[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]


 
        JUDICIAL TRANSPARENCY AND ETHICS ENHANCEMENT ACT OF 2006

=======================================================================

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON CRIME, TERRORISM,
                         AND HOMELAND SECURITY

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                                   ON

                               H.R. 5219

                               __________

                             JUNE 29, 2006

                               __________

                           Serial No. 109-124

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov


                                 ______

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                       COMMITTEE ON THE JUDICIARY

            F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois              JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina         HOWARD L. BERMAN, California
LAMAR SMITH, Texas                   RICK BOUCHER, Virginia
ELTON GALLEGLY, California           JERROLD NADLER, New York
BOB GOODLATTE, Virginia              ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio                   MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California        ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee        SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah                   MAXINE WATERS, California
SPENCER BACHUS, Alabama              MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina           WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana          ROBERT WEXLER, Florida
MARK GREEN, Wisconsin                ANTHONY D. WEINER, New York
RIC KELLER, Florida                  ADAM B. SCHIFF, California
DARRELL ISSA, California             LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona                  CHRIS VAN HOLLEN, Maryland
MIKE PENCE, Indiana                  DEBBIE WASSERMAN SCHULTZ, Florida
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas

             Philip G. Kiko, General Counsel-Chief of Staff
               Perry H. Apelbaum, Minority Chief Counsel
                                 ------                                

        Subcommittee on Crime, Terrorism, and Homeland Security

                 HOWARD COBLE, North Carolina, Chairman

DANIEL E. LUNGREN, California        ROBERT C. SCOTT, Virginia
MARK GREEN, Wisconsin                SHEILA JACKSON LEE, Texas
TOM FEENEY, Florida                  MAXINE WATERS, California
STEVE CHABOT, Ohio                   MARTIN T. MEEHAN, Massachusetts
RIC KELLER, Florida                  WILLIAM D. DELAHUNT, Massachusetts
JEFF FLAKE, Arizona                  ANTHONY D. WEINER, New York
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
LOUIE GOHMERT, Texas

                     Michael Volkov, Chief Counsel

                          David Brink, Counsel

                        Caroline Lynch, Counsel

                 Jason Cervenak, Full Committee Counsel

                     Bobby Vassar, Minority Counsel


                            C O N T E N T S

                              ----------                              

                             JUNE 29, 2006

                           OPENING STATEMENT

                                                                   Page
The Honorable Howard Coble, a Representative in Congress from the 
  State of North Carolina, and Chairman, Subcommittee on Crime, 
  Terrorism, and Homeland Security...............................     5
The Honorable Robert C. Scott, a Representative in Congress from 
  the State of Virginia, and Ranking Member, Subcommittee on 
  Crime, Terrorism, and Homeland Security........................     6
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, and Ranking Member, Committee on 
  the Judiciary..................................................     7

                               WITNESSES

The Honorable Charles Grassley, a U.S. Senator from the State of 
  Iowa
  Oral Testimony.................................................     1
  Prepared Statement.............................................     3
Mr. Ronald Rotunda, Professor of Law, George Mason University 
  School of Law
  Oral Testimony.................................................    10
  Prepared Statement.............................................    13
Mr. Arthur Hellman, Professor of Law, University of Pittsburgh 
  School of Law
  Oral Testimony.................................................    29
  Prepared Statement.............................................    31
Mr. Charles Geyh, Professor of Law, Indiana University School of 
  Law at Bloomington
  Oral Testimony.................................................    46
  Prepared Statement.............................................    48

                                APPENDIX
               Material Submitted for the Hearing Record

Prepared Statement of the Honorable Robert C. Scott, a 
  Representative in Congress from the State of Virginia, and 
  Ranking Member, Subcommittee on Crime, Terrorism, and Homeland 
  Security.......................................................    59
Prepared Statement of the Honorable John Conyers, Jr., a 
  Representative in Congress from the State of Michigan, and 
  Ranking Member, Committee on the Judiciary.....................    60
Letter to the Honorable Howard Coble from Leonidas Ralph Mecham, 
  Secretary, Judicial Conference of the United States............    61


        JUDICIAL TRANSPARENCY AND ETHICS ENHANCEMENT ACT OF 2006

                              ----------                              


                        THURSDAY, JUNE 29, 2006

                  House of Representatives,
                  Subcommittee on Crime, Terrorism,
                              and Homeland Security
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to call, at 11:37 a.m., in 
Room 2141, Rayburn House Office Building, the Honorable Howard 
Coble (Chairman of the Subcommittee) presiding.
    Mr. Coble. Good morning, ladies and gentlemen. The 
Committee will come to order.
    To begin with, Mr. Scott and I will apologize for our 
delay. But best-laid plans of mice and men, you know, oft times 
go awry, and we had a vote.
    And, Senator Grassley, the distinguished gentleman from 
Iowa, I am told that you are on a short leash.
    So, Bobby, with your consent, and with the consent of the 
others, I am going to violate the rules of protocol, Senator, 
and permit you to give your 5-minute testimony, and then Mr. 
Scott and I will give our respective opening statements, and we 
will hear from the other three members, if that is in agreement 
with everyone.
    I am told you are managing a bill on the Senate floor now, 
Senator. So why don't you proceed and go for 5 minutes, 
Senator? Then we will resume regular order.

         TESTIMONY OF THE HONORABLE CHARLES GRASSLEY, 
             A U.S. SENATOR FROM THE STATE OF IOWA

    Senator Grassley. Okay. Mr. Chairman, the legislation is 
the Oman free trade agreement that starts at 11:30, so I accept 
the opportunity that you have given me to be here to discuss 
H.R. 5219. I introduced a companion bill in the House, and I am 
hopeful that we can move forward with this legislation in both 
bodies.
    The Federal judiciary is supposed to be engaged in self-
regulation of ethics issues, but ever since I chaired the 
Senate Judiciary Subcommittee on Courts in the early 1990's, 
concerns have been raised about compliance with judicial ethics 
rules and whether the judiciary can adequately police itself.
    Concerns about alleged ethics violations, conflicts of 
interest, and appearances of impropriety continue to be 
reported in the press.
    Now, I don't know whether or not these lapses were 
intended. I don't know whether these instances were violations 
of judicial ethics or codes of conduct. But it doesn't look 
like the judiciary is acting fast enough to show us that judges 
are crossing all their t's and dotting all their i's or that 
the rules work as well as they should.
    These allegations don't instill much confidence in me, and 
I am sure they don't instill much confidence in the American 
people. I know that mistakes happen. But there are enough 
questions out there for me to conclude that some sort of action 
is necessary.
    So in my mind, the judiciary hasn't done enough to reassure 
the public that it is doing all it can to address perceived 
cracks in the system. The bottom line is that no one is above 
the law. That is presidents or Members of Congress. And our 
judges aren't either.
    And I know they know that. History shows us that the 
institution of inspector general has been crucial in detecting, 
exposing and deterring problems within Government. The job of 
inspector general is to be the first line of defense against 
fraud, waste and abuse.
    In collaboration with whistleblowers, inspectors general 
have been extremely effective in efforts to expose and correct 
wrongs. That is why, during my 30 years on Capitol Hill, I have 
worked hard to strengthen the oversight role of inspectors 
general.
    I rely on I.G.s and whistleblowers to ensure that our tax 
dollars are spent according to the letter and spirit of the 
law. And inspector general is just the right kind of medicine 
that the Federal judiciary needs to ensure that it is complying 
with every ethic rule.
    An independent I.G., one with integrity and courage, will 
help root out waste, fraud and abuse. And the reality is that 
if we establish internal controls, those controls can help make 
sure that these problems don't ever happen.
    Now, I know that some people think that there is no need 
for a judiciary I.G. They believe that the current system of 
self-policing is adequate. Some believe that they can just 
legislate certain rules for the judiciary and that that is 
going to fix the problem.
    Legislating is one thing. Ensuring accountability is quite 
another. The judiciary's current self-policing system is just 
not up to snuff. There are too many questions about how 
conflicts and financial interests are reported and how recusal 
lists are compiled and kept up to date.
    There are too many questions as to whether the judiciary's 
current policy, which I understand is not uniform throughout 
the court system itself, is as effective as it should be. 
Transparency can only make the system better and make our 
judges more accountable to the people.
    But there isn't a lot of transparency in our current 
system. I agree with some of my colleagues that one way to 
ensure that ethics are being followed is to allow more 
transparency with respect to judges' financial holdings and 
potential conflicts.
    Improved access to judges' financial information as well as 
recusal lists will promote transparency and check the 
judiciary. But beyond that, an independent office of inspector 
general can do a lot to keep the Federal judiciary on its toes 
and up to par with standards as expected.
    And the proof is in the pudding. The institution of I.G. in 
various agencies has significantly increased accountability.
    Based on their oversight role as well as oversight 
activities by Congress and the Government Accountability 
Office, many agencies have improved internally and have 
prevented more waste, fraud and abuse from happening.
    An inspector general is a simple, common-sense internal 
control and check on internal impropriety. An internal watchdog 
also acts as a deterrent for improper activity.
    Further, an inspector general's office can do a better job 
when it has the cooperation of employees who aren't afraid to 
raise concerns, so that brings about the necessity of 
strengthening whistleblowers' positions and keeping the public 
trust.
    They step forward, they put their careers and reputations 
on the line, to just do one thing, to commit truth. And they 
deserve not to be retaliated against. Providing whistleblower 
protections to judicial branch employees will help our 
judiciary function better.
    The bill before you is a straightforward bill and I won't 
go into the details of that, but it is going to ensure a fair 
and independent judiciary as a critical aspect of our 
constitutional system of checks and balances and to make sure 
that they do their job right.
    Judges are supposed to maintain an appearance of 
impartiality. They are supposed to be free from conflicts of 
interest. And an independent watchdog for the Federal judiciary 
will help judges comply with all of these requirements.
    Whistleblower protection for that branch employees will 
help keep the judiciary accountable. This bill will not only 
ensure continued public confidence in our Federal judiciary and 
keep them beyond reproach, it will strengthen our judicial 
branch.
    So I thank you, Chairman Coble, for the opportunity to be 
before you. And since I shortcut some of my statements, I would 
like to have the entire statement put into the record as 
printed.
    [The prepared statement of Mr. Grassley follows:]

