[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]



 
      AN EXAMINATION OF THE JUDICIAL CONDUCT AND DISABILITY SYSTEM

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

                                HEARING

                               BEFORE THE

                            SUBCOMMITTEE ON
                     COURTS, INTELLECTUAL PROPERTY,
                            AND THE INTERNET

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED THIRTEENTH CONGRESS

                             FIRST SESSION

                               __________

                             APRIL 25, 2013

                               __________

                           Serial No. 113-25

                               __________

         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

                   BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        JERROLD NADLER, New York
HOWARD COBLE, North Carolina         ROBERT C. ``BOBBY'' SCOTT, 
LAMAR SMITH, Texas                       Virginia
STEVE CHABOT, Ohio                   MELVIN L. WATT, North Carolina
SPENCER BACHUS, Alabama              ZOE LOFGREN, California
DARRELL E. ISSA, California          SHEILA JACKSON LEE, Texas
J. RANDY FORBES, Virginia            STEVE COHEN, Tennessee
STEVE KING, Iowa                     HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona                  Georgia
LOUIE GOHMERT, Texas                 PEDRO R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio                     JUDY CHU, California
TED POE, Texas                       TED DEUTCH, Florida
JASON CHAFFETZ, Utah                 LUIS V. GUTIERREZ, Illinois
TOM MARINO, Pennsylvania             KAREN BASS, California
TREY GOWDY, South Carolina           CEDRIC RICHMOND, Louisiana
MARK AMODEI, Nevada                  SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho                 JOE GARCIA, Florida
BLAKE FARENTHOLD, Texas              HAKEEM JEFFRIES, New York
GEORGE HOLDING, North Carolina
DOUG COLLINS, Georgia
RON DeSANTIS, Florida
[Vacant]

           Shelley Husband, Chief of Staff & General Counsel
        Perry Apelbaum, Minority Staff Director & Chief Counsel
                                 ------                                

    Subcommittee on Courts, Intellectual Property, and the Internet

                 HOWARD COBLE, North Carolina, Chairman

                TOM MARINO, Pennsylvania, Vice-Chairman

F. JAMES SENSENBRENNER, Jr.,         MELVIN L. WATT, North Carolina
Wisconsin                            JOHN CONYERS, Jr., Michigan
LAMAR SMITH, Texas                   HENRY C. ``HANK'' JOHNSON, Jr.,
STEVE CHABOT, Ohio                     Georgia
DARRELL E. ISSA, California          JUDY CHU, California
TED POE, Texas                       TED DEUTCH, Florida
JASON CHAFFETZ, Utah                 KAREN BASS, California
MARK AMODEI, Nevada                  CEDRIC RICHMOND, Louisiana
BLAKE FARENTHOLD, Texas              SUZAN DelBENE, Washington
GEORGE HOLDING, North Carolina       HAKEEM JEFFRIES, New York
DOUG COLLINS, Georgia                JERROLD NADLER, New York
RON DeSANTIS, Florida                ZOE LOFGREN, California
[Vacant]                             SHEILA JACKSON LEE, Texas

                       Joe Keeley, Chief Counsel

                   Stephanie Moore, Minority Counsel


                            C O N T E N T S

                              ----------                              

                             APRIL 25, 2013

                                                                   Page

                           OPENING STATEMENTS

The Honorable Howard Coble, a Representative in Congress from the 
  State of North Carolina, and Chairman, Subcommittee on Courts, 
  Intellectual Property, and the Internet........................     1
The Honorable Melvin L. Watt, a Representative in Congress from 
  the State of North Carolina, and Ranking Member, Subcommittee 
  on Courts, Intellectual Property, and the Internet.............     2

                               WITNESSES

The Honorable Anthony J. Scirica, Senior Judge, United States 
  Court of Appeals for the Third Circuit
  Oral Testimony.................................................     6
  Prepared Statement.............................................     9
The Honorable David B. Sentelle, Senior Judge, United States 
  Court of Appeals for the District of Columbia
  Oral Testimony.................................................    21
  Prepared Statement.............................................    24
Arthur D. Hellman, Sally Ann Semenko Endowed Chair, University of 
  Pittsburgh School of Law
  Oral Testimony.................................................    34
  Prepared Statement.............................................    36
Russell R. Wheeler, Visiting Fellow, The Brookings Institution, 
  and President, The Governance Institute
  Oral Testimony.................................................    68
  Prepared Statement.............................................    69

                                APPENDIX
               Material Submitted for the Hearing Record

Response to Questions for the Record from Thomas F. Hogan, 
  Secretary, Judicial Conference of the United States............    91
Response to Questions for the Record from Arthur D. Hellman, 
  Sally Ann Semenko Endowed Chair, University of Pittsburgh 
  School of Law..................................................    95
Response to Questions for the Record from Russell R. Wheeler, 
  Visiting Fellow, The Brookings Institution, and President, The 
  Governance Institute...........................................    97


      AN EXAMINATION OF THE JUDICIAL CONDUCT AND DISABILITY SYSTEM

                              ----------                              


                        THURSDAY, APRIL 25, 2013

                        House of Representatives

            Subcommittee on Courts, Intellectual Property, 
                            and the Internet

                       Committee on the Judiciary

                            Washington, DC.

