More Progress (and Politics) in Federal Judicial Accountability
The Judicial Conference's new Rules for JudicialConduct and Judicial-Disability Proceedings are a major step toward realizing the promise of the Breyer Committee Report.
The new Rules for Judicial-Conduct and Judicial-Disability Proceedings adopted by the Judicial Conference of the United States (the "New Rules") represent additional progress in demonstrating the federal judiciary's renewed commitment to promote public confidence injudicial accountability through systems of self-regulation. That effort began with former Chief Justice Rehnquist's appointment of the Judicial Conduct and Disability Act Study Committee (known as the Breyer Committee). It gained significant momentum in 2006 with the virtually simultaneous release of the Breyer Committee's report, endorsement of software that facilitates récusai for financial conflicts of interest, and adoption of a robust policy regarding judges' attendance at privatelyfunded educational programs.
In our editorial discussing these developments (see "Politics and progress in federal judicial accountability," September-October 2006), we deemed especially noteworthy the fact that "[f]ar from hiding the federal judiciary's dirty linen in the closet," the Breyer Committee Report discussed situations in which the judiciary's performance was deficient and possible causes of those deficiencies. We also expressed the view that implementation of the report's numerous recommendations "should measurably reduce instances in which the judiciary fails to police itself as envisioned in the 1980 [Judicial Councils Reform and Judicial Conduct and Disability] Act." We acknowledged, however, that it would "take time ... to see how all three of these initiatives play out and whether the promise we see in them is realized."
The New Rules are a major step toward realizing the promise of the Breyer Committee Report. They are responsive to, and in a number of important respects go beyond, that report's recommendations. Thus, instead of merely facilitating the compendium of substantive interpretations that the Breyer Committee recommended as one means to advance understanding of the 1980 Act (codified at 28 U.S.C. § 351 et seq.) and uniformity in its application, the New Rules incorporate the most important of those interpretations. Moreover, the Judicial Conference took the controversial steps of making the New Rules mandatory in all circuits and of giving the Conference and its Committee on Judicial) Conduct and Disability continuing oversight responsibility and enhanced power to review certain determinations.
We are aware that both the process by which the New Rules were developed and the rules themselves have been the subject of criticism. As to the former, the decision not to make public the comments submitted during the notice and comment period) purchased candor from judges at the price of disabling the public from assessing the rulemakers' responsiveness to the comments received. As to the latter, having submitted some suggested revisions that were not adopted, AJS could follow the lead of other organizations and individuals that reject as insufficient a disciplinary process that does not conform to their preferred model. We choose not to do so for three reasons.
First, many of the criticisms of the New Rules are predicated on models of judicial discipline, associated with systems in place in the states, tha|t Congress rejected in 1980, a position from which it has not receded wheiji amending the Act. For instance, many critics seem not to have considered the prominent role that Congress intended informal resolutions-in the shadow of the 1980 Act-to play in the system it put in place, or how pursuit of that goal might properly affect the interpretation and administration of the Act. Other criticisms, such as some relating to the confidentiality of the process and the timing and extent of public availability of decisions, are in tension if not direct conflict with provisions of the statute. …