  Prepared Statement of the Honorable Chuck Grassley, a U.S. Senator 
                         from the State of Iowa

    Chairman Coble, it's a pleasure for me to be here today to discuss 
HR 5219, the Judicial Transparency and Ethics Enhancement Act of 2006. 
I introduced the companion bill in the Senate. I'm hopeful we can move 
forward with this legislation, because it'll go a long way in helping 
restore the American people's trust in our judicial system.
    The federal judiciary is supposed to engage in self regulation on 
ethics issues. But ever since I chaired the Senate Judiciary 
Subcommittee on Administrative Oversight and the Courts in the early 
1990s, concerns have been raised about compliance with the judicial 
ethics rules and whether the judiciary can adequately police itself on 
these matters. Concerns about alleged ethics violations, conflicts of 
interests, and appearances of impropriety by judges continue to be 
reported by the press.
    Now, I don't know whether or not these lapses were intentional. I 
don't know whether these instances were violations of the judicial 
ethics rules, the ethics statute, or the judicial code of conduct. But 
it doesn't look like the judiciary is acting fast enough to show us 
that judges are crossing all their ``T's and dotting all their ``I's, 
or that the rules work as well as they should. I'm sorry to say that 
these allegations don't instill much confidence in me, and I'm sure 
that they don't instill much confidence in the American people. I know 
that mistakes happen, but there are enough questions out there for me 
to conclude that some sort of action is necessary. In my mind, the 
judiciary hasn't done enough to reassure the public that it is doing 
all that it can to address what are perceived to be cracks in the 
system.
    The bottom line is that no one is above the law. The President 
isn't above the law. Congressmen and Senators aren't above the law. And 
our judges aren't above the law either.
    The facts do show us that the institution of the Inspector General 
has been crucial in detecting, exposing and deterring problems within 
our government. The job of the Inspector General is to be the first 
line of defense against fraud, waste and abuse. In collaboration with 
whistleblowers, Inspectors General have been extremely effective in 
their efforts to expose and help correct wrongs.
    That's why, during my 30 years on Capitol Hill, I've worked hard to 
strengthen the oversight role of Inspectors General throughout the 
federal government. I've come to rely on IGs and whistleblowers to 
ensure that our tax dollars are spent according to the letter and 
spirit of the law. And when that doesn't happen, we in Congress need to 
know about it and take corrective action.
    I truly believe that an Inspector General is just the right kind of 
medicine that the federal judiciary needs to ensure that it is 
complying with the ethics rules. An independent IG, one with integrity 
and courage, will help root out waste, fraud and abuse. And the reality 
is that if we establish internal controls, those controls can help make 
sure that these problems don't happen in the first place.
    Now, I know that some people think that there is no need for a 
judiciary IG. They believe that the current system of self policing is 
adequate. In addition, some believe that we can just legislate certain 
rules for the judiciary, and that will fix the problems that we are 
seeing. But, legislation is one thing; ensuring accountability is 
another.
    The judiciary's current self policing system is just not up to 
snuff. There are too many questions about how conflicts and financial 
interests are reported and how recusal lists are compiled and kept up 
to date. There are too many questions as to whether the judiciary's 
current policy--which I understand is not uniform throughout the 
courts--is as effective as it can be. Transparency can only make the 
system better and make our judges more accountable to the people. But 
there isn't a lot of transparency with the current system. I agree with 
some of my colleagues that one way to ensure that the ethics rules are 
being followed is to allow more transparency with respect to a judge's 
financial holdings and conflicts. Improved access to judges' financial 
information, as well as judges' recusal lists, would promote 
transparency and place a check on the judiciary.
    But beyond that, an independent office of Inspector General within 
the judicial branch can do a lot to keep the federal judiciary on its 
toes and up to par with the standards that are expected of it.
    And the proof is in the pudding. The institution of the IG in 
various agencies has significantly increased accountability to the 
public. Based on their oversight role, as well as oversight activity by 
the Congress and the GAO, many agencies have improved internally and 
have prevented more waste, fraud and abuse from happening. An internal 
Inspector General is a simple, commonsense internal control and check 
on internal impropriety. An internal watchdog also acts as a deterrent 
for improper activity.
    Further, an Inspector General's Office can do a better job when it 
has the cooperation of employees who aren't afraid to raise concerns 
about internal misconduct. Whistleblowers help strengthen and keep the 
public trust. Whistleblowers who step forward and put their careers and 
reputations on the line in defense of the truth deserve to be 
protected, not retaliated against. Providing whistleblower protections 
to judicial branch employees will only help our judiciary function 
better.
    The Judicial Transparency and Ethics Enhancement Act is a 
straightforward bill. It would establish an Office of Inspector General 
for the judicial branch. The IG would be appointed by the Chief Justice 
of the Supreme Court, in consultation with the House of Representatives 
and the Senate. The IG's responsibilities would include conducting 
investigations of possible judicial misconduct, investigating waste 
fraud and abuse, and recommending changes in laws and regulations 
governing the federal judiciary. The bill would require the IG to 
provide the Chief Justice and Congress with an annual report on its 
activities, as well as refer matters that may constitute a criminal 
violation to the Department of Justice. In addition, the bill 
establishes whistleblower protections for judicial branch employees.
    Ensuring a fair and independent judiciary is critical to our 
Constitutional system of checks and balances. Judges are supposed to 
maintain an appearance of impartiality. They're supposed to be free 
from conflicts of interest. An independent watchdog for the federal 
judiciary will help judges comply with the ethics rules and promote 
credibility within the judicial branch of government. Whistleblower 
protections for judiciary branch employees will help keep the judiciary 
accountable. The Judicial Transparency and Ethics Enhancement Act will 
not only ensure continued public confidence in our federal courts and 
keep them beyond reproach, it will strengthen our judicial branch.
    Again, I want to thank Chairman Coble and his colleagues for 
allowing me to testify on this important bill.