    The Subcommittee met, pursuant to call, at 1:33 p.m., in 
room 2141, Rayburn House Office Building, the Honorable Howard 
Coble (Chairman of the Subcommittee) presiding.
    Present: Representatives Coble, Chabot, Issa, Marino, 
Holding, Collins, Watt, Conyers, Jackson Lee, Richmond, 
DelBene, and Jeffries.
    Staff Present: (Majority) David Whitney, Counsel; Olivia 
Lee, Clerk; and Stephanie Moore, Minority Counsel.
    Mr. Coble. Good afternoon, ladies and gentlemen. The 
Subcommittee on Courts, Intellectual Property, and the Internet 
will come to order.
    Without objection, the Chair is authorized to declare 
recesses of the Subcommittee at any time.
    We welcome all of our witnesses today.
    Now I am told that there will be a vote imminently 
forthcoming. So we can't always judge that accurately, but we 
will proceed in any event.
    Good afternoon again, ladies and gentlemen. We welcome you 
to this important hearing into the operation of our Federal 
courts. ``Equal justice under law,'' those four words are 
inscribed over the entrance to the U.S. Supreme Court. But for 
those words to have meaning to all Americans, they must be 
considered not merely an inspiring aspiration, but what is 
experienced in the day-to-day operation of our Federal 
judiciary.
    Throughout my tenure in Congress, integrity and 
accountability within our Federal courts has been a priority 
for this Subcommittee and the judiciary. During this time, we 
have conducted many oversight hearings and implemented changes 
when necessary, most recently the Judicial Improvements Act of 
2002.
    At a time when communication is instantaneous and 
perceptions can be defined in a moment, it is more important 
than ever that we take appropriate steps to ensure the public 
is assured that the institutions and the individuals who serve 
them are accountable and transparent. A few bad apples, as you 
know, can spoil the barrel, and that is certainly true when it 
comes to the courts where a few life tenured judges, some of 
whom engage in perjury, some who intimidated and sexually 
abused their own court employees, can inflict pain on others 
and negatively affect the public's perception of our system of 
justice.
    To respond to cases like these as well--strike that. To 
respond to cases like these, as well as to deal with 
allegations of misconduct that do not rise to the level of an 
impeachable offense, Congress enacted the Judicial Conduct and 
Disability Act of 1980. That law provides a structure that 
permits the judiciary to engage in a larger decentralized self-
regulatory system.
    Though amended twice since 1980, the basic policy approach 
has remained substantially unchanged. Since 2006, however, 
there has been an increased recognition that the judiciary 
needs to do more to centralize implementation of the Act. 
Without stealing thunder from any of our witnesses today who 
will address these steps in greater detail, I will simply note 
that the publication of the Breyer Committee report granting a 
new authority to the Judicial Conference's Judicial Conduct 
Committee and the adoption of the first national rules 
governing review of misconduct allegations are positive 
developments.
    But there remain both substantive and procedural reforms 
this Subcommittee and the court should consider implementing to 
improve the existing processes.
    I look forward to receiving and considering the suggestions 
of Professor Hellman, who is perhaps our Nation's leading 
authority on the subject of judicial discipline. In addition to 
Professor Hellman, we are fortunate to have two distinguished 
jurists who have dedicated their entire professional lives not 
only to their services on the bench, but who are also widely 
recognized for their efforts to improve the administration and 
operation of the judiciary.
    Finally, we are fortunate to have with us one of our own 
experts who was actively and intricately involved in preparing 
the Breyer Committee report, formulating its recommendations.
    In conclusion, I want to just observe that the public, to 
have confidence in the judgment of the court, they must have 
confidence in both the judicial system and the integrity of its 
individual judges. With that, the stage is set for what I hope 
will be a fruitful and productive dialogue over coming months 
on how we can together better ensure that conduct prejudicial 
to the effective and expeditious administration of the business 
of the courts is prohibited in the first instance, or 
appropriately and rapidly corrected when it does occur in the 
second instance.
    Now I assume there is a vote on now. Is that valid? Mel, 
you want to give yours before we go?
    Mr. Watt. I think I can get it in.
    Mr. Coble. I am pleased to recognize the distinguished 
gentleman from North Carolina, Mr. Mel Watt, for his opening 
statement.
    Mr. Watt. I thank the Chairman, and I welcome our 
witnesses, and I especially welcome my good friend in whose 
court I have appeared in an earlier life, Judge Sentelle. It is 
great to see him. He is looking more judicial every day, which 
means his hair is getting like mine.
    Mr. Coble. Well, you both still have hair, unlike me.
    Mr. Watt. That is very helpful, yes.
    Mr. Chairman, this is the first hearing of this Congress 
under this Subcommittee's newly acquired jurisdiction involving 
the courts. So it is fitting that we have this distinguished 
panel before us.
    As a practicing attorney for 22 years before coming to 
Congress, I have a healthy respect for our judicial system, a 
system which is envied around the world. The hallmark of our 
third co-equal branch of the Federal Government is its 
independence. That independence is safeguarded or at least 
augmented by the constitutional guarantee of service in office 
``during good behavior'' and removal only through impeachment, 
which has been traditionally reserved, as it should be, for the 
most egregious cases.
    Prior to 1980, non-impeachable yet serious offenses were 
handled through a patchwork of State laws. A uniform system for 
policing judicial misconduct and disability was necessary to 
ensure that errant judges did not betray the public trust or 
the integrity of the judiciary, and the new system was adopted 
and signed into law in 1980.
    When signing the measure into law, President Jimmy Carter 
noted that, ``It makes a sound accommodation between two 
essential values--preserving the independence of the Federal 
judiciary and making judges, as public servants, accountable 
under the laws for their conduct in office.''
    Since 1980, the mechanism for investigating and 
adjudicating complaints against Federal judges has undergone 
improvement, both statutorily under the able leadership of 
Chairman Coble and then-Ranking Member Howard Berman, as well 
as by the judiciary based on the 2006 Breyer Committee report 
and the subsequent adoption by the Judicial Conference of 
Uniform Mandatory Rules in 2008, which incorporated many of the 
Breyer Committee's recommendations.
    Today's oversight hearing is an opportunity for Congress to 
assess how things are going. The men and women who serve on the 
Federal bench generally do so with distinction and honor and 
often after lengthy, contentious, sometimes partisan 
confirmation proceedings.
    Vacancies resulting from failures to confirm or delays in 
confirmation impose additional burdens on those who serve. 
Prolonged vacancies are not good for the workload or the morale 
of incumbent judges and may also result in mediocre 
appointments as quality candidates withdraw from consideration.
    Additionally, judicial salaries are often quickly surpassed 
by the salaries of former law clerks when they enter legal 
practice. Artificially low compensation and increased 
workloads, of course, do not excuse bad behavior. Although five 
Federal judges have faced impeachment within the past several 
years, Congress has only removed two judges since the last 
removal in 1989.
    Although the details of each case vary, that statistical 
