Politics and Progress in Federal Judicial Accountability
The federal judiciary has acted on three fronts in ways that should go far to meet congressional concerns which, although legitimate, prompted some of the rhetoric and threats of unilateral legislative action that we have deplored in recent years.
On a number of occasions in recent years, we have been critical of members of Congress, including some of its leaders, for statements they have made about, and actions they have threatened against, the federal judiciary and individual federal judges. It seemed to us then-and it seems to us still-that, even when there is a sound basis for congressional concern, the potential costs to judicial independence of inflammatory rhetoric and threats outweigh the likely benefits to judicial accountability.
Some of the rhetoric and threatened actions we have criticized treat courts and judges as part not just of our political system but of ordinary politics. They reflect a debased vision of judicial accountability that sees judges as a means to achieve specific policy goals. Such a vision makes no distinction between oversight of the judiciary, which can be an appropriate aspect of judicial accountability, and oversight of individual judges, which is not (except in extraordinary situations warranting consideration of removal from the bench). Moreover, particularly at times when ordinary politics rejects norms of mutual respect and accommodation, such a vision puts at risk the public's traditionally deep reservoir of support for the judiciary, encouraging citizens to ask not "What does the law require?," but rather, "What have you done for us lately?"
Courts are part of our political system, however, and the judiciary must find ways to participate in it without becoming the victim of politics. Lacking the powers of the purse and the sword, and defended by a shield that is narrow, the federal judiciary cannot safely reply to inflammatory rhetoric in kind or to threats of unilateral legislative action with claims of power that does not exist. More important, in rejecting debased notions of judicial accountability, the judiciary cannot safely neglect the critical role that appropriate judicial accountability plays in the maintenance of a tradition of judicial independence that has nourished, and been nourished by, the public's support.
It is thus with both gratitude and relief that we note the simultaneous announcement of three actions by the federal judiciary that should go far to meet congressional concerns which, although legitimate, prompted some of the rhetoric and threats of unilateral legislative action that we have deplored.
First, responding to documented instances when federal judges failed to disqualify themselves as required by federal law, the Judicial Conference has adopted a policy that mandates the use of conflict-checking computer software. This should facilitate the identification of cases in which judges may have a prohibited financial conflict of interest (federal law in this area does not respect the maxim, de minimis non curat lex). The Conference's Committee on Codes of Conduct is surely correct, however, that "automated screening is not foolproof" and that it does not replace, but rather supplements, "a judicial officer's individualized review." Although we are aware of no evidence that past failures to identify financial conflicts have been other than inadvertent, the issue here is legally mandated judicial accountability, and the adverse publicity attending these lapses has fueled the fires set by those who seek to gain power by attacking courts.
Second, in response to concerns about the expense-paid attendance of federal judges at judicial education programs that are allegedly funded by those with interests in litigation before those judges, the Judicial Conference has approved a recommendation of its Committee on the Judicial Branch that is designed to require transparency. The approved policy effectively requires covered private providers (which do not include, among others, bar and judicial associations) that wish to pay for or reimburse federal judges' expenses above a certain level to disclose information to the Administrative Office of the United States Courts. …