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How judges fail to police themselves: A case study

When was the last time that you heard of a federal judge getting in
trouble for allegedly taking bribes, banning a lawyer from his courtroom
for expressing his opinion or asking a question, sitting on a case for
years as the plaintiff goes under financially, or for that matter making
one bad decision after another? The answer is almost never. Federal
judges, like lawyers, generally protect themselves. Indeed, federal
judges — who are appointed by the president for life, through a system
of political patronage — have rigged the system; complaints of
misconduct are investigated by their peers.

So it was when Associated Press and The Washington Times recently
reported that Chief Judge Norma Holloway Johnson of the U.S. District
Court for the District of Columbia had bypassed the random “wheel of
fortune” assignment system to send two Chinagate-related criminal cases
to recently appointed Clinton judicial appointees (who then dismissed
the charges) and that eight Clinton-appointed judges, calling themselves
the “Magnificent Eight,” were holding secret meetings, that Tom Fitton,
president of Judicial Watch, felt
duty-bound to file a complaint against the nine allegedly offending
judges before the U.S. Circuit Court of Appeals for the District of
Columbia Circuit, the body which oversees lower court judges.

It is not that Mr. Fitton enjoyed the exercise of doing so; to the
contrary, lawyers who question judicial misconduct are routinely
retaliated against in their cases pending before the court. Mr. Fitton,
who is not a lawyer, filed the complaint because one of Judicial Watch’s
functions is to “watch over” the judiciary. Predictably, no other public
interest legal advocacy group did so; nor did anyone else for that
matter — including the chairmen (Sen. Orrin Hatch and Rep. Henry Hyde,
respectively) of the Senate and House Judiciary Committees, the official
government organs who oversee the judiciary.

Even so, Mr. Fitton’s complaint, initially sent to Chief Judge Harry
Edwards of the D.C. Circuit, a Democrat, made no accusations and was
exceedingly respectful. He wrote,

Mr. Fitton continued to explain that:

In response to the complaint, Mr. Fitton then heard from Acting Chief
Judge Stephen Williams, of the D.C. Circuit, a Republican, who asked for
greater specificity. While explaining that Judicial Watch not only
wanted to have investigated the non-random assignment to recent Clinton
appointees of the two Chinagate-related cases, but also what was
discussed during the secret meetings of the eight Clinton appointees
(i.e., were Judicial Watch cases against the Clinton administration
improperly made the topic of conversation?), Mr. Fitton reiterated:

Judicial Watch may have been hopeful of an aggressive investigation,
but as regrettably expected, the court had other ideas.

In a decision released publicly last Friday, Judge Williams, in
dismissing Judicial Watch’s complaint — and branding the reported
allegations of the Associated Press and The Washington Times frivolous
— effectively admitted to not conducting an investigation at all.
Relying only on letters of Judge Johnson denying the allegations, and
surmising, without any factual investigation, that the “Magnificent
Eight” had not discussed ongoing cases against the Clinton
administration in their secret meetings, he wrote,

Specifically, with regard to the allegation that Judge Johnson
had bypassed the random assignment system, Judge Williams held:

As for the secret meetings of the “Magnificent Eight,” he
concluded, also without investigation, that judges would not act on
their political affiliations:

In the letters submitted by Judge Johnson — upon which Judge
Williams relied in deciding not to conduct an investigation of any type
whatsoever — she wrote,

However shocking, Judge Johnson’s candor is also refreshing,
because it unmasks the attitude of a surprising number of federal judges
when they are called to answer for their conduct. While the framers of
the Constitution were enlightened as to most matters, when it came to
devising the method to select and oversee federal judges, they were
intellectually shortsighted. With lifetime tenure and immunity, and no
oversight apparatus to speak of, many of them feel just like Judge
Johnson; how dare anyone challenge their actions.

While Mr. Fitton plans to appeal the decision by Judge Williams to
dismiss the complaint against the “Magnificent Nine” (which now includes
Judge Johnson), Judicial Watch is also studying ways to improve our
system of judicial selection and oversight (see “Prescriptions for
Judicial Misconduct,” by D.R. Bustion and myself at
Judicial Watch’s
on the main page). For if federal
judges are immune from scrutiny, who is left to protect the American
people from the tyranny of the other two branches of government? Federal
judges are indeed our most important public servants, and a system must
be devised to get them to act that way.

For documents concerning Judicial Watch’s complaint against the
“Magnificent Nine,” see our website.