evidence suggests that the incidence of thoroughly unfit judges 
who should face the ultimate sanction of impeachment and 
removal from office is low. This seems to confirm that the 
process by which judges are referred to Congress by the 
Judicial Conference is working.
    The management of complaints that do not rise to the level 
of an impeachable offense are also vitally important to ensure 
that the public retains confidence in the judiciary. The Breyer 
Committee was charged with reviewing the implementation of the 
judicial misconduct mechanism to determine ``whether the 
judiciary in implementing the Act failed to apply the Act 
strictly, as Congress intended, thereby engaging in 
institutional favoritism.''
    Effective enforcement of ethical codes of conduct requires 
that the judiciary self-regulate without preferential treatment 
to undue leniency in favor of accused colleagues. I expect that 
our witnesses will address many of the recommendations of the 
Breyer Committee that address adequate and unbiased self-
regulation by the judiciary, as well as any gaps in 
implementation that may need attention.
    I am equally interested in learning more about two aspects 
of the overall complaint process that I think serve the twin 
goals articulated by President Carter decades ago--preserving 
independence and commanding accountability. Specifically, I 
believe that a process that safeguards both the rights of the 
accused and the complainant will promote public confidence in 
that process regardless of the outcome.
    Employees within the judicial branch must not only feel 
secure in disclosing what they believe to be improper conduct, 
they must also be adequately protected against retaliation when 
they make good faith allegations against powerful judges. These 
employees are often in a position to detect and prevent 
misconduct early, and robust whistleblower protections will 
serve that aim.
    It is equally important to the process that judges who are 
unfairly or erroneously targeted and incur unwarranted legal 
fees in their defense get reimbursed. Still, while I understand 
that attorneys fees and other reasonable costs may be awarded, 
I am concerned that the reimbursement is authorized under--as 
authorized under 16 U.S.C. Section 361 only ``from funds 
appropriated to the Federal judiciary.''
    We need to be sure that the language of Section 361 does 
not present a problem in these tight budget times, especially 
during this time of sequestration. I hope that the witnesses, 
either in their prepared remarks or the question and answer 
period, will have an opportunity to address these concerns, 
along with any other concerns and issues they have identified.
    And I thank them again for being here. Great to see you 
again, Judge Sentelle. Great to see all of you. I am not--I 
might have to go back to his court sometime. So I am being 
especially nice to him. [Laughter.]
    I yield back, Mr. Chairman.
    Mr. Coble. I thank the gentleman.
    And this Subcommittee hearing will stand in recess, subject 
to our return from the floor.
    [Whereupon, at 1:44 p.m., the Subcommittee recessed, to 
reconvene at 2:11 p.m., the same day.]
    Mr. Coble. I normally beat Mr. Watt back from the floor, 
but he was the winner today. So kudos to him.
    We will resume our hearing, folks.
    We have a very distinguished panel of witnesses today. Each 
of the witnesses' written statement will be entered into the 
record in its entirety, and I ask that each witness summarize 
his testimony in 5 minutes or less.
    There is a clock monitor on your panel there. When the 
green light turns to amber, that gives you a minute's warning. 
The red light illuminates, that is your warning to stop. Now 
you won't be keelhauled if you violate it, but try to stay 
within the 5 minutes if you can. When the light switches on--as 
I just said that.
    I will begin by swearing in our witnesses before 
introducing them. If you would, please, all rise, raise your 
right hands.
    [Witnesses sworn.]
    Mr. Coble. Let the record reveal that all four witnesses 
responded in the affirmative.
    As I said before, we have a very distinguished guest today, 
and we were glad to welcome each of you four. But I am 
particularly pleased to see Professor Hellman again, who has 
appeared on the Hill many times. Good to have you back, 
Professor. And not unlike Mr. Watt, I proudly claim a 
longstanding friendship with Judge Sentelle. But it is good to 
have the other two as well. I don't mean to diminish your 
presence.
    Our first witness today is the Honorable Anthony J. 
Scirica.
    Mr. Issa. Mr. Chairman?
    Mr. Coble. Yes, sir?
    Mr. Issa. A point of privilege, Mr. Chairman. Since you are 
introducing your good friends, I would note the presence of the 
Chief Judge of the Southern District of California, Judge 
Moskowitz, is also with us today in the audience. And no 
stranger to the issues of my district and my region for 
decades.
    And so, since I have known him since he was a baby 
magistrate, I just wanted to make sure I embarrassed him 
publicly in this hearing because he is a person I admire a 
great deal.
    Mr. Coble. Thank you, Darrell. I appreciate that.
    And Your Honor, good to have you with us as well.
    The Honorable Anthony J. Scirica, senior judge of the U.S. 
Court of Appeals, as Darrell just told us. And I think you 
pretty well covered it, Darrell. Prior to his appointment, he 
served as a State representative in the Pennsylvania General 
Assembly and also as assistant district attorney to Montgomery 
County in Pennsylvania.
    Judge Scirica received his law degree from the University 
of Michigan and his bachelor's degree from Wesleyan University.
    Our second witness today is the Honorable David B. 
Sentelle, our fellow North Carolinian, senior judge of the U.S. 
Court of Appeals for the District of Columbia Circuit. Judge 
Sentelle was appointed to the U.S. District Court for the 
Western District of North Carolina in 1985 by President Ronald 
Reagan and then served on the D.C. Circuit from 1987 until the 
present time.
    Prior to his appointment, Judge Sentelle served as the 
assistant U.S. attorney in Charlotte, North Carolina. He also 
practiced law at two firms, first Ussell & Dumont, then Tucker, 
Hicks, Sentelle, Moon & Hodge.
    Judge Sentelle is a double Tar Heel, having received both 
his law degree and bachelor's degree from the University of 
North Carolina at Chapel Hill.
    Our third witness is Professor Arthur Hellman from the 
University of Pittsburgh School of Law. Professor Hellman 
serves as one of the Nation's leading academic authorities on 
Federal judicial ethics. He has testified multiple times before 
this Committee and this Subcommittee and has received public 
recognition for his work in helping draft the Judicial 
Improvements Act of 2002.
    Professor Hellman is well recognized for his publications 
that include numerous articles and several books. In 2005, he 
was appointed as the inaugural holder of the Sally Ann Semenko 
Endowed Chair at the university. In 2002, he received the 
Chancellor's Distinguished Research Award. Professor Hellman 
received his J.D. degree from the Yale School of Law and his 
B.A. magna cum laude from Harvard University.
    Our final and last witness is Mr. Russell Wheeler, visiting 
fellow in the Government Studies Program at the Brookings 
Institute. Mr. Wheeler joined the Federal Judicial Center in 
1977 and served as Deputy Director from 1991 until 2005. His 
extensive research and publications deal with the United States 
courts, including judicial selection and judicial ethics.
    Mr. Wheeler is currently an adjunct professor at American 
University's Washington College of Law and serves on the 
Academic Advisory Committee of the American Bar Association's 
Standing Committee on Federal Judicial Improvements.
    Mr. Wheeler received his J.D. and M.A. in political science 
from the University of Chicago and his B.S. degree from 
Augustana College.
    Welcome to all of you, and Judge, we will begin with you, 
Your Honor.

