(This subject was diaried insightfully earlier today here by kossack, Bouldergeist but received barely any response. If We the People are ever to take back our government, the subject of our courts definitely deserves much more attention.)
The federal courts are dead to us.
Admittedly, the above phrase could conceivably be premature in this situation because the Committee on Judicial Conduct and Disability’s new rules and guidelines have yet to be officially released. However, considering the fact that the committee refuses to release its findings, not only vindicates the statement but also does not bode well for the public in general. In fact, if you listen to former judges, judiciary watchdogs and members of Congress, they’re complaining of having difficulty charting the general direction that federal courts are embarking upon in the 21st Century, and the judiciary's deliberate silence is deafening.
The panel of judges overseeing the drafting of new regulations refuses to disclose the public comments that most likely would shape an upcoming system wide overhaul of rules against judicial misconduct.
Apparently, several chief circuit judges across the country have weighed in on the overhaul rule-making process, sparking speculation that the committee is debating the merits of the proposed new set of rules that would impose unprecedented oversight over how federal courts handle complaints of judicial misconduct.
The story appears in Thursday’s McClatchy Washington Bureau:
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 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."
(snip)
Legal experts said they weren't surprised by the reticence to release the information. By tradition and necessity, the federal judiciary often weighs some of its most important decisions behind closed doors and without public input.
Such secrecy, however, threatens to overshadow what's supposed to be the most sweeping tightening of federal judicial-misconduct policies in a quarter of a century.
Some watchdog groups questioned whether the panel's decision to withhold the comments was intended to prevent the disclosure of details of misconduct or to hide unhappiness among judges about having to comply with new rules.
Experts say the proposed rules would provide strict oversight from Washington and require judges to provide much more detail when explaining decisions about whether to investigate misconduct.
Earlier this year, critics chastised the judiciary for imposing undue secrecy in cases usually discussed in public. They specifically criticized the court officials' refusal to disclose details regarding sponsors of all-expense-paid trips for judges, as the new rules require.
"It shows how difficult it is to wean the judiciary off its habits of confidentiality and keeping things to themselves," said Arthur Hellman, a professor who specializes in federal judicial ethics at the University of Pittsburgh School Of Law. "It's so deeply engrained that their first reaction is always 'No, no, that's not for public circulation.' "
The decision to keep the written responses under wraps comes as the judiciary is under growing pressure from Congress to provide a better public explanation of how it handles misconduct complaints.
Legislators, advocacy groups and legal experts said that withholding the written responses would only add to suspicions about the often-secretive misconduct proceedings.
Rep. James Sensenbrenner of Wisconsin, a Republican member of the House Judiciary Committee, called the decision a mistake.
"By releasing them, the judicial branch would have credibility that it is responding to the failure of its own procedures," he said.
Unlike other government officials, judges and other court officials are not bound by law to release the comments to the public, although they had requested them as part of an official public comment period advertised in the Federal Register.
Ralph K. Winter, a judge on the 2nd U.S. Circuit Court of Appeals and head of the judicial panel committee, said in a written statement that none of the people who commented had been told that they’d be made public. Some legal experts stated that the judges probably thought they had legitimate privacy concerns preventing them from releasing the information.
The changes come in response to criticism that federal judges have failed to police themselves adequately. Last year, a panel overseen by Supreme Court Justice Stephen Breyer concluded that judges who handled five of 17 high-profile complaints had failed to investigate them properly, although it didn't find the problem to be systemic.
In the last five years, the judiciary closed 3,532 complaints but took action against judges in only four cases. In defending the high dismissal rate, judges point out that a large number of misconduct complaints are filed by people who misunderstand or abuse the process. Often, litigants who've lost their cases file misconduct complaints when they should be appealing the decisions to higher courts. Accusations of conflict of interest also are generally handled separately in recusal requests.
But critics said they thought that the judiciary might be failing to punish some judges either because the threshold for misconduct was too low or because matters weren't being investigated thoroughly.
Rep. Sensenbrenner and his counterpart in the U.S. Senate, Sen. Charles Grassley (R-IA) have proposed legislation to create an independent inspector general’s office to investigate allegations o judicial misconduct. However, the judiciary is adamantly opposed to the idea. Senator Grassley said the court’s adamance demonstrated that some judges:
"... see themselves as gods who are above criticism."
Professor Hellman was pleased with the new rules but told the committee that they don’t go far enough in requiring details regarding complaints.
Last month, the 5th U.S. Circuit Court of Appeals reprimanded U.S. District Judge Samuel B. Kent in Galveston, Texas, but neglected to specify his punishment or give any details of what he did wrong. At least one female court employee has publicly accused Kent of sexual harassment.
Of the 12 federal courts across the country, officials from the 1st, 3rd and 10th circuits stated that they wouldn’t be releasing any comments at all, and officials from the 5th, 6th, and 7th circuit courts said they didn’t write. Five other circuit courts didn’t respond at all to requests for the information.
Covering nine western states, including California, the 9th U.S. Circuit Court of Appeals met on Thursday to discuss whether to release the comments and decided to defer to the national panel.
"We will continue to participate in the process and want to encourage a full discussion within the judiciary of the subject of judicial discipline," Chief Judge Mary M. Schroeder said in a statement.
Only three people spoke when the national judicial panel held a public hearing about the new rules in New York and released the transcript from the proceedings.
The collective apathy of my fellow Americans never ceases to astound me. We concern ourselves with the minutia that the corporate-fed media shoves down our throats, all the shiny trinkets they allow us like iphones, flat-screen TVs and American Idol.
Complacency is what the criminals in the White House counted on to pass their fascist agenda, and now it appears as though the judicial branch has followed suit, tapping into that seemingly bottomless well of citizen indifference.
The Republicans want tort reform when what we really need in America is equal measures of court reform and citizen participation.
Peace