    Mr. Coble. Without objection, it will be done. And we 
appreciate you being with us, Senator. We would be glad for you 
to stay, but I understand you are on a short leash.
    Senator Grassley. Thank you very much.
    Mr. Coble. Good morning again, ladies and gentlemen. We 
welcome you all to this important hearing before the 
Subcommittee on Crime, Terrorism, and Homeland Security to 
examine H.R. 5219, the ``Judicial Transparency and Ethics 
Enhancement Act of 2006,`` introduced by the Chairman of the 
House Judiciary Committee, Mr. Sensenbrenner.
    Integrity and accountability within our Federal courts is a 
critically important issue for all of us and has been for some 
time. In 2001, as Chairman of the Courts, the Internet, and 
Intellectual Property Subcommittee, I chaired a hearing on the 
operation of the Judicial Conduct and Disability Act of 1980 
and the relevant recusal statutes.
    The 1980 act created a decentralized framework of self-
regulation whereby complaints of judicial misconduct are 
reviewed by the chief judge of the relevant circuit or, in more 
serious cases, judicial councils within the circuit.
    We learned from the hearing that the complaint process was 
largely unpublicized and that transparency issues persisted, 
particularly with regards to conflicts of interest.
    As a follow-up to the 2001 hearing, Representative Howard 
Berman and I wrote to Chief Justice William Rehnquist offering 
several recommendations to improve the application of the 1980 
act and the recusal statutes. The Judicial Conference responded 
to two of those three recommendations in its September 2002 
report.
    In recent years, there have been a disturbing number of 
reports that a number of Federal judges--and I think I will say 
a limited number of Federal judges, not that many--who are 
continuing to violate ethical rules, including disclosure 
requirements, or are engaging in judicial misconduct.
    Equally troubling is the lackluster response from the 
circuits in self-policing this behavior. It is clear that we 
can no longer rely on--in my opinion, it is clear that we can 
no longer rely on the 1980 act, and I share the Chairman's 
concern on this issue.
    H.R. 5219 establishes an independent inspector general 
within the judicial branch who is appointed by and reports 
directly to the chief justice of the United States.
    The inspector general will conduct investigations of 
complaints of judicial misconduct; conduct and supervise 
audits; detect and prevent waste, fraud and abuse; and 
recommend changes in laws or regulations governing the judicial 
branch.
    The creation of an inspector general is not a radical idea. 
Inspectors general exist in over 60 executive agencies, boards 
and commissions, and Congress as well. They shine a light on 
the internal operations of these entities in order to prevent 
fraud and improve efficiency and accountability.
    There is no reason, it seems to me, why the judicial branch 
should be exempt from this type of oversight.
    As Chairman Sensenbrenner emphasized when he introduced the 
bill, the inspector general will not have any authority or 
jurisdiction over the substance of a judge's opinion--that is, 
the merits of the case. Judicial independence in rendering 
decisions is a critical component of the separation of powers 
that must not be tampered with.
    However, unethical behavior and misconduct must be taken 
seriously to maintain the public's confidence in the judiciary.
    And before I recognize the distinguished gentleman from 
Virginia, and on a personal note, I have only known one member 
of the U.S. Supreme Court personally, and that was the late 
Chief Justice Rehnquist. And I found him to be a superb jurist 
and a superb gentleman.
    I have known several district and circuit court judges, all 
of whom are superb. But there are some who miss the mark. We 
have Members of Congress who miss the mark. I guess there is no 
profession or vocation exempt from that.
    And I think that probably is what Mr.--I recall having 
read, Mr. Scott, of reckless extravagance of some judges in 
furnishing their chambers and their courtrooms, elaborate 
spending of taxpayers' money.
    These sort of things, I think, can probably be examined 
thoroughly and deliberately with the presence of an I.G.
    Having said that, I look forward to hearing the testimony 
from our distinguished panel.
    And I am pleased to recognize the distinguished gentleman 
from Virginia, and also welcome the Ranking Member of the full 
Committee, the distinguished gentleman from Michigan, Mr. 
Conyers.
    Mr. Scott?
    Mr. Scott. Thank you. Mr. Chairman, before we get started, 
in reviewing this bill, I was just wondering how the Crime 
Subcommittee got jurisdiction.
    Mr. Coble. Rather than give you a runaround, I will admit I 
don't know.
    Mr. Scott. Moving right along.
    Mr. Coble. But it was handed--the baton was handed to us, 
so we ran with it.
    Mr. Scott. Thank you, Mr. Chairman. Mr. Chairman, I am 
pleased to join you in convening the hearing on H.R. 5219, the 
``Judicial Transparency and Ethics Enhancement Act of 2006.''
    Mr. Chairman, I favor Congress conducting regular oversight 
over the administrative operations of the courts through 
reports, hearings and avenues of communication.
    I am in favor of Congress authorizing, but not requiring, 
the Judicial Conference to appoint an inspector general or 
other such officials to assist in their efforts to rein judges 
in who do not follow the rules and to develop reports to be 
sent to Congress and elsewhere that the conference might 
direct.
    But I am not in favor of Congress requiring the appointment 
of a judiciary I.G. in whose appointment Congress has a say and 
who reports to Congress as we might see fit, according to the 
bills that we may direct.
    I direct that such a congressionally influenced position 
would clearly offend traditional notions of separation of 
powers and comity between the legislative and judicial 
branches.
    We don't check with the executive or judicial branches when 
we select officers for the House, and it is insulting to think 
that they should have to consult with us when a judicial 
officer is appointed.
    Moreover, Mr. Chairman, I believe that the creation of such 
a position is unnecessary. If we are dissatisfied with the way 
the judiciary is addressing judicial discipline and other 
matters, we should notify the chief justice, as you, Mr. 
Chairman, and Ranking Member Berman did with Chief Justice 
Rehnquist when you were Chairman of the Courts Subcommittee.
    Mr. Chairman, you could give Chief Justice Roberts an 
opportunity to respond to any questions that we may have. 
Granted that the reports of judges taking and not reporting 
lavish, privately financed trips and of judges not reporting 
conflicts of interest as required, as well as failing to recuse 
themselves as appropriate, those reports are disturbing.
    While these matters require the judicial conference's 
attention, as well as our attention in an oversight capacity, 
there are a number of approaches available to Congress to 
satisfy itself that these issues are being appropriately 
addressed by the judiciary short of establishing a 
congressionally directed and selected judiciary inspector 
general.
    There is evidence that the Judicial Conference is 
addressing the issues, including the indications in a letter 
dated yesterday to this Subcommittee. More specific information 
is desired--if more specific information is desired, perhaps a 
letter to the chief justice requesting an update on the 
conference's progress would be more appropriate.
    The judicial branch is certainly not the only branch in 
Government with disturbing reports of inappropriately--of 
inappropriate finance--privately financed trips and conflicts 
of interest.
    There are continue to be a number of such reports regarding 
Members of Congress, despite actions taken by Congress over the 
years to address the problem, including the establishment of an 
inspector general.
    While the Congress has an oversight responsibility to see 
to it that the public resources it makes available to other 
branches are expended in a publicly accountable and proper 
manner, the oversight of ethics of individual employees of 
those branches is better left to the branches themselves, short 
of the necessity of use of Congress' impeachment powers.
    With these reservations, Mr. Chairman, I look forward to 
the testimony of our witnesses for their insight in the issues 
that will be raised by H.R. 5219.
    Thank you, Mr. Chairman.
    Mr. Coble. I thank the gentleman.
    And I say to my friend from Virginia I have just been 
advised that the bill initially was, in fact, assigned to the 
Courts Subcommittee, but upon request it was suggested that our 
Subcommittee preside over the hearing. So belatedly, I have an 
answer to your question, Mr. Scott.
    The chair is now pleased to recognize the distinguished 
Ranking Member, the gentleman from Michigan.
    Mr. Conyers. Thank you. Chairman Coble and Ranking Member 
Scott, I came by for this Committee hearing because it seems to 
me that, once again, we are considering proposed legislation 
that attacks the independence of the judiciary.
    Despite the fact that the Nation's founders meant for the 
judiciary to be free of partisan pressure and immune from 
political whims, this Administration and this Congress have 
pushed measures that subject courts to excessive oversight and 
strip them of their powers.
    What we would do here is create an inspector general for 
the judiciary authorizing the I.G. with subpoena powers to 
investigate misconduct by any Federal judge and recommend 
action by Congress or the Justice Department.
    The I.G. would also be empowered to recommend changes to 
laws affecting the judiciary. This is unwise. For the first 
time, an extrajudicial body would oversee the courts.
    Under the current regime, the courts themselves review 
allegations of misconduct and forward evidence of impeachable 
offenses, if there are thought to be any, to the House 
Judiciary Committee.
    In addition, if congressional proponents of an inspector 
general believe that serious abuses are occurring in the 
judiciary, we can hold--open investigations on the subject 
myself. No such congressional inquiries have been held.
    This is telling of the motivation, to me, behind this 
legislation. It appears that an inspector general has been 
proposed as a means of intimidating judges into political 
compliance. And that is my view. This would not be the first of 
such attempts, and I hope that it would possibly be the last.
    Now, the late Chief Justice Rehnquist appointed the 
judicial--created the Judicial Conduct and Disability Act Study 
Committee. And it was created to make a comprehensive study of 
the act governing judicial conduct and its administration, with 
a final report to Chief Justice Roberts expected very shortly.
    And so there have been a number of steps that have been 
taken by the courts to continue to police themselves, and I 
hope that we will develop a fuller understanding about the 
sensitivity of having an I.G. over the Federal courts itself.
    And I thank you for the opportunity to enter into this 
discussion with you.
    I thank the distinguished gentleman. Thank you, Mr. 
Conyers.
    Gentlemen, it is the practice of the Subcommittee to swear 
in all witnesses appearing before it, so if you would, please, 
stand and raise your right hand.
    [Witnesses sworn.]
    Mr. Coble. Let the record show that each of the witnesses 
answered in the affirmative.
    You may be seated.
    We have been joined as well by the distinguished gentleman 
from Massachusetts, Mr. Delahunt.
    Good to have you with us, Bill.
    Mr. Delahunt. Thank you very much.
    Mr. Coble. We have four distinguished witnesses, one of 
whom has already departed, with us today. And I will dispense 
with the introduction of Senator Grassley.
    Our second witness is Mr. Ronald Rotunda, George Mason 
University Foundation Professor of Law at the George Mason 
University School of Law, a school that is well-known, 
Professor, to my North Carolina people, since you all 
eliminated us from the basketball activity earlier this year.
    Professor Rotunda has authored and co-authored several 
books on ethics and constitutional law, including the most 
widely used course book on legal ethics, ``Problems and 
Materials on Professional Responsibility.''
    He has been a member of the publications board of the 
American Bar Association Center for Professional Responsibility 
since 1994, is a past member of the ABA Standing Committee on 
Professional Discipline, and served as liaison to the ABA 
Standing Committee on Ethics and Professional Responsibility.
    Professor Rotunda is a graduate of both Harvard College and 
the Harvard University School of Law.
    Our second witness is Mr. Arthur Hellman, who we have seen 
before.
    Good to have you back, Professor.
    Mr. Hellman. It is good to be back, sir. Thank you.
    Mr. Coble. Sally Ann Semenko Endowed Chair and professor of 
law at the University of Pittsburgh School of Law. Professor 
Hellman is one of the Nation's leading academic authorities on 
the Ninth Circuit Court of Appeals where he served on the 
Appeals Evaluation Committee from 1999 to 2001.
    He is the author of numerous articles and books, including 
``Federal Courts: Cases and Materials on Judicial Federalism 
and The Lawyering Process,'' which he co-authored in 2005.
    Prior to joining the University of Pittsburgh Law faculty, 
he was deputy executive director of the Commission on Revision 
of the Federal Court Appellate System. Professor Hellman 
received his B.A. from Harvard College and a J.D. from the Yale 
University School of Law.
    Our final witness today is Mr. Charles Geyh, professor of 
law and Charles L. Whistler Faculty Fellow at the Indiana 
University School of Law at Bloomington. Professor Geyh is the 
author of ``When Courts and Congress Collide: The Struggle for 
Control of America's Judicial System,'' and is currently a co-
reporter of the American Bar Association Joint Commission to 
Evaluate the Model Code of Judicial Conduct.
    He has previously served as Director of the American 
Judicature Society Center for Judicial Independence, Reporter 
to the ABA Commission on Separation of Powers and Judicial 
Independence, and Counselor to the House Judiciary Committee.
    Professor Geyh received his undergraduate and law degrees 
from the University of Wisconsin.
    Now, I apologize to you all for the delayed introduction, 
but I think it is important for all of us to be familiar with 
the impressive credentials that witnesses bring before this 
Committee, and that is why I went into some detail.
    Gentlemen, we are on a short leash as well. There will be a 
vote on the House floor, I am suspecting probably within 30 
minutes to 45 minutes. So as you all have previously been 
requested, if you could confine your testimony to on or about 5 
minutes.
    And when you see the amber light appear on the panel in 
front of you, that is your warning that you have a minute to go 
before the ice becomes thin on which you are skating, but Mr. 
Scott and I will not be unduly harsh with you. But if you could 
comply with that 5-minute rule, we would be appreciative.
    And, Professor Rotunda, why don't we start with you?