 TESTIMONY OF THE HONORABLE ANTHONY J. SCIRICA, SENIOR JUDGE, 
      UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

    Judge Scirica. Thank you very much, Mr. Chairman. Thank you 
for inviting me to testify.
    I am Anthony Scirica. I'm a judge on the United States 
Court of Appeals for the Third Circuit, and I chair the 
Judicial Conference Committee on Judicial Conduct and 
Disability.
    For 7 years, I served as the chief judge of the Third 
Circuit. In that capacity, I received roughly two judicial 
conduct complaints a week. My job was to adjudicate and resolve 
these in a manner consistent with the Act and, after 2008, 
under the new procedural rules adopted that year by the 
Judicial Conference. I always believed that nothing I did as a 
chief circuit judge was more important than adjudicating these 
complaints.
    By enacting the Judicial Conduct and Disability Act of 
1980, Congress entrusted to the judiciary the responsibility to 
regulate judicial conduct and disability. With that 
responsibility comes the imperative of accountability. Judicial 
accountability and judicial independence are two sides of the 
same coin, as both are essential to establish and protect the 
rule of law.
    At the end of the day, respect for the judgment and rulings 
of courts depends on public confidence in the integrity, 
competence, independence, and accountability of their judges. I 
appreciate this opportunity to set forth the steps we have 
taken to implement the Act. I will begin by noting that the 
complaint process is interrelated with the Code of Conduct for 
United States Judges.
    The Judicial Conference has explicitly stated that the Code 
of Conduct provides the standards of conduct to apply in these 
proceedings. The Code of Conduct and the disciplinary system 
set forth in the Act, therefore, are complementary and act in 
tandem.
    In 2004, Chief Justice William Rehnquist appointed a study 
committee known as the Breyer Committee after its chair, 
Justice Stephen Breyer, to evaluate implementation of the Act. 
It has been nearly 7 years since the Breyer Committee issued 
its report in 2006.
    Now is a good time to review how the rules are operating 
and to consider adjustments. We welcome Congress' views on 
these issues. We value your perspective and oversight. We look 
forward to working together to improve our process.
    Before the Breyer Committee report, the main work of the 
committee was primarily deciding petitions for review of 
judicial council actions taken under the Act. The Breyer 
Committee recommended that the committee become more active in 
several areas, including providing advice to chief circuit 
judges and circuit councils and guidance to chief circuit 
judges as to when they should initiate a complaint.
    Also some questions had arisen over matters in which chief 
circuit judges had not appointed special investigating 
committees. In light of this, the Judicial Conference 
recognized the need for a set of mandatory and clarifying 
rules, and in 2008 adopted the first set of uniform mandatory 
rules governing the complaint process.
    Significantly, the Conference expanded the authority of the 
Judicial Conduct and Disability Committee. These developments 
were important because in addition to mandating national 
uniformity, they established oversight and review. They 
centralized supervisory authority, created a hierarchy of 
accountability, and improved transparency of the judicial 
conduct complaint process.
    The Judicial Conference also expanded the oversight role of 
the Judicial Conduct and Disability Committee to include 
monitoring the orders issued by chief circuit judges, circuit 
councils, and national courts under the Act. This enables the 
committee to step in to assist the circuit councils if 
requirements are overlooked and to ensure that the Act is 
functioning properly.
    Self-regulatory systems impose significant responsibilities 
on those who must enforce the regulations. The disciplinary 
system is self-regulatory in a legitimate effort to preserve 
judicial independence. As stewards, we recognize that it is 
essential that we continually monitor and assess our 
disciplinary system to make sure that it is effective and that 
it adheres to the correct standards and procedures.
    We want to make certain that our disciplinary system holds 
judges accountable for misconduct, but at the same time 
protects a vital judicial independence. If we deviate from the 
current disciplinary system, we would create the potential to 
alter the well-balanced calibration in our constitutional 
system of checks and balances that has served our country so 
well.
    As I noted, Mr. Chairman, we welcome the opportunity to 
work with you, with the Committee, and with Congress to improve 
the judicial system and in particular to improve our 
disciplinary and disability system. As chair of the committee, 
I am always available, and I welcome the opportunity to brief 
you and Members of the Judiciary Committee on the operation of 
the Act.
    That concludes my prepared remarks, and I welcome any 
questions you may have.
    [The prepared statement of Judge Scirica follows:]

    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
                               __________

    Mr. Coble. Thank you, Judge Scirica.
    Judge Sentelle?

  TESTIMONY OF THE HONORABLE DAVID B. SENTELLE, SENIOR JUDGE, 
  UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA

    Judge Sentelle. Good afternoon.
    Mr. Coble. Check your mike, Judge.
    Judge Sentelle. I'm not accustomed to that. Thank you.
    Good afternoon to the Chairman and Ranking Member Watt. 
Both of you were kind enough to acknowledge our long 
friendship. As you might guess from looking, Chairman Coble's 
and mine is longer than mine with Ranking Member Watt, but 
almost as long.
    And since the commission of this hearing, another old 
friend, though not near the venue, the young gentleman in the 
front row there, Representative Holding has come in, whose 
hospitality I've enjoyed in Raleigh.
    So to all the other Members of the Committee, I'm sure I'd 
like you equally well if I knew you. [Laughter.]
    Mr. Coble. Don't be too sure.
    Judge Sentelle. I am Dave Sentelle. I'm a judge of the 
United States Court of Appeals for the District of Columbia 
Circuit.
    In February of this year, I completed my term as chair of 
the Executive Committee of the Judicial Conference of the 
United States, succeeding Judge Scirica. I also completed a 5-
year term as chief judge of my court.
    Although this hearing is, as I understand it, directed 
toward an examination of the judicial conduct and disability 
system, and my colleague Judge Scirica is the chair of the most 
relevant committee on that--and he's obviously the best 
qualified to discuss it. But our conduct and disability system 
does not operate in a vacuum. It's part of an interconnected 
web of judiciary programs regarding ethics, employee conduct, 
oversight, audit, review, complaint and dispute resolution, 
development and implementation of best practices.
    Not infrequently, matters that are discovered in one of 
those areas lead to others so that both in practice and perhaps 
in the minds of those who set up the hearing. So my testimony 
on behalf of the conference today will outline briefly some of 
the work in those other areas and in a bit more detail in the 
written submission. I hope it will be helpful to the 
Subcommittee in its consideration.
    An independent judiciary is one of the most valuable and 
admired assets of our 235-year-old democracy. In order to help 
preserve independence, our branch has been granted considerable 
powers of governance and oversight. We recognize that with that 
power comes responsibility and accountability, including the 
obligation to be able to explain ourselves to the public and to 
this Congress.
    The Judicial Conference reaffirmed this guiding principle 
by identifying accountability as one of the six core values 
underlying the strategic plan for the Federal judiciary, which 
also happens to be known as the Breyer plan, although that's 
named after District Judge Breyer rather than Justice Breyer.
    Specifically, the plan requires ``stringent standards of 
conduct, self-enforcement of legal and ethical rules, good 
stewardship of public funds and property, effective and 
efficient use of resources.'' I'll give you a brief overview of 
the checks and balances that we have in place to ensure that 
the administration of the judicial branch is accountable.
    To understand accountability mechanisms in the judiciary, 
it's important to recognize that our system is specifically 
designed to reflect and capitalize on the unique nature and 
structure of judicial administration.
    The decentralized nature of judicial administration is 
designed to support and complement independent judicial 
decision-making at the local court level where the judicial 
power is vested in individual judges and panels of judges. 
Local court mechanisms include, within appellate, district, and 
bankruptcy courts, chief judges and court unit executives who 
are primarily responsible for the review, oversight, and 
integrity of the court operations.
    Certain duties and responsibilities are statutory 
responsibilities of the chief judge, or the court as a whole. 
Other authorities are delegated to the courts by the Director 
of the Administrative Office of the United States, what we 
refer to as the AO, but in accordance with statute, rules of 
court, Judicial Conference policies, and circuit judicial 
orders.
    As my time is running, I will skip and tell you that there 
is a little further detail in the written submission. Our 
regional oversight responsibilities within the court reside in 
the circuit judicial councils. They carry out major oversight 
responsibilities. Each council has broad authority to make all 
necessary and appropriate orders for effective and expeditious 
administration of justice within the circuit.
    The judicial councils play an important role in the 
administration of the judicial disability and misconduct 
complaint system. They hear the appeals from the chief judges 
from those complaints.
    On the national level, the national entities and governing 
bodies include the Judicial Conference of the United States, 
which develops policies, provides support for courts, and 
performs necessary oversight. I see that my stop light is on, 
but I'll rush to say that that includes an appellate and a 
trial judge from each circuit.
    I have further information in my written submission, and I, 
of course, stand ready to answer questions and to meet with the 
Committee at any time.
    Thank you.
    [The prepared statement of Judge Sentelle follows:]

