Spate of disciplinary cases unlikely to erode federal judiciary's prerogative to judge itself.
Miller-McCune LEGAL AFFAIRS by Meghan Gordon - October 24, 2008
The judicial misconduct case closest to the ultimate punishment for the lifetime appointees — impeachment — is that of U.S. District Judge Thomas Porteous of New Orleans, a target of at least six years of scrutiny for his actions in a personal bankruptcy and for accepting gifts from lawyers who practiced before him. A panel of the nation's top judges, presided over by Chief Justice John Roberts, found substantial evidence that Porteous repeatedly perjured himself in his bankruptcy, lied on financial disclosures and deprived litigants from knowing that he was accepting thousands of dollars in cash and other gifts from lawyers trying cases in his court. Porteous and his wife, Carmella, used the fake names, "G.T. and C.A. Ortous" to file bankruptcy, hoping to avoid public scrutiny that would come with their names appearing in a list of recent filings. According to a 5th Circuit panel that investigated his case, Porteous came to the bankruptcy with $66,000 in gambling debts and continued to bet without disclosing the new debt in court proceedings. He begged lawyer friends for help, even as three of them were trying a civil case in his division. They chipped in for his son's wedding and paid his airfare and hotel room to attend his son's bachelor party in Las Vegas.
In the 12 months ending Sept. 30, 2007, for example, some 841 complaints were filed, of which 752 were concluded by year end. Of the 404 considered by chief judges, 392 were dismissed for being not in conformity with statute, not directly related to a ruling or frivolous; three were marked "appropriate action already taken"; six were marked "action no longer necessary because of intervening events"; and three were withdrawn by the complainant. Of the 348 considered by judicial councils, 344 were dismissed, two were withdrawn and two were marked "ordered other appropriate action." Five cases out of the 841 complaints were sent to a special investigating committee to review. Most of the scant complaints determined to be legitimate remain under seal while chief judges mete out punishments such as reprimands and suspensions. "You have to balance out the public's need to know with the privacy concerns of a particular judge or just the judicial system," Tobias said. Northwestern University law professor James Pfander said that even the whisper of alleged judicial misconduct would inflict enormous injury to a judge's reputation. Yet such secrecy, no matter how integral it is to the judiciary's ability to act independently, will always make it difficult for the public to judge for itself whether the court system sets a rigorous ethical standard for those who rule its benches. "We try to throw up some kind of shield to protect judges from scurrilous complaints," Pfander said. "It's important for the system not only to do the right thing but to be seen doing the right thing." In building a system for processing judicial complaints, the courts had no constitutional guidance.
"Impeachment was the only method that they explicitly thought about as a method of controlling bad judges," Geyh said, adding that it's an extremely cumbersome solution. In 2004, Chief Justice William Rehnquist created a panel led by Justice Stephen Breyer to investigate how the courts were handling ethical complaints against its judges, acknowledging the sharp criticism coming out of Congress. "He felt that there was a need to strengthen the requirements, and that maybe the public was losing trust in the judiciary," Tobias said. The commission's study, released in 2006, found that the system appropriately handled the vast majority of complaints. "While a perfectly operating system remains the goal, the Committee recognizes that no human system operates perfectly; some error is inevitable," the report said. "And the Committee is unanimous in its view that a processing error rate of 2% to 3% does not demonstrat e a serious flaw in the operation of the system - given the number of complaints filed, their occasional lack of clarity, and the judgmental nature of the decision as to whether further inquiry is required." When the panel examined "high-visibility" cases, however, it found that of 17 serious allegations that received media attention, five were mishandled — a 30 percent error rate.