  TESTIMONY OF RONALD ROTUNDA, PROFESSOR OF LAW, GEORGE MASON 
                    UNIVERSITY SCHOOL OF LAW

    Mr. Rotunda. Yes. Thank you very much. It is a pleasure to 
be here.
    I am pleased to offer this testimony on behalf of H.R. 
5212, the proposed inspector general act. I think it offers 
modest reform that will keep our judiciary independent, because 
nobody favors a dependent judiciary, and will keep our 
judiciary accountable, because no one favors a judiciary that 
is above the law.
    I agree with Professor Geyh. In his written testimony, he 
says that this proposed bill will address ``a bona fide 
problem.'' And he adds, ``If the judiciary is unwilling to 
reform itself in the teeth of evidence that further reform is 
necessary,'' he says then Congress should take stronger 
measures.
    I disagree. I think Congress can take stronger measures 
now, though, of course, it should have a dialogue with Justice 
Breyer and the Committee he is on.
    Two general reactions have accompanied this bill. I think 
first people ask why we have waited so long to have an 
inspector general for the court. It exists throughout the 
executive branch. There are now 57 statutory inspectors 
general, plus others done by regulation.
    The duties are to prevent fraud, waste, abuse and 
misconduct, report violations of civil rights or civil 
liberties. The House of Representatives has its own inspector 
general. When Speaker Gingrich became speaker, he ordered an 
outside audit of the House, and outside firms conducted it.
    One engages in such conduct not because you think there is 
evil afoot, but just to assure everyone that things are fine. 
Outside auditors perform that function well. Inspector generals 
do that as well. I really don't see the argument that inspector 
generals should not at least have an auditing function over the 
courts.
    The proposed inspector general act does not--it does 
important things, but it is not what some of its detractors 
would suggest. It would conduct and supervise audits and 
investigations, prevent fraud and detect waste, recommend 
changes in law and regulations governing the judicial branch--
anyone can do that, including the I.G.--and then conduct 
investigations relating to the judicial branch, including 
possible misconduct that may require oversight or other action 
by Congress.
    Very little would do that, but some things, like proposed 
changes in the law you could see coming up periodically. These 
proposals are salutary. They will protect--the inspector 
general will protect judges from frivolous or false charges. No 
organ of Government should be above the law.
    The second reaction to this proposal is also surprising. 
Some people greet the law the way Dracula would greet garlic. 
They shy away. Justice Ginsberg is quoted in the papers as 
saying she finds the proposal ``a really scary idea.''
    I don't think the sky is falling. I think opponents do not 
attack the bill that is actually proposed but one that they 
fear or imagine. It is not going to limit judicial dependence. 
If it did, I wouldn't testify in favor of the bill.
    I think it will strengthen judicial independence, because 
it gives people greater faith that if there are problems the 
inspector general will deal with them, and that the--what is 
becoming more common character assassinations of Federal judges 
the inspector general could say ``I have investigated that 
there is no problem''--be done with it.
    There is actually a plea for statutory change by the judges 
themselves. I refer to this in my written statement, which is 
longer, but it is the opinion of the Judicial Conference on 
April 28 of 2006.
    The majority held that under the Federal statute it had no 
jurisdiction to proceed with discipline because the chief 
circuit judge of the Ninth Circuit and the Judicial Conference 
of the Ninth Circuit did not follow the mandatory statutory 
procedures.
    The majority said that we can do nothing because the other 
judges violated the statute. And then the majority of judges 
requested that Congress enact new legislation to solve this 
problem.
    I checked; nobody from Congress that I know of has gotten 
any requests from the judges for the statutory change. But this 
Committee or these judges asked for it. I think this 
legislation is an appropriate response.
    Judge Winter's dissent in that case, joined by Judge 
Dimmick, warned that allowing the judges to police themselves 
is not working. He said, and I am quoting now, ``A self-
regulatory procedure suffers from the weakness that many 
observers will be suspicious that complaints against judges 
will be dissolved, will be disfavored. The Committee's decision 
in this case can only fuel such suspicions.''
    I don't--I think in 99 percent of the cases against judges 
are dismissed anyway, and I think under an inspector general it 
will be about the same percentage. But one or two may come out 
differently. That will be important.
    And even more important, we will be satisfied that the 
other 99 percent are properly dismissed, because the inspector 
general would be the one agreeing with the courts.
    The judge later added that the required statutory procedure 
was not followed. The disposition of the present matter is 
therefore not a confidence-builder. Sadly, he is correct.
    I think it is time for a change. When we use a system and 
it doesn't work, our response should not be to invoke a catch-
phrase. Our response should be to create a system that will 
work.
    Now, if the Federal courts had an inspector general, we 
would have more openness. People would not assume that judges 
are above the law. I have no doubt that the great majority of 
cases are without merit. The inspector general will give us 
assurance that the law is followed.
    Professor Steven Lubet of Northwestern University has 
pointed out--quoting again--``Federal judges have more 
insulation than anyone in American political life. A judge with 
life tenure needs less protection, not more than an ordinary 
citizen.''
    Now, under the proposed law, the chief justice appoints the 
inspector general. He is appointed by the chief. Congress has 
no power to remove anybody except by impeachment. The Senate 
doesn't confirm the chief justice--the inspector general. That 
is just left up to the chief justice.
    The inspector general reports to the chief justice. It is 
true, he files a report with Congress. That doesn't mean he is 
under the thumb or reports to Congress any more than the 
President of the United States is under the thumb of Congress 
because he is required by the Constitution to give a state of 
the union report every year.
    It is a fairly modest bill. Maybe there is some disputes 
about language that can be worked out. But I think it is going 
to be a salutary role for the courts. It will increase their 
independence and not decrease it.
    Thank you very much.
    [The prepared statement of Mr. Rotunda follows:]

                Prepared Statement of Ronald D. Rotunda




    Mr. Coble. Thank you, Professor Rotunda.
    Professor Hellman?

 TESTIMONY OF ARTHUR HELLMAN, PROFESSOR OF LAW, UNIVERSITY OF 
                    PITTSBURGH SCHOOL OF LAW

    Mr. Hellman. I thank you, Mr. Chairman.
    You know, Mr. Chairman, as I sit here this morning, it is 
impossible not--for me not to think back to that hearing which 
you have already mentioned that you chaired in November 2001 on 
the operation of the judicial misconduct statutes.
    If at that hearing you had asked me whether any substantial 
modifications were required in the existing arrangements that 
govern judicial discipline and judicial disqualification, I 
would have said no.
    But three recent developments suggest a different 
conclusion today. First, there is the unfortunate episode that 
has already been mentioned of the misconduct complaint against 
Judge Manual Real of the Central District of California.
    Professor Rotunda in his statement has described that 
episode in some detail, and I will not retrace that ground 
myself. What seems clear is that the episode has revealed a gap 
in the procedures for considering complaints against Federal 
judges. And again, Professor Rotunda has described that gap.
    Well, you might say that is just one episode, but a single 
widely publicized episode can create grave public doubt about 
the effectiveness and even the legitimacy of the process.
    The episode also reveals a lack of transparency. Although a 
special Committee has now been appointed, the order creating 
the Committee cannot be found in any of the places where you 
would expect to find it.
    The second set of developments involves judicial 
disqualification and the conflict of interest statutes. At the 
2001 hearing there was substantial evidence that raised 
questions about some judges'--and as you have properly said, 
some judges'--compliance with the laws governing 
disqualification.
    And you, Mr. Chairman, as you have already mentioned--you 
and Ranking Member Berman sent a bipartisan letter to Chief 
Justice Rehnquist urging the Judicial Conference to require all 
Federal courts to adopt the Iowa model for posting conflict 
lists on court Web sites.
    The Judicial Conference did not follow that suggestion. And 
now, in 2006, history repeats itself with disturbingly similar 
allegations, this time against Judge Payne and Judge Boyle. As 
Yogi Berra might say, it is deja-vu all over again. And the 
consequences are felt not just by those particular judges, but 
by the judiciary as a whole.
    Finally, there is the Breyer Committee that--that we have 
heard about here already. And Professor Geyh suggests that 
Congress should wait for the committee's report rather than 
proceed to consider legislation now.
    Now, ordinarily, I would agree with that, because I think 
we can learn a lot from such a distinguished group of judges. 
But we have been waiting for quite some time. And that 
committee was formed more than 2 years ago.
    And since then, as far as I am aware, we haven't heard a 
peep. There have been no hearings, no announcements inviting 
people to express their views or give their experiences with 
the process, and of course, no report and no recommendations 
for improving the operation of the misconduct statutes.
    Under those circumstances, I think it is reasonable here in 
this Subcommittee to consider the proposal that is on the 
table, namely H.R. 5219.
    Now, as has already been discussed, that bill would create 
an inspector general for the Federal judiciary. And I think 
that the sponsors of that bill have taken great pains to design 
this new mechanism in a way that respects the status of the 
judiciary as a co-equal and independent branch of Government. 
And that point is developed at some length in my testimony.
    But with my limited time here, what I would like to do is 
to offer a couple of suggestions for fine-tuning the bill, 
because I do think it can be improved to address some of the 
concerns.
    My own principal concern is that the proposed new section 
1023(1) of title 28 does not adequately explain how the 
functions of this new office would be integrated into the 
existing statutory structure for dealing with complaints 
against judges.
    In particular, the bill could be read as authorizing the 
I.G. to carry out his or her investigations simultaneously with 
those of the chief judge, the circuit council or even the 
Judicial Conference of the United States. And that kind of 
duplication of effort would be wasteful, it would be 
inefficient, and it would be confusing.
    Now, I do think that there is a pretty simple fix for that. 
I have outlined it in my testimony, and I hope we can talk a 
little bit about it here. But basically, it would make clear 
that the I.G.'s responsibilities begin after the circuit has 
completed its work.
    Another suggestion I have is that the bill should make more 
explicit the responsibility of the I.G. for promoting 
transparency within the judiciary in matters involving 
misconduct or possible conflicts of interest. There is a lot of 
work to be done there in transparency. I hope we have a chance 
to talk about those and the other suggestions I have offered.
    And once again, I appreciate the chance to express my views 
today. Thank you.
    [The prepared statement of Mr. Hellman follows:]

                Prepared Statement of Arthur D. Hellman




    Mr. Coble. Thank you, Professor.
    Mr. Geyh?

