Dr. Richard Cordero, opinion:

National Law Journal > Opinion

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Letters To The Editor

March 3, 2008


Policing federal judges

Re "Little public airing of abusive judges: Reforms
may not fix the problem": The second installment of
the "Policing the Bench" series could be resubtitled
"Reforms will not fix the problem" of abusive judges
who go undisciplined. Indeed, the revised rules for
processing misconduct and disability complaints
against federal judges will change nothing with
respect to the current rules they are supposed to
replace.

Yet they will in all likelihood be adopted on March 11
by the Judicial Conference of the United States, which
is the highest policy-making all-judge body of the
federal judiciary, presided over by the chief justice
of the Supreme Court.

For one thing, proposed Rule 2(b) provides that the
revised rules are mandatory unless there is a finding
of "exceptional circumstances," which is an easy
finding to make since no two cases are ever identical.
This means that in practice the rules will be
optional. Hence, they will allow the circuits and the
U.S. courts subject to them to apply the rules
capriciously and inconsistently so as to exempt their
abusive peers from any discipline. The judges will
also continue to do exactly what they do now because
the revised rules:

• Do not change the procedure or participants in the
judicial complaint system.

• Do not change the judge-protective secrecy that
turns a filed judicial complaint into a nonpublic
document and prohibits even the name of the judge to
be written on the envelope of the complaint.

• Do not change the lack of a requirement for the
judge to respond to the complaint, so he or she does
not even have to bother reading it, nor do they make
any response filed by a judge available to the
complainant.

• Do not change the scope of discretion to dispose of
complaints, which, in the period 1997-2006, resulted
in only seven appointments of a special investigative
committee and nine disciplinary actions out of 7,462
complaints filed.

• Do not change the policy of no public access to
special committee reports.

• Do not change the review-seeking discretion of
circuit councils, which the councils have abused by
not submitting their decisions to the Judicial
Conference Committee on Judicial Conduct and
Disability, thereby giving rise to the extraordinary
fact that in the 28 years since the passage of the
Judicial Conduct and Disability Act of 1980, the
committee has issued only 18 decisions.

• Do not change the indifference of the Judicial
Conference, the last appellate body under the
complaint procedure, which in the act's 28-year
history has not reviewed any decision of a judicial
council or the committee, let alone issue a single
opinion, if only to resolve a dispute about the scope
of its own jurisdiction.

• Do not change the unlawful practice of preventing
complainants from appealing to the Judicial Conference
despite the act's clear provision allowing "A
complainant or judge aggrieved by an action of [a]
judicial council" to do so.

Judges judging judges will continue to protect their
abusive peers through what they know the revised rules
are: a sham! More information is available here:
http://judicial-discipline-reform.org/judicial_complaints/to_protest_revised_rules.pdf

Richard Cordero
Brooklyn, N.Y.