For 'Maverick' Federal Judges, Life Tenure Is Largely Unfettered
License
By NATHAN KOPPEL
The Wall Street Journal
August 8, 2008; Page A9
Life tenure for federal judges aims to give them the independence to
do what is right -- not protect them while doing wrong.
A string of recent transgressions by a federal judge in Los Angeles
has some questioning whether the federal bench can adequately police
itself.
In the most recent incident, the U.S. Federal Circuit Court of Appeals
in Wa****ngton, D.C., last week ordered Judge Manuel Real to be removed
from a patent-infringement case against Microsoft Corp. The appellate
court said Judge Real, who ruled for Microsoft, improperly ignored
evidence and failed to adequately state the reasoning behind his
rulings. Trial judges are often reversed on appeal, but rarely found
so lacking that they are removed from cases.
The very people charged with meting out carefully measured punishments
are themselves subject to imprecise sanctions that are either too lax,
according to some critics, or too severe to be used except in the
rarest occasions. The U.S. Constitution allows judges to serve "during
good behavior," which traditionally has been interpreted as "for
life." The U.S. House of Representatives can impeach judges for "high
crimes and misdemeanors," but only 13 judges have ever met this fate.
Defenders of the federal bench say the vast majority of federal judges
are exemplary, in part because they are free to follow their
consciences without worrying about losing their jobs. After all,
federal judges, as one attorney noted, led the way in desegregating
the South.
But the concerns come at a time when there are more serious-misconduct
investigations of federal judges than at any time in recent years.
Discipline short of impeachment, which typically results in a
reprimand, is usually left to court-governing bodies, whose most
severe penalty is to require misbehaving judges to take paid leaves of
absence.
"How many people in America hold jobs where, if you do them badly
enough, the punishment is you have to stop working and collect your
pay?" says Charles Geyh, a professor at the Indiana University School
of Law, who specializes in judicial ethics. Public shaming is a
sufficient sanction for most judges, he says, but probably not for
"the maverick judge who doesn't give a damn."
In state courts, judges can be voted out of office or removed by state
supreme courts for misconduct. State judges are also subject to
mandatory codes of conduct, unlike their federal counterparts, who
operate under advisory conduct codes that can be loosely interpreted.
The Judicial Conference of the United States, a panel of judges who
make policy for federal courts, adopted new procedures in March
designed to make misconduct investigations more thorough and
transparent. But the changes were modest, according to attorneys and
academics.
Even so, the new rules should be amply tested. Currently, a Denver
federal judge, Edward Nottingham, is being investigated for, among
other allegations, "intemperate" behavior and viewing **** in his
chambers. Mr. Nottingham's attorney declined to comment. In Texas,
Samuel Kent, a Houston federal judge, was reprimanded last year and
ordered to take a four-month leave of absence following allegations he
attempted to ***ually assault his former case manager. The judge has
denied the charges.
But it is Judge Real, an 84-year-old President Lyndon Johnson
appointee, who has most stoked the recent debate. He has been
admonished repeatedly for allegedly favoring one side and for failing
to provide sufficient reasoning behind his decisions. "What can you do
with a judge like Real who repeatedly abuses his power?" asks Arthur
Hellman, a judicial-ethics expert at the University of Pittsburgh
School of Law. "Lifetime tenure makes it difficult."
Judge Real didn't return calls to his chambers. Stephen Miller,
counsel to the judge, says disciplinary rules preclude him from
commenting.
Judge Real had been stripped of a case before the latest Microsoft
ruling. In March, the Ninth U.S. Circuit Court of Appeals in
California removed him from a securities-fraud case, concluding he had
entered "biased evidentiary rulings" in favor of prosecutors. And last
month, the Ninth Circuit again yanked the judge, this time in a class-
action suit against American Honda Motor Co., because he had issued a
significant ruling without providing a sufficient factual basis.
The transgressions came despite Judge Real's own acknowledgment to a
Ninth Circuit investigating committee, formed in 2006, that he
sometimes failed to adequately state his rationale. He vowed to do
better.
U.S. Supreme Court justices also have taken issue with Judge Real. In
June, the court overturned a ruling by Judge Real in a suit alleging
human-rights abuses by former Philippines President Ferdinand Marcos.
In a rare move, two justices issued opinions recommending the case not
be remanded back to Judge Real, who ruled against the Philippines,
because his conduct raised questions about whether he could be fair
toward the country.
The House Committee on the Judiciary held hearings in 2006 over
whether to impeach Judge Real, but no action was taken. The effort was
spurred by allegations he had improperly aided a woman in her
bankruptcy case pending before another judge. Judge Real testified in
Congress and denied wrongdoing. In the end, though, congressional
critics couldn't muster enough votes for impeachment, as some members
of Congress said they felt the matter should be left to the Ninth
Circuit to handle. A Ninth Circuit judge twice declined to penalize
Judge Real, but a court disciplinary body did eventually issue a
written reprimand.
Still, many believe more can be done to discipline the occasional
stray federal judge. When congressional anger over Judge Real and
others threatened to lead lawmakers to strip the courts of some
disciplinary authority, the Judicial Conference of the U.S. responded.
The new rules adopted in March grant the Judicial Conference more
power to oversee misconduct investigations and allow appellate courts
to publicly announce investigations, which have largely operated
behind closed doors.
In June, Ninth Circuit Chief Judge Alex Kozinski recommended publicly
that he should be investigated following press accounts that he had
posted ***ually explicit material to a Web site. Judge Kozinski has
said he believed the site was private, yet he still recommended the
matter be looked into. An investigation, by another appellate court,
was later announced -- a public airing that likely would not have
happened without the new procedures, Mr. Geyh says.
But the Judicial Conference only went so far. It didn't adopt stiffer
sanctions for misconduct nor did it precisely define it. Thus, the
problem remains unsolved. "Is the federal system well equipped to deal
with incorrigible behavior by judges?" asks Mr. Geyh. "No, not where
the behavior doesn't rise to the level of impeachment."
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