TESTIMONY OF CHARLES GEYH, PROFESSOR OF LAW, INDIANA UNIVERSITY 
                  SCHOOL OF LAW AT BLOOMINGTON

    Mr. Geyh. Mr. Chairman, I would like to begin on a personal 
note. I served as counsel to Bob Kastenmeier in the early 
1990's on the Courts Subcommittee and remember you fondly as 
someone who regardless of whether you agreed with Mr. 
Kastenmeier and regardless of what went on in that hearing room 
were always a consummate gentleman.
    I admired it then. I admire it now. It makes it a real 
privilege to be here.
    Mr. Coble. Well, you will recall I served as--in the 
minority under Chairman Kastenmeier. He was indeed a superb 
Chairman of this Subcommittee and, I am told, still lives in 
the area. Is that correct?
    Mr. Geyh. He does indeed. I saw him as recently as a week 
ago.
    Mr. Coble. Thank you.
    Mr. Geyh. The one thing I would like to add to this hearing 
that I think the other two witnesses have not is a little bit 
of context. These are troubled times for the relationship 
between judges and legislators.
    We have a number of legislators who are very concerned 
about the extent to which, you know, certain judges have 
decided cases in ways that they are deeply troubled by. And so 
we see proposals being floated to impeach judges in some 
instances, to take away their jurisdiction, to dismantle courts 
altogether and to cut judicial budgets.
    And this isn't the first time that we have seen a period of 
intense anger directed at courts and judges. In fact, it has 
happened in every generation since the founding of the nation.
    And the funny thing about it--not funny; but an important 
thing happened. Beginning in the 19th century, some of--
sometimes Congress did make good on these threats to control or 
curb the courts in significant ways.
    Beginning in the late 19th century, however, something 
important happened, which was Congress began to think twice 
about it, that as our constitutional culture matured and 
Congress and the people it represented began to say you know, 
this kind of control is inappropriate in an environment where 
we want our judges to be independent enough and impartial 
enough to follow the law.
    And so these mechanisms of intimidation were abandoned. 
Does that mean that Congress immediately stopped being 
concerned about judicial accountability? Not at all. Beginning 
in the late 19th century Congress began looking at ways to make 
the judiciary accountable by making it accountable to itself.
    The first thing it did in the late 19th century was create 
a big court of appeals structure, avowedly for the purpose of 
ending what it called ``judicial despotism'' by the district 
courts.
    It then went ahead and created the Judicial Conference to 
let judges govern themselves, the administrative office, to 
give it administrative control over the judiciary and 
ultimately, in 1980, under--with you in Congress, a measure to 
have judges discipline their own. This is the--the trend that 
we have seen.
    And against that backdrop, I think 5219 is a little bit 
troubling, more troubling than the other witnesses find it, 
because it really represents a move away from this century-long 
tradition where we have entrenched norms, you know, enabling 
the judiciary to regulate itself, and toward something else, in 
which we give--take regulatory power away from the judiciary 
and hand it to an inspector general and, indirectly, we give it 
to Congress.
    Now, this is doubly troubling, it seems to me, because in 
this context we have a concern that notwithstanding the best 
intentions of the drafters, this bill can be used to go after 
the judiciary because of its decisions.
    I realize that is not Chairman Sensenbrenner's intention. 
But if you read the language of the bill, it says quite 
specifically that it authorizes the inspector general to 
``conduct investigations of matters pertaining to the judicial 
branch.''
    And it would seem to me that the decisions judges render 
are within the scope of a matter pertaining to the judicial 
branch. Now, we can get into legislative parsing, and it is 
possible that we could read that out of the bill.
    But my concern is that in this current environment, where 
there are some Members of Congress--not in this room, but some 
Members of Congress--who are interested in using any way they 
can to retaliate against judges, this bill could be misused for 
that purpose.
    I am even more troubled by the fact that the role the 
Congress plays in this bill is considerable, that Congress has 
some say over who is going to be appointed.
    It has some say over what is investigated and on what 
terms, and when the reports are issued, which culminates, I 
think, in giving Congress the latitude to determine who is 
being investigated, which adds and opens another door to 
retaliatory strikes against individual judges.
    Now, some can say this is much ado about nothing, that we 
have inspectors general in the executive branch and they don't 
have any of these problems. My point here is simply to say this 
isn't the executive branch.
    This is an independent judicial branch that is different 
from an executive branch agency and where we ought to be a 
little more concerned about its independence.
    More importantly, and I think this is the point I want to--
I want to emphasize--unlike the judiciary, the executive branch 
has weapons at its disposal to make sure that Congress doesn't 
overreach, that Congress doesn't try to erode the independence 
of the inspector general.
    And indeed, the history of the inspectors general and the 
executive branch that is, you know, included in a book I 
recently read from the Brookings Institution is all about 
Congress and the president jockeying for influence in such a 
way that the inspector general is preserved in his 
independence, so that, as one inspector general put it, we 
straddle a barbed-wire fence between these two branches.
    That barbed-wire fence isn't there with the judiciary, 
which lacks the power to push back if Congress erodes its--if 
Congress pushes too hard. And as a consequence, I worry about 
that.
    Does that mean we do nothing? No. I think both Professor 
Rotunda and Professor Hellman have--and you, Chairman, have 
identified some serious problems that we need to grapple with. 
The first step I think is to hear what the judiciary has to say 
about these specific problems.
    There are not--it is not just the Breyer commission, but 
the commission on the judicial branch and the commission on 
codes of conduct are actively looking at these matters now. If 
the point is they need to expedite their inquiry, Congress 
should tell them that. And then at that point, we can decide 
whether stronger medicine is required. And it may be.
    A bill like this may ultimately be necessary, but not now. 
Thank you.
    [The prepared statement of Mr. Geyh follows:]

                 Prepared Statement of Charles G. Geyh

    My name is Charles G. Geyh. I am a Professor of Law at Indiana 
University at Bloomington, the author of When Courts & Congress 
Collide: The Struggle for Control of America's Judicial System 
(University of Michigan Press 2006), and coauthor, (with Professors 
James Alfini, Steven Lubet, and Jeffrey Shaman) of the forthcoming 
fourth edition of Judicial Conduct and Ethics (Lexis Law Publishing 
2007). I am currently co-Reporter to the ABA Joint Commission to Revise 
the Model Code of Judicial Conduct, and previously served as consultant 
to the National Commission on Judicial Discipline and Removal.
    H.R. 5219, the Judicial Transparency and Ethics Enforcement Act of 
2006,'' has a laudable goal: to make the federal judiciary better 
accountable for its budget and for the ethical transgressions of its 
judges. Pursuing that goal by creating an inspector general for the 
federal judiciary, however, is highly problematic for at least two 
reasons:

          First, inspector general investigations can and 
        likely will be exploited to punish judges for their judicial 
        decisions, statements of bill sponsors to the contrary 
        notwithstanding, thereby jeopardizing core judicial 
        independence norms that Congress has respected for well over a 
        century.

          Second, inspectors general are commonplace within 
        executive branch agencies, but the judiciary is not an agency--
        it is an independent branch of government. To the extent that 
        inspectors general for executive branch agencies have performed 
        with independence and integrity, it is for reasons that the 
        judicial branch is ill-equipped to replicate, because the 
        judiciary lacks the powers of the executive branch to thwart 
        Congressional intrusions into its inspector general 
        investigations.

    Although I have serious reservations about H.R. 5219, the bill 
serves the salutary purpose of communicating an important message to 
the judiciary: that Congress is serious about the judiciary's ethical 
and fiscal responsibilities and that the judiciary should be equally 
so. Recent events reported in the press signal possible deficiencies in 
the judiciary's ethics rules and disciplinary framework. The preferred 
approach is to work cooperatively with the courts to address the 
concerns that animate H.R. 5219, rather than to impose a potentially 
problematic solution on an unwilling judiciary. Such a conversation 
should await the results of three ongoing projects within the judicial 
branch--Justice Stephen Breyer's Commission on the disciplinary 
process; the Judicial Branch Committee's study of privately funded 
seminars, and the Codes of Conduct Committee's review of recusal 
issues--and take place in the shadow of this bill, giving Congress the 
leverage it needs to ensure meaningful reform.

                               BACKGROUND

    In the past few years, members of Congress have been highly 
critical of federal judges and their decisions, and have proposed a 
variety of reforms calculated to punish ``judicial activists'' and curb 
their excesses. Some have proposed to impeach offending judges.\1\ 
Others have advocated defiance--one bill would deprive the executive 
branch of the resources to enforce judicial orders in specified 
cases.\2\ One suggested that Congress disestablish uncooperative 
courts,\3\ while another proposed to cut the judiciary's budget to 
``get their attention,'' \4\ and many have pressed for legislation to 
deprive the courts of jurisdiction to hear specific kinds of cases on 
politically sensitive subjects.\5\
---------------------------------------------------------------------------
    \1\ Ralph Hallow, Rpublicans out ti Impeach ``Sctivist'' Jurists, 
Washington Times, March 12, 1997, at A1.
    \2\ Stephen Dinan, House Targets Judicial ``Errors'' With a New 
Strategy; Votes to Stop Enforcement of Rulings on Pledge, Posting,  
Washington Times, July 29, 2003 at A1.
    \3\ Rick Klein, DeLay Apologizes for Blaming Federal Judges in 
Schiavo Case but House Leader Calls for Probe of ``Judicial Activism,'' 
Boston Globe, April 4, 2005.
    \4\ Ruth Marcis, Booting the Bench, Washington Post, April 11, 
2005.
    \5\ Alexander Bolton, Courts May Be Stripped on the Pledge, The 
Hill, September 16, 2004 at 1.
---------------------------------------------------------------------------
    This is not the first time that federal judges have weathered a 
sustained period of criticism.\6\ The first occurred at the turn of the 
nineteenth century when Thomas Jefferson succeeded John Adams as 
president and the Jeffersonian Republican Congress dedicated itself to 
undoing damage they perceived the outgoing Federalists as causing the 
federal courts, by disestablishing judgeships and impeaching unpopular 
judges. A generation later, President Andrew Jackson and his supporters 
in Congress locked horns with the Marshall Court over the supremacy of 
the Supreme Court's authority to impose its interpretation of the U.S. 
Constitution on the state and federal governments, and several states 
openly defied Court orders. Another generation after that, a radical 
Republican Congress squared off against the Supreme Court in the 
aftermath of the Civil War over a number of issues pivotal to the 
Reconstruction agenda, and stripped the Supreme Court of jurisdiction 
to hear a pending case. Roughly twenty-five years later, near the turn 
of the twentieth century, congressional populists and progressives 
advocated a variety of means to restrain the courts from invalidating 
legislative reforms at the state and federal levels. During the 1930s, 
an exasperated Franklin Roosevelt invited Congress to pack the Supreme 
Court with additional justices to thwart the Court's conservative 
majority that had struck down several New Deal programs. The passage of 
another generation saw members of the Warren Court targeted for 
impeachment, and bills introduced to curtail federal court 
jurisdiction, all or in part because of their liberal-leaning decisions 
in civil rights and civil liberties cases.
---------------------------------------------------------------------------
    \6\ For an elaboration upon these cycles of anti-court sentiment 
and the emergence of judicial independence norms, seeCharles Gardner 
Geyh, When Courts and Congress Collide: The Struggle for Control of 
America's Judicial System 51-113 (2006).
---------------------------------------------------------------------------
    In the 19th Century, Congress sometimes made good on these cyclical 
threats to impeach errant judges, disestablish their courts, or strip 
them of jurisdiction. Gradually, however, Congress--and the people it 
represented--came to appreciate that such threats were antithetical to 
an emerging Constitutional culture that respected the role independent 
judges play in American government and that rejected draconian 
proposals to manipulate the decisions that judges make. Although angry 
members of Congress have continued to make such proposals every 
generation or so, they are almost never implemented, as judicial 
independence norms have become more fully entrenched.
    That these heavy-handed means of court control gradually fell into 
disuse is not to suggest that Congress became indifferent to judicial 
accountability. Rather, Congress ultimately decided that the best way 
to balance the needs of judicial independence and accountability was to 
delegate to the judiciary the authority it needed to be better 
accountable to itself.\7\ And so, in 1891, Congress created the circuit 
courts of appeals for the express purpose of curbing district court 
despotism by means of appellate review. In 1922, it created the 
precursor to the Judicial Conference of the United States, thereby 
enabling the judiciary to govern itself as a branch; in 1934 it 
delegated to the courts the power to make their own procedural rules; 
in 1939, it created the Administrative Office of U.S. Courts, thereby 
rendering the judiciary accountable for its own budget; and in 1980, it 
established a system for regulating judicial misconduct in which judges 
were authorized to discipline their own.
---------------------------------------------------------------------------
    \7\ For a discussion of this century-long project to make the 
judiciary better accountable to itself, see id. at 92-110
---------------------------------------------------------------------------
      H.R. 5219 CAN AND LIKELY WILL BE EXPLOITED TO PUNISH JUDGES 
                      FOR THEIR JUDICIAL DECISIONS