    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
                               __________

    Mr. Coble. Thank you, Judge Sentelle.
    Professor Hellman, as I mentioned earlier and I will 
reiterate it, you are no stranger to Capitol Hill. Good to have 
you back here on the Hill.

   TESTIMONY OF ARTHUR D. HELLMAN, SALLY ANN SEMENKO ENDOWED 
         CHAIR, UNIVERSITY OF PITTSBURGH SCHOOL OF LAW

    Mr. Hellman. Well, thank you so much, Mr. Chairman, for 
holding this hearing, for giving me the opportunity to share my 
thoughts on this subject that I've been studying and writing 
about for more than a decade, and thank you especially for 
those generous words of welcome.
    In my view, the system of decentralized self-regulation 
established by Congress in 2008 is sound and does not require 
fundamental restructuring. At the same time, the experience of 
the past few years has revealed a number of gaps and 
deficiencies in the regulatory regime that were not apparent 
before and that warrant attention today.
    Some of these may be appropriately dealt with through 
revision of the rules that were promulgated by the judiciary in 
1980 that have been mentioned here already. But others, in my 
view, should be addressed by amendments by Congress to Title 
28.
    In my statement, I suggest statutory amendments dealing 
with three aspects of the system. One, transparency and 
disclosure. Two, disqualification of judges. Three, review of 
the orders issued by chief judges and circuit councils. Now why 
those three elements?
    One reason is that in each of those areas, the judiciary 
has promulgated rules, like the 2008 rules, that reflect sound 
policy but are in conflict or tension with the statutory 
language. And I will suggest to you that it is not healthy for 
the judiciary to be operating under rules that are or that 
appear to be at variance with the laws passed by Congress. 
That's true in any situation, but it's particularly unfortunate 
when the rules regulate a matter as sensitive as judicial 
ethics with the possibility of imposing sanctions on Federal 
judges.
    Beyond that, each of these elements is, in a sense, 
structural. They determine who makes the decisions and whether 
the public and Congress itself are getting enough information 
to know with confidence whether the system is working as it 
should.
    Now having said that, I don't mean to minimize the role of 
the judiciary in administering the system and improving that 
system. On the contrary, in my statement, I suggest a number of 
steps--quite a few, actually--that the judiciary can take today 
or very quickly without any further authorization by Congress. 
But I do think that for the judiciary to do its job right that 
it does need some help from Congress in the form of amendments 
to Title 28.
    First, disclosure and transparency. From the beginning, the 
administration of the Act has been characterized by a lack of 
transparency and a bias against disclosure. But to some degree, 
the Act itself may be at fault because it includes a strict 
provision requiring confidentiality.
    Now notwithstanding that confidentiality requirement, the 
2008 rules include a new provision that authorizes the chief 
judge to disclose the existence of a proceeding under the Act 
when necessary to maintain public confidence in the 
administration of the Act and the Federal judiciary's ability 
to redress misconduct. I think that is a really good idea and 
that Congress should ratify it and build upon it, and there are 
some details on that in my statement.
    I'll skip now to disqualification. On disqualification, 
there are two kinds of problems. The statute itself provides 
only limited guidance on when judges should disqualify 
themselves from taking part in particular misconduct 
proceedings.
    The current rules have quite a bit to say on the subject, 
but one provision of those rules appears to be inconsistent 
with the statute, and others, in my view, do not adequately 
protect against conflict of interest.
    I think that the rules on disqualification should be part 
of the statute and that there's a simple model, Section 455, 
which deals with litigation. Everybody is familiar with that.
    Finally, review of chief judge and circuit council orders. 
There's a very strong limitation on review in the statute. The 
consequence of this has been that some high-visibility cases, 
the cases that shape public perceptions of whether the Act is 
working, have gone unreviewed. I think those can and should be 
dealt with.
    I'll summarize and conclude by saying that all of the 
suggestions made in that unfortunately lengthy statement of 
mine--all of those suggestions are incremental. What they 
represent is the best practices developed by the judiciary, the 
institutional judiciary and some individual judges over the 
years.
    And I think that by updating the Act to reflect these 
practices Congress can enhance accountability while fully 
respecting and maintaining the independence of the judiciary.
    Thank you. I'd be happy to answer questions.
    [The prepared statement of Mr. Hellman follows:]

    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    

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    Mr. Coble. Thank you, Professor Hellman.
    Mr. Wheeler, good to hear from you.

