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How judges fail to police themselves: A case study

Posted By Larry Klayman On 12/07/1999 @ 1:00 am In Commentary | Comments Disabled

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,

    The information upon which Judicial Watch bases its request for
    an investigation has been reported publicly by a number of media
    outlets. Given the hard fact that several district court judges appear
    themselves to be the sources for this information, Judicial Watch’s
    request for an investigation should respectfully be acted upon sua
    sponte (i.e., on the Court’s own initiative).

Mr. Fitton continued to explain that:

    Judicial Watch only files this complaint … because … you will
    seemingly allow no other vehicle to commence an investigation of these
    allegations. Judicial Watch makes no accusations and casts no aspersions
    on the integrity of Chief Judge Johnson nor on any other colleagues
    appointed by President Bill Clinton. However, as a public-interest
    watchdog group that is committed to advancing legal and judicial ethics,
    Judicial Watch would not be true to its mission if we did not
    appropriately pursue the allegations at issue here.

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 has the utmost respect for the judiciary, and
    believes that it represents the only real protection for the American
    people against the tyranny of the executive and legislative branches of
    government. Indeed, this is the reason for the name “Judicial Watch,”
    since we were founded in large part to petition the Courts to redress
    corruption in the other two branches of government. When, however,
    corruption occurs in the third, judicial branch of the government, it is
    important for judges to vigorously police themselves to maintain not
    only justice, but also the appearance of justice. Without a
    “depoliticized judiciary,” the American people are rendered virtually
    defenseless to government corruption.

    Judicial Watch believes that judges are our most important public
    servants, and it is hopeful that you and your colleagues will thoroughly
    and aggressively investigate these serious charges.

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,

    The complaint of misconduct is “wholly unsupported” and is
    dismissed as frivolous pursuant to 28 U.S.C. 372 (c)(3).

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

    … [t]he alleged impropriety is incapable of being established
    through investigation.

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

    …it is inappropriate to impose on the court the burdens of an
    investigation.

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,

    To my knowledge, no judge of this Court has made a formal or
    informal complaint of any kind, and I find it demeaning to be called
    upon to respond to an apparent anonymous whispering campaign conducted
    by various media outlets. Thus, I state unequivocally and emphatically
    that the unsupported allegations made by Judicial Watch are patently
    false and deserve to be summarily dismissed.

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
website
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.


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