    At first blush, H.R. 5219 may look like another proposal in keeping 
with the modern trend toward equipping the judiciary with the tools it 
needs to make it better accountable to itself, by creating a Chief 
Justice-appointed inspector general ``for the judicial branch'' who 
bill sponsors have taken pains to emphasize ``will not have any 
authority or jurisdiction over the substance of a judge's decisions.'' 
A closer look, however, reveals that notwithstanding the best 
intentions of its drafters, this legislation could be employed by 
members of Congress to manipulate judges and their decision-making in 
patently unacceptable ways.
    In evaluating the impact of proposed legislation on the courts, 
context matters. When President Franklin Roosevelt introduced his 
Court-packing plan in 1937, it was on the pretext that federal judges 
were elderly, had fallen behind in their work, and needed additional 
help. Superficially, then, his was an innocuous plan to improve the 
efficient operation of the courts. In context, however, this was an 
Administration furious with Supreme Court decisions invalidating New 
Deal legislation, and intent on finding a way to get around those 
decisions, and so--notwithstanding the President's explanation--the 
court-packing plan was generally understood as a direct assault on the 
judiciary's autonomy. Context matters with H.R. 5219 too. This is not a 
sympathetic Congress that is looking for ways to help the courts better 
administer themselves. This is an angry Congress that is dismayed with 
federal judges generally, with their autonomy, with the outcomes of 
cases that they have decided, and with the way they run their shop. 
When, in 2004, Chairman Sensenbrenner addressed the Judicial Conference 
on the relationship between Congress and the courts, he quite pointedly 
called attention to two recent disciplinary matters that in his view 
``raise[] profound questions with respect to whether the Judiciary 
should continue to enjoy delegated authority to investigate and 
discipline itself,'' adding that ``If the Judiciary will not act, 
Congress will.'' The next year, when Chairman Sensenbrenner first 
elaborated on his proposal to create an inspector general for the 
judiciary, it was in the context of a speech at Stanford in which he 
expressed his dismay for ``judicial activism'' but pronounced 
impeachment too ``extreme'' a remedy, before adding in the very next 
sentence that ``[t]his does not mean that judges should not be punished 
in some capacity for behavior that does not rise to the level of 
impeachable conduct'' and hailing judicial discipline as the 
appropriate solution. Perhaps Chairman Sensenbrenner did not mean to 
imply that judicial discipline was an appropriate remedy for 
``activist'' decision-making, but in the larger context of an angry 
Congress looking for ways to diminish the courts' autonomy and control 
judges and their decisions, if H.R. 5219 can be construed to authorize 
investigations into judicial decision-making, odds are that some 
members of Congress will seek make it happen.
    H.R. 5219 is indeed written broadly and ambiguously enough to 
authorize inquiries into judicial decision-making:

          Section 1023 authorizes the Inspector General to 
        ``conduct investigations of matters pertaining to the Judicial 
        Branch, including possible misconduct in office of judges and 
        proceedings under chapter 16 of this title, that may require 
        oversight or other action within the Judicial Branch or by 
        Congress.'' It would certainly seem that a judge's decisions 
        would fall within the ambit of ``matters pertaining to the 
        judicial branch,'' unless the ``including'' clause that follows 
        is intended to limit applicable ``matters'' to those involving 
        judicial misconduct or proceedings under Chapter 16. While the 
        latter construction is possible, it is strained and odd-
        seeming, because it would mean that the section conferred a 
        sweeping investigatory mandate in one clause only to take it 
        away in the next.

          Even if pertinent investigations were limited to 
        questions of ``misconduct in office by judges,'' a judicial 
        decision in which a judge rendered a decision by allegedly 
        disregarding his oath to follow the law and substituting his 
        own personal or political predilections, might well qualify as 
        a form of misconduct. Indeed, Canon 3A of the Code of Conduct 
        for U.S. Judges provides that ``A judge should be faithful to 
        and maintain professional competence in the law.'' The judge 
        whose decision arguably reflects a lack of competence or 
        fidelity to the law would thus seem to fall within the zone of 
        inquiry. It is possible to limit the construction of section 
        1023 still further to confine ``misconduct in office'' to 
        matters actionable under Chapter 16--which calls for the 
        dismissal of complaints related to the merits of judicial 
        decisions. If, however, the objective is to place judicial 
        decision-making clearly outside the scope of inspector general 
        inquiries, the bill should say so with clarity.

          Finally, even assuming that a judge's decisions are 
        technically outside the scope of section 1023, angry members of 
        Congress may agitate for investigations targeting unpopular 
        judges, ostensibly on the grounds that the judges in question 
        have mismanaged their budgets or engaged in ethical 
        improprieties independent of their decisions. In this context, 
        heightened scrutiny is itself a form of Congressional 
        retaliation.

   THE JUDICIARY LACKS THE POWERS OF THE EXECUTIVE BRANCH TO THWART 
 CONGRESSIONAL OVERREACHING INTO ITS INSPECTOR GENERAL INVESTIGATIONS.

    Proponents of H.R. 5219 have pointed to the success of inspector 
general programs within administrative agencies as evidence of their 
potential value within the judiciary. The judiciary, however, is not an 
administrative agency. It is a separate and independent branch of 
government--and one that lacks the powers at the executive branch's 
disposal to resist Congressional overreaching.
    H.R. 5219 gives Congress a significant role to play in the workings 
of the proposed office of inspector general for the federal judiciary. 
First, under Sec. 1022, the Chief Justice appoints the inspector 
general ``after consultation'' with Congressional leaders. Although the 
Chief Justice's nominee may not technically require Congressional 
approval, in the current political climate such approval will be a 
practical necessity. Second, in Sec. 1023(1), the ambit of the 
Inspector General's duties are defined to reach ``matters pertaining to 
the judicial branch . . . that may require oversight or other action . 
. . by Congress.'' Third, Sec. 1025(a)(1) directs the Inspector General 
to make annual reports to Congress, while Sec. 1025(a)(2) directs the 
Inspector General to ``make prompt reports to . . . Congress on matters 
that may require action by [it].''
    Taken together, these powers would give Congress the leverage to 
influence who is named Inspector general, which judges are targeted for 
investigation, what kinds of information the inspector general provides 
to Congress, and when. When Congress intrudes too far on the 
prerogatives of inspectors general within the executive branch, the 
executive branch is well equipped to push back, given the President's 
considerable political influence and his veto power in the legislative 
arena. The history of inspectors general within administrative agencies 
is thus one of constructive tension between the legislative and 
executive branches as they jockey for influence.\8\
---------------------------------------------------------------------------
    \8\ For a history of inspectors general within the executive 
branch, see Paul C. Light, Inspectors General and the Search for 
Accountability (1993).
---------------------------------------------------------------------------
    The judiciary, however, lacks the power to push back, and is thus 
far more vulnerable to Congressional incursions upon its autonomy, 
where, as here, the legislation affords Congress so significant a role 
to play in the inspector general's operations. The only weapon at the 
judiciary's disposal to fend off such incursions is judicial review--
which all agree should be used sparingly, and which, if employed in 
this context, could precipitate a constitutional crisis.

                               CONCLUSION

    H.R. 5219 seeks to address a bona fide problem. Federal judges have 
come under fire for their attendance at expense-paid seminars, their 
failure to disqualify themselves from cases in which recusal would seem 
to be warranted, the absence of ethical standards applicable to the 
Supreme Court, and the failure of the disciplinary process to call 
judges to task in cases where it was arguably warranted. For the 
reasons specified above, H.R. 5219 is an ill-advised solution to these 
problems that would jeopardize a tradition of restraint in the 
relationship between courts and Congress that is well over a century in 
the making. The preferred approach is to await the report of Justice 
Breyer's Commission together with the results of related efforts by 
Judicial Conference Committees on the Judicial Branch and the Codes of 
Conduct, and then work cooperatively with the Judicial Conference to 
meet Congress's remaining concerns. If the judiciary is unwilling to 
reform itself in the teeth of evidence that further reform is 
necessary, that may be the time to consider stronger medicine. But not 
now.