TESTIMONY OF RUSSELL R. WHEELER, VISITING FELLOW, THE BROOKINGS 
      INSTITUTION, AND PRESIDENT, THE GOVERNANCE INSTITUTE

    Mr. Wheeler. Thank you, Mr. Chairman.
    Mr. Coble. Mike?
    Mr. Wheeler. How's that?
    Mr. Coble. Better.
    Mr. Wheeler. I won't take my full 5 minutes. I want to--I 
should say I endorse generally Professor Hellman's proposals. 
As I said in my statement, I added a few that complement them 
or add to them, which I won't repeat here.
    I did want to emphasize one point about the oft-referenced 
Breyer Committee report. I was privileged to work with the 
Committee, and the point I want to emphasize is this was very 
much a ``let the chips fall where they may'' report. It was not 
undertaken with any conclusions already arrived at, and the 
methodology was quite rigorous, and I describe it very briefly 
in my statement.
    And it did find, however, relatively low levels of 
problematic terminations. Less than 5 percent of the vast 
majority of terminations it looked at were problematic, meaning 
that in most cases, the chief circuit judge should have 
undertaken a more extensive, albeit limited inquiry before 
dismissing the case.
    Now those results, along with the results of a 1991 study 
done for the national commission chaired by former 
Representative Kastenmeier, which used the same method and 
found basically the same results--a very low level of 
problematic terminations--lead me to conclude that with some 
exceptions, effective implementation of this act is now part of 
the culture of Federal judicial administration.
    Now, obviously, we can't say for sure if the Breyer 
Committee study, were to be replicated today, whether it would 
find those same low levels of problematic terminations on the 
part of the courts, but I suspect it would, in part because of 
the enhanced rules that Judge Scirica's committee adopted. And 
I commend the committee as well for undertaking a periodic 
monitoring of the complaints and terminations which come to the 
committee on an annual basis in a method similar to what the 
Breyer Committee used.
    And as I suggest in my statement, I think it might be 
helpful for the judiciary to publish a summary of that 
occasional monitoring in the same fashion as the Breyer 
Committee published its findings, obviously without identifying 
complainants or judges, but providing some sense beyond the raw 
numbers of how the courts are administering the Act.
    That's all I have.
    Thank you.
    [The prepared statement of Mr. Wheeler follows:]

    
    
    
    
    
    
    
    
    
    
    
    
    
    


