One of the worst things about the George W. Bush pResidency is the change in the federal judiciary. Bush has appointed nearly 300 judges to the federal courts, with another 28 nominations pending review by the Senate Judiciary Committee. Republican appointed judges currently control nine of the federal appellate courts. This would not be a problem if judges were impartial in their decisions, but it is apparent to the most casual observer that political ideology is now a part of many judicial rulings. Anyone who doubts that should review the case of Bush v. Gore.
Justice John Paul Stevens said in Bush v. Gore:
What must underlie petitioners' entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed. Otherwise, their position is wholly without merit. The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law.
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The Nation's lack of confidence in the judge as "an impartial guardian of the rule of law" extends to state courts, for good reason.
HALT (Help Abolish Legal Tyranny), a nonprofit, nonpartisan public interest group founded in 1978, is the nation's largest legal reform organization, with "more than 50,000 members (...) dedicated to providing simple, affordable, accountable justice for all."
HALT recently released a 2008 Judicial Accountability Report Card that reviewed federal and state programs which are supposed to provide oversight and review of judges in all 50 states, D.C. and the federal circuits. The evaluation was based interviews with judicial conduct administrators, statistics from the American Judicature Society and the Center for Public Integrity, review of rules and reporting for disciplinary procedures, as well as state and federal statutes for financial disclosure and gift receipts.
The report was "a scathing indictment of toothless judicial ethics standards and the closed-door systems charged with disciplining judges" and cited several cases (pdf file) of judicial abuse, misconduct and improprieties.
More than half of the states received marks below C. No state earned an A. Mississippi and Maine got grades of "F." The systems overseeing federal judges a got a D+. A complete listing of the results by state can be found here (pdf file). A complete listing of the ranked results can be found here (pdf file).
With such dismal results, one might think that the evaluation criteria were too harsh; I would disagree. The evaluations were based on:
o Transparency
o Availability
o Consumer Friendliness
o Online Outreach
o Public Participation
o Financial Disclosure
o Gift Restrictions
As an example, grades for Gift Restrictions were determined by whether a judge can receive reimbursements, compensation and honoraria in connection with privately sponsored trips. Grades were assigned as follows:
A = Under no circumstances
B = Monetary restrictions are placed on 3 of the above
C = Monetary restrictions are placed on 2 of the above
D = Monetary restrictions are placed on 1 of the above
F = A judge may receive all of the above with no monetary restrictions
The objective the evaluation was to determine if judicial accountability was "transparent, rigorous and publicly accessible." Details of the evaluation factors can be found here (pdf file)
The report said:
While most judges serve capably from the bench, our systems for judicial accountability unfortunately allow others to regularly abuse their positions of power," stated HALT Senior Counsel Suzanne M. Blonder. "Weak conduct codes permit state and federal judges to rule even when they have a critical conflict of interest in a case. Judicial discipline commissions regularly turn a blind eye to misconduct by making it difficult for citizens to file complaints against judges, concealing data and ultimately refusing to remove or meaningfully sanction even the most incompetent and abusive judges.
Ten specific "best practices" were identified as a means to make judicial systems "transparent, rigorous and publicly accessible." They are:
o Release information about a judicial ethics complaint at the conclusion of a preliminary investigation.
o Replace closed-door sanctions against judges with formal, public discipline.
o Provide conduct commissions with the authority to impose a wide range of public sanctions to address a broad spectrum of judicial transgressions.
o Remove abusive judges from the bench.
o Clarify that complainants and witnesses have the right to speak freely about a judge's misconduct and disciplinary proceedings.
o Host an easily navigable Web site that provides clear information about how to file an ethics complaint against a judge and allows the public to search for a judge's
disciplinary history.
o Require judges to annually file comprehensive financial disclosure reports.
o Guarantee convenient and affordable public access to judges' financial disclosures.
o Place clear limitations on the gifts that judges can receive in connection with privately sponsored trips.
Article III, Section 1 of the Constitution says:
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour ...
It appears that we need to have a better definition of "good behaviour." Our legislators need to address these issues and restore judicial integrity and accountability. And, given the right-turn taken by federal courts over the past two decades, we can't have John McCain appointing more right wing ideologues to the federal court system.