    Mr. Coble. Thank you, Professor Geyh.
    Thanks, Professors, all.
    Now, we imposed the 5-minute rule against us as well, so we 
will commence our line of questioning.
    Professor Rotunda, this may be a rhetorical question, but I 
want to get it on the record. Critics argue that the creation 
of a judicial inspector general is overreaching by Congress and 
threatens the independence of the third branch. What say you to 
that?
    Mr. Rotunda. That is not what this bill proposes. It has 
got--under the bill, the chief justice appoints the inspector 
general. The duties of the inspector general are limited. 
Congress has no role that concerns the inspector general. There 
is talking back and forth. That can't possibly be wrong or 
erode independence.
    I think efforts by Congress to restrict the courts' 
jurisdiction, to increase the number of judges on the Supreme 
Court like FDR's court-packing plan--that erodes judicial 
independence. This is simply giving a modest amount of judicial 
accountability.
    Mr. Coble. Professor Hellman, in your testimony you alluded 
to a gap in the current Federal misconduct statutes. Elaborate 
a little more in detail on that, A. And is it your belief that 
the bill before us would close this gap?
    Mr. Hellman. Thank you, Mr. Chairman. Yes. The gap 
basically is one that occurs in those situations where the 
circuit processes have not worked in a specific way, that the--
that there--there is an issue that should have been heard, an 
allegation of misconduct that should have been heard by a 
special committee because there are issues of fact that are 
open to dispute. The statute as amended in 1980--amended in 
2002 requires that.
    If that happens, if the chief judge of the circuit doesn't 
appoint a special committee, even though he or she should, and 
if the circuit council ratifies that by dismissing the 
complaint, there is no appeal to the circuit conference.
    The circuit--five members of the panel were frustrated 
that--the three dissenters more than the two in the majority, 
who thought there was just nothing they could do.
    This bill can be used to fill that gap. I think it has to 
be written a little bit more carefully to do that, but it can 
make clear that there is a channel of review for those cases, 
and I think that will give the people substantially more 
confidence in the process.
    Mr. Coble. Thank you, sir.
    Professor Geyh, how will a judicial inspector general be 
exploited to punish judges in their judicial decisions, if, in 
fact, they will be exploited, A? And B, cannot Members of 
Congress currently file complaints alleging judicial misconduct 
under the 1980 act?
    Mr. Geyh. Fair questions, Mr. Chairman. I think the first 
point is that the bill itself says the inspector general can 
conduct investigations of matters pertaining to the judicial 
branch.
    That means that if an angry Member of Congress says I don't 
like this particular decision, that would be a matter falling 
within the judicial branch.
    More specifically, though, let's even limit it to the 
qualifying clause that it deals with issues of misconduct. 
Canon 3A of the Code of Conduct for United States judges says 
judges must be faithful to the law.
    If a Member of Congress says this judge is an activist 
judge who has disregarded the law, we now ought to investigate 
that as a violation of Canon 3A, and that is a form of 
misconduct that will properly fall within the scope of this 
bill. That is what worries me.
    Even if that is avoided, I think the larger problem is that 
if there is a decision that Members of Congress don't like, you 
can target that judge for an investigation, irrespective of 
whether you are going after his decisions.
    You can say this judge decided case X in Y way, we now want 
to have it investigated because we think he is mismanaging his 
budget or because his ethical transgressions in other cases are 
worthy of investigation.
    It is true that Congress can now file complaints, but this 
gives the Congress a formal avenue with which to go to the 
inspector general and start directing the inspector general to 
be conducting investigations of particular kinds.
    That doesn't happen in the executive branch. I worry, 
however, that the judicial branch is really going to have 
trouble preserving the independence of the inspector general 
under circumstances in which, unlike presidents, you don't have 
that kind of authority to what I call push back.
    Mr. Coble. Before the red light appears, Professor Rotunda, 
your body language tells me you want to insert your oars into 
these waters for rebuttal, so I will recognize you.
    Mr. Rotunda. I am Italian. I have to talk with my hands, 
not just my mouth. [Laughter.]
    But if you look at--I mean, I disagree with Professor 
Geyh's interpretation of the statute, the proposed statute.
    Section 1023 under the duties--the duties are not to 
conduct investigations of matters pertaining to the judicial 
branch. It says conduct investigations of matters pertaining to 
the judicial branch that may require oversight or other action 
within the judicial branch or by Congress.
    The inspector general could find a problem with the 
judiciary that needs a statutory solution and officially tell 
Congress about it. That is--that is a useful but not earth-
shaking reform.
    The inspector general could--sadly, this happens--find a 
situation where Congress has to impeach, propose impeachment. 
That has been done before. It has been done once in the last 
several decades, and hopefully never again.
    These are very modest--it is not just to conduct 
investigations of the judicial branch. It is that requires 
oversight or other action within the judicial branch that you 
tell--you tell the chief justice or that requires a statutory 
solution. That is very modest.
    Mr. Coble. Well, I thank you, sir.
    My time has expired.
    The distinguished gentleman from Virginia, Mr. Scott?
    Mr. Scott. Thank you, Mr. Chairman. Mr. Chairman, the thing 
that concerns me is the congressional involvement in the 
selection of the I.G.
    What would the reaction be if some other branch of 
Government had a say in who the congressional I.G. would be? 
Say the President could help select such a person, or the 
judicial branch could help--such a person.
    What would--Mr. Geyh, what would you think the reaction 
would be?
    Mr. Geyh. Well, my--my impression is that--that there--
Congress has a significant interest in preserving its own 
autonomy, and that if there were some interest in other 
branches dictating who the appointees of that branch were, it 
would not be well received.
    I think that is an understandable reaction, which is part 
of the reason why I don't say so in my testimony, but I would 
have no aversion to Congress authorizing the judiciary to 
create an inspector general.
    And I should add, by the way, that--and this is just as an 
aside--there is no provision in this bill for the removal of 
inspectors general, and that worries me a little bit. Who has 
that power and under what circumstance?
    It seems to me that if this bill goes forward, at a minimum 
there ought to be something in there about--about removal.
    Mr. Scott. I would ask either Mr. Rotunda or Mr. Hellman, 
where is it in the bill that prohibits the I.G. from reviewing 
and commenting on and reporting on the compliance with 
precedents in actual opinions that are written?
    Mr. Rotunda. There is--there is--there is no authority for 
them to do that anywhere in the--in the proposed statute. I 
mean----
    Mr. Scott. Well, it says----
    Mr. Rotunda. --if you look at--duties under 1023, looking 
at now----
    Mr. Scott. Wait, wait. Let me--let me--let me--let me 
read----
    Mr. Rotunda. Yes.
    Mr. Scott. --make an annual report to the chief justice and 
the Congress relating to activities of the office and make 
prompt reports to the chief justice and Congress on matters 
that may require action by them.
    That would certainly cover opinions. We might have to take 
action if they have an opinion that a law was unconstitutional.
    Mr. Rotunda. Congressman Sensenbrenner has already publicly 
stated that the purpose----
    Mr. Scott. Well, I----
    Mr. Rotunda. No, I mean, I think we can clear up the 
statutory language.
    Mr. Scott. Okay.
    Mr. Rotunda. I thought----
    Mr. Scott. But it is not--it is not in the bill----
    Mr. Rotunda. Well, I thought----
    Mr. Scott. --as you read it.
    Mr. Rotunda. I thought it was limited under section 1023(1) 
but I certainly have no objection to making the bill more 
clear.
    Mr. Scott. Okay. Do you see--it would have to be made clear 
that we are not talking about their opinions? Or are we talking 
about their opinions?
    Most of the complaints from this Committee come from the 
opinions, not from--and yesterday we were talking about 
limiting jurisdiction of the Federal courts because we didn't 
like what they might potentially decide.
    Mr. Hellman. May I just add----
    Mr. Scott. Now we are talking about impeaching judges who 
don't rule the way we want. I mean, we have had a lot of 
complaints from this Committee.
    Mr. Hellman. May I just add briefly, I would very much like 
to see that made explicit in the bill. I think the--Chairman 
Sensenbrenner has said that very emphatically.
    But there will be people who will read this in the light 
that you and others have, and it seems to me the sensible thing 
to do is to make that explicit and strong in the bill.
    Mr. Scott. Okay. Let me ask another question. What is the 
purpose of consulting with congressional leaders? Mr. Geyh 
suggested that there is nothing inherently wrong with an I.G., 
but what is the deal about consulting with partisan 
congressional leaders as to who it ought to be?
    Mr. Rotunda. When Congress urged the president to appoint a 
special prosecutor against Richard Nixon after Archibald Cox 
resigned, the attorney general put in the regulation that it 
would--they would appoint a special prosecutor after 
consultation with senior leaders of the House and Senate 
Judiciary Committees.
    I don't think there is anything unconstitutional about 
that, as long as the House and Senate don't--aren't the ones 
appointing, because they have no appointing authority under our 
Constitution. I thought it was a matter of kind of comity. I 
don't think it is essential to the bill.
    But it is not unconstitutional to talk. It is a free 
country.
    Mr. Scott. Well, yes, but to require the consultation, you 
have to assume that it is going to have some influence on the 
selection. Wouldn't the--if you can influence the selection of 
who the I.G. is going to be, aren't you kind of influencing 
which judges are going to be the ones investigated?
    Mr. Rotunda. Well, advice is persuasive if it is wise. I 
think----
    Mr. Scott. Or if it is coercive.
    Mr. Rotunda. I don't know how you are going to coerce the 
chief justice. What can you do? I mean, what can you do to him, 
really? So----
    Mr. Scott. What should you do to him, I guess, would be 
another--my time is just about up.
    Let me ask one final question. I don't see--maybe I didn't 
read it carefully. Is there subpoena power for this I.G. in 
here?
    Mr. Rotunda. I believe there is.
    Mr. Hellman. Yes, it is.
    Mr. Scott. There is?
    Mr. Hellman. Section 1024.
    Mr. Scott. Ten twenty-four?
    Mr. Rotunda. Twenty-four three.
    Mr. Scott. Okay.
    Thank you, Mr. Chairman.
    Mr. Coble. Thank you, Mr. Scott.
    The distinguished gentleman from Ohio, Mr. Chabot?
    Mr. Chabot. Thank you, Mr. Chairman. I have no questions at 
this time. I want to thank you for holding this hearing, 
however.
    Mr. Coble. I thank you, sir.
    The distinguished gentleman from Massachusetts, Mr. 
Delahunt?
    Mr. Delahunt. Thank you, Mr. Chairman.
    This bill does not carry any criminal sanctions.
    Mr. Rotunda. No.
    Mr. Delahunt. I guess my query is to the chair, who is on 
his way out, but what is this bill doing here?
    Mr. Chabot, maybe you can answer that.
    Mr. Chabot. No, Mr. Chabot can't answer that. I just got 
here a few minutes ago.
    Mr. Delahunt. Okay.
    Mr. Chabot. I was in another hearing, and I am just holding 
the chair. I am sure when Mr. Coble gets back here he will be 
able to fully satisfy your questions.
    Mr. Delahunt. No, I mean, it----
    Mr. Scott. If the gentleman would yield----
    Mr. Delahunt. Sure.
    Mr. Scott. --I made a similar inquiry earlier, and----
    Mr. Delahunt. Am I at the right Subcommittee? Is this the 
Subcommittee on Crime? [Laughter.]
    Mr. Scott. The answer was essentially that the bill is 
here.
    Mr. Delahunt. Okay. You know, I agree. I think there is 
really a consensus from what I am hearing from academia as 
represented by the three that language can be cleaned up. You 
know, the appointment power can eliminate the consultative 
process, and we can be clear as to the I.G. not being 
implicated into rendering opinions on opinions, what have you.
    I think it was you, Professor Hellman, that talked--or 
maybe it was you, Professor Rotunda, that was talking about is 
the sky falling. I am just uncertain as to the magnitude of the 
perceived problem.
    I think it was you, Professor Hellman, that talked about, 
you know, erosion of the confidence of the American people in 
the system. Well, I don't believe that is something that most 
Americans wake up in the morning and are concerned about.
    And I am not trying to minimize the fact that there might 
be an issue there. But I guess where I am coming down is the 
Breyer Committee--at least it is my understanding--is going to 
issue a report some time in the fall. I can assure you that 
this particular Committee will not be in a position to respond 
before that.
    But I would like to hear from representatives of the 
Judicial Conference as to, first of all, the need, and then 
their perspective and view as to what is necessary in terms of 
meeting that need and what kind of a mechanism.
    Professor?
    Mr. Hellman. Thank you, Mr. Delahunt. I have two quick 
responses to that. No, I don't think the sky is falling either 
way, actually. But the--and it is certainly true that people 
don't wake up in the morning thinking oh, my God, the 
independent judiciary is doing all these terrible things, and 
we have to do something about it.
    But I do think there can be a subtle erosion of confidence, 
and one of the reasons it can be a problem today perhaps more 
than in the past is the amplifying effect of the media. We have 
talk radio raising an issue, and then it gets talked about in 
the blogs, and then the talk radio gets it again.
    There are Web sites devoted to pursuing judges for alleged 
misconduct.
    Mr. Delahunt. Judicial Watch, et cetera. I don't disagree 
with that, and I think that actually many of us in--some of us 
in Congress are responsible for that, because I think it was 
you, Professor Geyh, that talked about, you know, the term 
``activist judges''--of course, that is--so much depends on the 
perspective of the individual that--the perspective of what 
activism is.
    But this is not going to solve that issue.
    Mr. Hellman. No, it is not going to solve that issue.
    Mr. Delahunt. And I don't even think it will impact it 
whatsoever.
    Mr. Hellman. Well, that in a way was my second point, which 
is that I regard this, as Professor Rotunda does, as a 
relatively modest measure. But the other thing--I think you are 
absolutely right about your larger point, which is that there 
has been an escalation of rhetoric.
    And I think it has been on both sides, where you have one 
side looking at a--saying not just this is a bad decision, but 
this is judicial activism run amok, and then on the other side 
you have people saying this is--not just this is a bad piece of 
legislation----
    Mr. Delahunt. No, I----
    Mr. Hellman. --the judiciary.
    Mr. Delahunt. We are totally in agreement. I thought what 
was interesting last night--in fact, I was discussing this 
earlier today with my friend and colleague from Virginia--was a 
recent Supreme Court decision relative to the no-knock issue.
    And I noted that some of my colleagues on this side were 
supporting legislation which would limit--would impose 
limitations on funding for--pursuant to that particular 
decision.
    So while I would suggest that in the course of the past 4 
years or 5 years we have been hearing from the more 
conservative Members of Congress about their unhappiness with 
what they perceive to be liberal activist judges, clearly it 
will go the other way presumably with the advent of the Roberts 
court.
    And I just am one who believes in the most profound 
protection for the independence of the judiciary even if I 
happen to disagree with a particular opinion. That is just an 
unsolicited observation.
    Mr. Coble. I thank the gentleman from Massachusetts.
    And I think Mr. Scott has one more question to put to the 
panel.
    Mr. Scott. I just wanted to ask Mr. Geyh--you mentioned the 
authorization of an I.G. as one thing that could be done. Are 
there other things that could be done?
    Mr. Geyh. Well, the one thing that I would suggest is that 
virtually every State in the United States links their 
disciplinary process--their judiciaries do--to their code of 
conduct.
    And the confusion that surrounds a lot of these cases, 
where you have got recusal problems or a pro se litigation 
problem--not pro se litigation, excuse me; ex parte 
communications--can be resolved if you just link the two.
    I mean, I find, in other words, that you have this 
elaborate code that tells us when it is inappropriate to engage 
in ex parte contacts, when it is inappropriate to disqualify.
    And there is--the Federal judiciary is alone among 
judiciaries in not linking those two. I think one way to deal 
with that is to amend, you know, the statute to instead of 
saying judges should be disciplined for engaging in conduct 
that is contrary to the administration of justice, this vague 
standard that is currently there, to linking it to conduct that 
violates their--the code of judicial conduct that they already 
have in place.
    Mr. Coble. I thank the gentleman.
    In my opening statement, gentlemen, I--alluding to the 
previous hearing that was mentioned earlier, I said we learned 
from that hearing that the complaint process was largely 
unpublicized and that transparency issues persisted.
    I should have said and that a lack of transparency issues 
persisted, just for the record.
    We appreciate very much, gentlemen, your contribution 
today. The Subcommittee will benefit from this, I am confident. 
In order to ensure a full record and adequate consideration of 
this important issue, the record will be left open for 
additional submissions for 7 days.
    Also, any written question that a Member wants to submit 
should be submitted within the 7-day period.
    Did you have something, Bobby?
    Mr. Scott. Yes, I would like a letter from the Judicial 
Conference of the United States--we didn't invite them, but 
they did submit a letter to you, a copy to me, and I would like 
this part of the record.
    Mr. Coble. Without objection, it will be made a part of the 
record.
    [The letter follows in the Appendix.]
    Mr. Coble. And this concludes the legislative hearing on 
H.R. 5219, the Judicial Transparency and Ethics Enhancement Act 
of 2006. Thank you for your cooperation and attendance.
    And the Subcommittee stands adjourned.
    [Whereupon, at 12:39 p.m., the Subcommittee was adjourned.]