                               __________
    Mr. Coble. Thank you, Mr. Wheeler. You overcame the 
illuminating light, difficult to do sometimes up here. Thank 
you, sir.
    We try to comply with the 5-minute rule as well, gentlemen.
    Let me start, Judge Sentelle, with you. In your statement, 
you noted that the AO was instrumental in conducting 
investigations of allegations about fraud, waste, and abuse. If 
you will, summarize for us some of the more significant 
investigations the AO has undertaken, the sums involved, the 
corrective actions taken, and provide us with a sense of how 
many such investigations are currently underway.
    Judge Sentelle. I'm not sure I can give you sums involved 
in each instance.
    Mr. Coble. And you could follow up subsequently if you 
can't do it today.
    Judge Sentelle. Let me consult my notes here just one 
moment. In the Southern District of Ohio, there was an 
investigation ordered by the chief judge that engaged a local 
attorney to conduct the investigation, who found that a clerk 
employee had--a clerk of the court had engaged with an improper 
relationship with an employee. The clerk admitted the 
relationship and resigned.
    The chief judge requested an audit of the procurement 
actions conducted by that clerk for a conference, which was 
also a topic in the allegation. The Office of Audit and the 
Administrative Office of the Courts, the AO, conducted an 
audit. They found only about $2,000 in improper payments, but 
they found it. So it was not a big instance--amount in that 
case.
    During the AO's cyclical review of a defender program under 
the Criminal Justice Act attorney panel, concerns were raised 
by one colleague that another one on the panel was padding his 
reimbursement voucher. Notification of the allegations to the 
AO, the chief requested investigative assistance. The AO 
investigator conducted a review of the panel attorney's 
vouchers.
    Now this one has a happy ending. They reviewed thousands of 
dollars worth of vouchers and found that the defense attorney 
had not been in that case padding his vouchers.
    But there was an actual embezzlement investigation in the 
Northern District of Illinois based on allegations that an 
employee was making questionable purchases with the credit card 
of the court. At the request of the chief judge, the AO 
conducted an investigation.
    The investigation determined that the employee had 
circumvented the court's procedures and embezzled approximately 
$35,000 in goods and funds. The AO referred the matter to the 
Department of Justice, and the employee ultimately pled guilty 
to the charge of embezzling Government funds.
    That's three that are readily available. There are others, 
but fortunately, they're usually not big amounts of money. If 
we're doing it right, we're going to catch them when they're 
still pretty small, most of them.
    Mr. Coble. Thank you, Judge.
    Listen, let me start with Professor Hellman. Professor, 
what are the most important steps Congress and the judiciary 
can take to promote greater transparency in the processing of 
judicial misconduct complaints and to, furthermore, assure that 
those complaints are expeditiously and impartially reviewed?
    Mr. Hellman. Is the microphone on? Yes.
    I think that from the standpoint of transparency, there are 
two simple steps that I would like to see the judiciary take, 
and it doesn't need any further authorization. The Breyer 
Committee recommended that every district court should post on 
its--the home page of its website a link to the forms and rules 
for misconduct. That has been done by a majority of the 
districts, a substantial majority. But there are some that are 
not yet in compliance, and I hope that Judge Scirica's 
committee will see to it that all districts are in compliance 
with that.
    Second thing involves the publication of misconduct orders. 
Under the current rules, the circuit councils have the option 
of putting the rules on their websites, publishing them there, 
or making them available in the clerks' offices.
    About half of the circuits now only make them available in 
the circuit's office. It seems to me that it's an easy call--
these should be online. They should be available to everyone. 
Frankly, everyone will now see that most of them are, in fact, 
frivolous, unsubstantiated, and are handled in exactly the way 
that they should be.
    So I think that by putting these orders in a place where 
people can readily see them, that will substantially enhance 
confidence in the judiciary's ability and willingness to police 
misconduct within it.
    Mr. Coble. Thank you, Professor.
    Mr. Wheeler, let us try. Will you try to beat the red light 
again, same question?
    Mr. Wheeler. Well, I endorse what Professor Hellman said. I 
think that the court records in posting information about the 
Act, the rules and the forms, may be a little--my sense is it's 
a little better than he thinks it is if we just don't assume 
that the material has to be exactly on the home page of the 
court. But obviously, it should be available to everybody, 
readily available on the website.
    As to the posting of orders, I also agree with him that 
it's a bit of a no-brainer that they be posted on the website, 
as opposed to simply available in the clerk's office. But I 
would--at the risk of sounding ungrateful, I'd go on to say 
because there are so many orders--there are 900-some orders on 
the Ninth Circuit website--some sort of typology that would 
allow somebody like Professor Hellman, who's trying to figure 
out how the courts are doing, would make a lot of sense.
    That doesn't require a rule change, I don't think. It just 
requires organizing these orders in such a way that the many 
routine orders can be overlooked and let scholars and judges 
and others get to the orders that make a difference.
    Now I commend the committee for posting on the judiciary's 
website what it calls a digest of authorities, which is a 
summation creating a sort of a common law for Federal judicial 
discipline that was recommended by the Breyer Committee, and I 
understand they're going to post that this summer. And that's a 
good step in the right direction.
    Mr. Coble. Thank you, Mr. Wheeler.
    Judge Scirica, I know you want to respond. Let me get to 
you later on. It is just my red light appears. Do you want to 
proceed now?
    Judge Scirica. Yes, sir.
    Mr. Coble. Go ahead, even though my red light is on, they 
won't penalize me too severely.
    Judge Scirica. Thank you very much.
    These are good suggestions, Mr. Chairman. And I think that 
we can accomplish these. Courts are moving toward putting all 
of their orders online, and there have been some additions just 
in the last month. And I think this is something we can do with 
dispatch.
    [Pause.]
    Mr. Coble. Were you finished, Judge?
    Judge Scirica. Yes, sir.
    Mr. Coble. I thank you for that.
    The Chair recognizes the gentleman from North Carolina, Mr. 
Watt.
    Mr. Watt. Thank you, Mr. Chairman.
    And as has started to be my policy, I decided to generally 
defer to my co-counsel before I go and go last. So I think Mr. 
Jeffries was the first one here. So I will defer to him.
    Mr. Jeffries. Well, thank you, Congressman Watt, and thank 
you, Mr. Chairman.
    I thank the distinguished members of the panel and the two 
distinguished judges for your testimony.
    This question is directed to either of the two 
distinguished members of the bench. As was pointed out in one 
of your presentations, the system of government that we have 
has been very strong and robust, 235 years, sets forth three 
coequal branches of government. An independent judiciary is 
clearly important in the context of the robustness of our 
democracy, us being a Nation of laws, not men.
    What do you think is the appropriate role of congressional 
oversight, balancing the interests of our obligation as 
representatives of the people, direct representatives of the 
people, in the context of our democracy with the constitutional 
prescription of an independent judiciary that is a coequal 
branch of government?
    Judge Sentelle. If I might, I can't give you a short answer 
on that. I think if you look back to 1701 to the Act of 
Settlement, the rider on that act that established the 
succession of the British crown created a judiciary that was 
protected in its tenure from removal and reduction in income by 
the king because the people of England had lost faith that the 
judges would take their cases and rule with justice against the 
crown.
    In the time of the Declaration of Independence, the crown 
had violated that principle in the appointment of colonial 
judges so that, again, one of the grievances set forth in the 
Declaration of Independence is that the judges do not serve 
independently. They're under the thumb of the crown.
    So the general principle would be that you need enough 
independence in the judiciary so that the public does not 
perceive that the political branches--and I use ``political'' 
not in a disparaging sense, but in the sense of the branches 
who are politically accountable--would not--are not controlling 
the independence of the judiciary.
    Now that's a very general answer, but I understand that 
Congress has to have the role of deciding are we spending the 
people's money wisely, for example? And if we're not, you need 
to find that out. You have to have oversight to find that out, 
and you have the responsibility of doing something about it.
    If we are not obeying the laws that you have set forth, or 
if those laws are not properly managing what the courts are 
doing, then, of course, you have the responsibility as the 
representatives of the people to correct that.
    Mr. Jeffries. With respect to, Judge, if I might--and I 
don't generally get the opportunity to actually interrupt a 
judge. So I do it respectfully.
    Mr. Watt. That is the prerogative of being in Congress now?
    Mr. Jeffries. I am a new Member. So I am learning that 
prerogative. [Laughter.]
    Thank you, Congressman.
    With respect to the management of the people's money, what 
has the impact of the sequestration cuts been, in your view, on 
the ability of the judiciary to provide for generally the 
efficiencies of its operation in the administration of justice? 
But specifically on this issue, how might it impact your 
capacity to provide for the type of self-governance that 
currently is the system that is in place?
    Judge Sentelle. Do you want that one? The impact of the 
sequestration on the judiciary is as broad as the judiciary is. 
