Federal courts function with integrity, according to a self-serving annual report on the judiciary that Supreme Court Chief Justice John Roberts issued over the weekend.
His annual report issued on Dec. 31 in the middle of the New Year’s holiday weekend focused heavily on the need for public confidence. But he recommended nothing more for reform than current procedures for addressing increasing calls for recusal or even impeachment because of conflict issues.Noting at the outset baseball’s disgrace from player bribery in the 1919 “Black Sox” scandal, Roberts said he had “complete confidence” in the integrity of judges, including his Supreme Court colleagues.
That’s not good enough from the chief justice, who presides over both the nine-member high court and the Judicial Conference of the United States, which supervises the federal court system nationally.
It’s doubtless true that the vast majority of judges work honorably. But there’s lot of evidence of judges who have been enriched or otherwise co-opted by benefactors and political allies while protected by cronies and toadies. Here is a sample commentary from today, for example, referencing the chief justice’s report in terms far different than coverage from the mainstream media focused on maintaining access to judges and prosecutors. Even without such documentation, the public increasingly suspects shortcomings in all federal institutions, courts included.
So far, 52 House Democrats have requested a House Judiciary Committee impeachment investigation of Republican Justice Clarence Thomas for false statements on his annual financial disclosure statements covering up a reported $1.6 million in payments and gifts, mostly to his wife, Virginia.
This is one basis for an effort by some Democrats to prevent Thomas from sitting on the Court’s upcoming review of the Obama-supported health care initiative. Democrats focus especially on his 2010 vote in a 5-4 ruling won by the same Citizens United group that advocated for his confirmation in 1991 with massive television ads. The ruling was central to planning by Virginia Thomas to lead a new non-profit called Liberty Central funded by conservatives to help corporations make political donations.
In response, Republicans seek to target Elena Kagan, a Democrat, from reviewing the law’s constitutionality because of her work as solicitor general for the Obama Justice Department.
Foreseeing some of these problems, the non-partisan Justice Integrity Project I lead opposed her confirmation on civil rights grounds. We feared she was too closely aligned with the president on executive power issues. One such deservedly controversial Obama action that’s in the news this weekend is the defense appropriation law he signed Dec. 31 enabling, among other things, military detention indefinitely without trial of U.S. citizens suspected of supporting terror.
Recusal issues are clearly on the court’s radar, as indicated by a landmark 5-4 ruling in 2009 that a West Virginia state Supreme Court justice who had received millions from a mine owner must recuse from a high-profile case involving the donor.
I wrote about a similar situation that year involving the notorious federal prosecution of former Alabama Gov. Don Siegelman, whose federal judge controlled a company receiving some $300 million in federal contracts from the Bush administration. Just last week, new allegations arose in in Wisconsin regarding a Supreme court justice who received cut-rate legal services from an attorney frequently litigating before the justice.
Roberts cited no specifics in his report, whose release at 6 p.m. Saturday night on New Year’s Eve suggests a message more from duty than for public education. In it, the chief justice says:
I have complete confidence in the capability of my colleagues to determine when recusal is warranted. They are jurists of exceptional integrity and experience whose character and fitness have been examined through a rigorous appointment and confirmation process. I know that they each give careful consideration to any recusal questions that arise in the course of their judicial duties. We are all deeply committed to the common interest in preserving the Court’s vital role as an impartial tribunal governed by the rule of law.
To be sure, the Roberts mention of ethics provides a public service since the courts rarely comment on the topic at all during the year and also make it difficult for litigants and the rest of the public to obtain reliable and timely financial information on judges. Disclosures are in generalities and with a time-lag on the forms, which are primarily available courtesy of the conservative advocacy group Judicial Watch.
Here’s what Roberts should have recommended:
- Specific ethics standards and enforcement for Supreme Court justices, not just for judges on lower courts.
- Reassessment by the court’s administrative office of financial disclosure procedures, which are heavily dependent on voluntary compliance by judges and opaque procedures for the public; and
- Support, at least in general, for FBI and congressional investigations as oversight on well-documented criminal allegations against judges. These would include scrutiny of instances of clear-cut perjury during confirmation hearings.
Instead, the Bush-appointed Republican Roberts argues in essence that increased oversight is neither needed nor permissible under judicial independence mandated by the Constitution. But in a democracy, surely some reform must be Constitutionally permissible.
Recently, the presidential campaign of Newt Gingrich tapped into public concern about activist and otherwise unaccountable judges. His solution is fatally flawed because it relies, in essence, on politicians seeking reprisals against judges based on highly subjective standards.
The better reform is bipartisan commitment to improved procedures that increase accountability, whether the targets are high or low, Democrat or Republican. Little scrutiny exists currently except for the most obvious crimes.
“The Supreme Court affects the life of every American every day,” says former court clerk Edward Lazarus in his iconic study, Closed Chambers. Yet the court is an insular, self-protective body. Presiding over a vast nation, all nine attended Harvard or Yale Law School (although Justice Ruth Ginsberg transferred from Harvard to Columbia for her degree). All but Thomas are from the metro New York region. Its members socialize with one another, generally refrain from self-criticism or reform, and otherwise protect one another under a theory the Constitution makes them accountable to no one, not even their colleagues.
Roberts could help initiate better oversight procedures if he wanted. But his report proves, if nothing else, that it’s still business as usual in the judiciary — unless or until the public demands reform.