                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

 Prepared Statement of the Honorable Robert C. Scott, a Representative 
      in Congress from the State of Virginia, and Ranking Member, 
        Subcommittee on Crime, Terrorism, and Homeland Security

    Thank you, Mr. Chairman. I'm pleased to join you in convening this 
hearing on H.R. 5219, the ``Judicial Transparency and Ethics 
Enhancement Act of 2006.''
    I am in favor of Congress conducting regular oversight over the 
administrative operations of the courts through reports, hearings, and 
avenues of communication. And I'm in favor of the Congress authorizing, 
not requiring, the Judicial Conference to appoint an inspector general 
or other such official, to assist it in its efforts to reign in judges 
who don't follow the rules, and to develop reports to be sent to 
Congress and elsewhere the Conference might direct. But I am not in 
favor of the Congress requiring the appointment of a Judiciary IG in 
whose appointment it has a say and who reports to Congress as directed 
or required by Congress. I believe that such a congressionally 
influenced position would clearly offend traditional notions of 
separation of powers and comity between the Legislative and Judiciary 
Branches. Moreover, I believe the creation of such a position is 
unnecessary.
    If we are dissatisfied with the way the Judiciary is addressing 
judicial discipline and other matters, we should notify Chief Justice 
Roberts as you and Ranking Member Berman did with Chief Justice 
Rehnquist when you were Chairman of the Courts Subcommittee, Mr. 
Chairman, and give Chief Justice Roberts a chance to respond to us. 
Granted, the reports of judges taking, and not reporting, lavish, 
privately financed trips, and of judges not reporting conflicts of 
interest as required, as well as failing to recuse themselves as 
appropriate, are disturbing. While these matters require the Judicial 
Conference's attention as well as our oversight attention, there are a 
number of approaches available to the Congress to satisfy itself that 
these issues are being appropriately addressed by the Judiciary, short 
of establishing a Congressionally directed Judiciary Inspector General. 
There is evidence the Judicial Conference is addressing the issues, 
including the indications in its letter to us dated yesterday. If more 
specific information is desired, perhaps a letter to the Chief Justice 
requesting an update on the Conference's progress toward addressing the 
issues and problems we are hearing about would be appropriate.
    The Judicial Branch is certainly not the only branch with 
disturbing reports of inappropriate privately financed trips and 
conflicts of interest, and worse. There continues to be a number of 
such reports regarding members of Congress, despite actions taken by 
the Congress over the years to address the problems, including 
establishing an Inspector General. While the Congress has an oversight 
responsibility to see to it that the public resources it makes 
available to the other branches are expended in a publicly accountable 
and proper manner, oversight of the ethics of individual employees of 
those branches is better left to the branches, short of the necessity 
for use of Congress' impeachment powers.
    With these reservations, Mr. Chairman, I look forward to the 
testimony of our witnesses for their insight on the issues raised by 
H.R. 5219. Thank you.

Prepared Statement of the Honorable John Conyers, Jr., a Representative 
 in Congress from the State of Michigan, and Ranking Member, Committee 
                            on the Judiciary



   Letter to the Honorable Howard Coble from Leonidas Ralph Mecham, 
          Secretary, Judicial Conference of the United States



                                 
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