As the Senate grapples with its constitutional role of “advice and consent” regarding judicial nominees, the House Judiciary Committee, which I chair, is continuing its work on a less-known and less-understood congressional responsibility: oversight of the federal judiciary. This robust and aggressive oversight effort is aimed at improving the federal judiciary’s operations and behavior.
Efforts by Congress to fulfill its constitutional oversight responsibility over the federal judiciary do not threaten judicial independence, as some allege. Our great nation’s strong and independent judiciary ensures that our jurists decide cases on their merits in accordance with the Constitution. Federal judges enjoy wide latitude in writing opinions and are constrained only by the Constitution’s parameters. We do not punish judges because we disagree or do not like their opinions.
The independence the federal judiciary has regarding opinions, though, does not mean federal judges are unaccountable to Congress and the public for their behavior. A judge with a conflict of interest when hearing a case or who seals public court information without reason should not hide behind “judicial independence” to defend his actions.
It’s in these broad non-opinion areas that the House Judiciary Committee is continuing its oversight activities. For example, Congress funds the federal courts, establishes all federal courts except the Supreme Court and prescribes what cases federal courts can hear.
The House Judiciary Committee is looking into whether Congress needs to create an Office of Inspector General for the Federal Judiciary. Each major department in the federal government has its own inspector general (IG), who serves as an independent, in-house watchdog. IGs are empowered to protect the integrity of federal agencies by investigating program and management problems, especially by ferreting out waste, fraud, and abuse through audits and inspections. IGs investigate allegations of inappropriate behavior by officials and serve as a valued and independent voice. In short, they promote good government, help protect the people’s tax dollars, and could help restore some of the public’s confidence in the federal judiciary.
The House Judiciary Committee is closely monitoring a commission headed by Supreme Court Justice Breyer that is looking into the judicial discipline law. This 1980 law allows citizens to file complaints against federal judges for misconduct and essentially allows the federal judiciary to judge allegations of inappropriate behavior by its members. This self-policing policy initially worked well, but recently has failed to ensure that federal judges with lifetime tenure are being held to the standard the public deserves and the Constitution requires. Because impeachment is such a drastic and blunt instrument, we need an effective process to ensure that federal judges are held accountable for misdeeds that do not rise to the level of impeachment. I anxiously await the Breyer Commission’s findings.
The current process failed in its handling of the complaint I filed with the 7th Circuit Court of Appeals regarding the actions of 7th Circuit Senior Judge Richard Cudahy while serving on the Special Division of the D.C. Circuit Court overseeing independent counsels. Judge Cudahy, whether inadvertently or not, leaked confidential sealed grand jury material to an Associated Press reporter on the day that former Vice President Gore was nominated to run for President in 2000. Judge Cudahy, a former chair of the Wisconsin Democratic Party who was nominated to the bench by President Jimmy Carter, admitted to his politically explosive and possibly criminal acts only upon threat of exposure by a criminal investigation and polygraph examination, after seeking to preclude any investigation.
The complaint I filed was almost immediately whitewashed by the judge responsible for conducting an investigation into the matter. This judge dismissed the matter out of hand eight days later without conducting any investigation by noting Judge Cudahy apologized. This indifferent dismissal insulted not only me and the Congress, but the people we represent. More importantly, we should not have one standard for leaking sensitive information for judges and one for everyone else.
Another key oversight aspect entails splitting the San Francisco-based 9th Circuit Court of Appeals into three new circuits—a position endorsed by the House last year. This split idea has been debated and kicked around in academic, legislative, and legal circles for 30 years.
Many conservatives might instinctively support a split as “payback” for the 9th Circuit’s penchant for judicial activism and outrageous rulings, including in the Pledge of Allegiance case. This would be misguided. Rather, anyone concerned about the administration of justice should look at whether the 9th Circuit functions efficiently.
I advocate a split because the facts are clear: The 9th is too big in so many ways. It leads all circuits in total appeals filed and pending. It represents too many people and too many litigants over too large an expanse of geography. Along with many other members of Congress, I am greatly concerned about the 9th’s inability—based on its size and workload—to do more of its work sitting as an en banc, or “full,” bench on issues of great importance.
Most importantly, though, the 9th’s immense size is negatively affecting the quality of its legal decisions. The 9th consistently has one of the highest—and many times the highest—rate of summary reversals by the Supreme Court. With 3,000 separate combinations of three-judge panels, the 9th lacks coordination and consistency among the panels. The question is not if the 9th will be split, but when.
The Constitution provides Congress a central role in regulating the federal judiciary. The House, led by the Judiciary Committee, will continue its aggressive oversight of the judiciary motivated not by anger or retribution but by an interest in improving the Third Branch’s operations and behavior.