar for judicial conduct on the planet set any lower than that of the Tenth Circuit, whose judges saw nothing wrong with one of their colleagues soliciting a bribe. Obviously, judges like these have a lot to hide.
What are they hiding? This complaint documents how the Tenth Circuit systematically discriminates against litigants who can't afford a lawyer. This complainant alleges massive fraud in the Second Circuit's bankruptcy courts, and the system is overwhelmed by cronyism and corruption. Federal judges have been seduced by the arrogance of veritable omnipotence, as illustrated by the antics of Reagan appointee Chief Judge Edward Nottingham of the District of Colorado who, despite being the very picture of health, parked in a handicapped parking spot and then, reportedly threatened to run over a handicapped woman in a wheelchair who blocked his exit. Judge Nottingham is -- as you would expect from a Republican -- notorious for moralizing from the bench, proclaiming during the Joe Nacchio trial, "If it is perceived that there is one law for the rich and one law for everybody else, the law will ultimately fall into disrespect."
If this is any indication of what's out there, it is but the tip of the iceberg, which is why I'm throwing out this action request.
First and foremost, we can only enjoy the blessings of liberty if our judges are not above the law; as James Madison wrote in the Federalist, "173 despots would surely be as oppressive as one." We can only hope that there is a reporter or congressional staffer out there who can bring this scandal to the attention of the right people. Visit http://www.knowyourcourts.com for more information.
Second, if there is anyone else out there who filed a complaint with the Commission, the good folks at knowyourcourts.com would like to publish it. If Judge Ralph Winter would prefer to hide under his radioactive cloud, we can still bring a brilliant ray of sunshine to his door.
Third, if there is anyone out there who is an expert in FOIA, I'd like some sort of useful guidance as to how to file a request with the Commission.