Just as you see in the executive branch and in the legislative 
branch, every area is impacted.
    We have clerk of courts offices that have people who are--
either are or expecting to be furloughed, losing days a week. 
We have the problem in the defender system, which is funded 
through the courts that, actually, defender lawyers, as well as 
prosecutors over in the U.S. attorney's office--that's the 
Justice Department. But the defender lawyers are being 
furloughed so that we cannot hear--many districts cannot hear 
criminal trials but 4 days a week because of the furlough of 
the defender.
    So that justice is being delayed in that regard and then 
will be denied. Because justice delayed is justice denied. So 
far as that affects the governance as such, Congressman, I'm 
not sure that I can say that I see a way in which it affects 
self-governance as such at this point.
    But it affects us in a myriad of ways in that we can't get 
our job done in a lot of ways as efficiently and as effectively 
as we'd like to do. The most disturbing to me is the effect on 
the defender system because you have the average defendant in 
Federal court now is in custody awaiting trial.
    Now some of--all of those people are presumed to be 
innocent. Some of those people may be innocent. So that you 
have people who ultimately are acquitted who stayed in jail 
longer than they should have because the system could not get 
to their trial because the defenders had to be laid off a day a 
week.
    Now that's not directly governance, but perhaps you got 
somewhere close to what you were asking for.
    Mr. Jeffries. Well, it certainly relates to the fair 
administration of justice within the system.
    I thank you.
    Mr. Coble. Thank you, Mr. Jeffries.
    The Chair recognizes the gentleman from Pennsylvania, Mr. 
Marino.
    Mr. Marino. Thank you, Chairman.
    Good afternoon, gentlemen. It is a pleasure.
    I am going to invoke what I learned from Justice--Judge 
Caputo and Judge Munley in the Third Circuit of Pennsylvania. 
``Tom, keep your questions short and make sure your witnesses 
keep their answers even shorter.''
    So I am going to try and have each of you address this. So 
the question is--I will start with Professor Hellman. Sir, do 
you see any way, short of impeachment, any system by which 
Congress can investigate a particular Federal judge?
    Mr. Hellman. I think that there are opportunities for 
investigating what the courts do. Investigating non-impeachable 
behavior I think would raise very troublesome questions under 
the Constitution.
    If I understand your question correctly?
    Mr. Marino. Yes.
    Mr. Hellman. Yes.
    Mr. Marino. Mr. Wheeler, please?
    Mr. Wheeler. I have nothing to add to that. It's fairly 
rare that such occasions arise in which I think Congress might 
want to undertake that kind of investigation. But I think 
Professor Hellman is right that it would create problems fairly 
soon, especially when I think the judiciary is doing a pretty 
good job of taking care of itself.
    Mr. Marino. And if the judges concur with that, just nod, 
and I will go on to my next question unless you want to 
specifically address the issue.
    Judge Scirica. I do concur. But let me just add a little 
footnote to that. If our disciplinary system is investigating a 
particular judge and we believe that that person may have 
committed a crime, we have an obligation to talk to the 
prosecutors about that and to make sure that nothing in our 
system is going to impede the proper prosecution of that 
particular individual.
    So there is some relationship. There is some back and forth 
between the judiciary and, let's say, the U.S. attorney on some 
of these matters.
    Mr. Marino. Judge Sentelle, anything to add, sir?
    Judge Sentelle. I fear that if I talk, I'd subtract rather 
than add. I think everything has been well said, and I would 
simply do what's wise for a preacher sometimes to say amen and 
shut up.
    Mr. Marino. Hallelujah. I had--I practiced in the Third 
Circuit as a U.S. attorney and tried my cases before a 
distinguished court in the Middle District of Pennsylvania. And 
what advice or recommendations would you two judges give we in 
Congress about making the system more efficient and more equal 
for the American citizens?
    Judge Scirica. If----
    Judge Sentelle. You backed off. You're asking what can 
Congress do to make the system more equal or more effective for 
the citizens?
    Mr. Marino. Yes.
    Judge Sentelle. I'll risk being a little controversial, I 
guess. For one thing, not long ago when we were wanting to have 
some additional bankruptcy judges to get bankruptcies handled, 
we were told we had to come up with the money. And it was 
suggested that we might get that by raising the fees in 
bankruptcy.
    Raising of fees generates money perhaps, but part of what a 
government provides is an effective court system that is 
reasonably accessible to its citizens. And I think perhaps 
sometimes we're asked to use fee levels to an extent that may 
make the system less equal by making it less accessible to the 
breadth of the citizenry.
    That was a very small, esoteric, and perhaps controversial 
matter that comes to mind, but I believe that----
    Mr. Marino. I happen to agree with you.
    Judge Sentelle [continuing]. Pay as you go, PAYGO is not 
always a good way to approach the dispensation of justice.
    Mr. Marino. Anything to add, Judge Scirica?
    Judge Scirica. No, I do not.
    Mr. Marino. Gentlemen, thank you very much.
    And I yield back my time.
    Mr. Coble. I thank the gentleman.
    The Chair recognizes the distinguished gentleman from 
Louisiana, Mr. Richmond.
    Mr. Richmond. Thank you, Mr. Chairman.
    Thank you to the Ranking Member.
    I am trying to separate what I remember regarding attorney 
discipline and judiciary discipline. Is there a database or 
does every circuit keep track of every complaint that is filed 
against a judge?
    Judge Scirica. Yes.
    Mr. Richmond. And the final disposition of each one of 
those becomes public?
    Judge Scirica. Yes, sir.
    Mr. Richmond. So there would be no instances of, for lack 
of a better description, a deferred adjudication for judges 
where there is a private letter of reprimand or something of 
that nature? That doesn't exist on the Federal level?
    Judge Scirica. There could be--there could be a private 
letter of reprimand where the judge's name was not made public. 
Yes, that is correct.
    Mr. Richmond. And in a sense of transparency and just, I 
guess, transparency, what is the purpose behind that?
    Judge Scirica. Well, I think that if a private reprimand 
were issued, at least to me, it would be an indication that the 
matter had not been that serious. Perhaps it had been a one-
time transgression, and perhaps it had not even hit the public 
eye.
    I've--I was chief judge for 7 years, and I never issued a 
private reprimand or a private censure. And I think that it is 
pretty rare, but it certainly does happen. I think when matters 
are more serious, a public reprimand is called for, and in 
those instances, the judge's name is made public.
    Mr. Richmond. Do you think there is still a justifiable 
need or purpose served by having a private letter or private 
reprimand?
    Judge Scirica. Well, I've often wondered about that myself. 
Because chief judges typically talk to judges who have gotten 
into trouble and counsel them, guide them, and sometimes end up 
taking action that's going to result in more serious--in more 
serious action, where there is an actual public reprimand or 
could result in a judge having cases suspended so that no cases 
would be sent to that judge for a period of time or, in the 
more serious instance, ask the judge to voluntarily resign.
    Mr. Richmond. And Judge, please feel free to weigh in if 
you would like. It appears to me, especially with Federal 
judges because the likelihood of removal or the obstacles to 
get to removal are so great, the hurdles are so great, that 
removal is not usually the final outcome why there would be a 
need to keep it private.
    When judges that are elected, then it can be used in 
campaigns and things of that nature. But a judge that is 
appointed basically for life, barring something very, very 
serious and our action, what is the public purpose of keeping 
any disciplinary action private would be my general question? 
And Judge, if you have more to add to it, please feel free, 
either judge.
    Judge Sentelle. Judge Scirica has more expertise on this 
than I. I think you make a very good point. There is a reason--
now let me say at the outset, this may not be a good enough 
reason. But as Professor Hellman pointed out, the vast majority 
of the complaints that are filed are frivolous.
    They're rather like some mail that you know that you get in 
all your congressional offices from somebody who thinks that 
the CIA is stealing their brainwaves. Well, these people think 
that because the judge has ruled against them, it must have 
been a conspiracy with some vast left or rightwing conspiracy 
against him.
    And I think the sense is that we don't want to gratify 
those people by or aggrandize those people by publishing or 
publicizing the frivolous attacks on the judge. The other 
reason, and again, I don't know if it's good enough or not, is 
that if the complaint is not frivolous, but rather is 
scurrilous, that is it's false--it would be a legitimate 
complaint if it were true, but it's false--that again, we don't 
want to spread the slander.
    Now it may not be that those are good enough reasons, but 
they are two reasons that are sometimes assigned.
    Mr. Richmond. Well, with the complaint, I would tend to 
agree. But any private letter of discipline, I would--that is 
what I am having----
    Judge Sentelle. Private letter of discipline, I think you 
have a very good point. I was chief for 5 years. I never issued 
a private letter of discipline, but I did on one occasion take 
other remedial action with a judge when there was a legitimate 
complaint that he just wasn't getting his work out. And I went 
and met with him and tried to help him come up with ways to get 
his work out.
    I did not enter any kind of order that went on the public 
record on that, but as far as an actual reprimand privately, I 
haven't done it. But I know that shortly before I came onto the 
court, which was 1987, there had been a private reprimand 
issued against a judge. And since the complainant has a right 
to know what happened to his complaint, he knew about it. And 
so, the complainant actually made it public.
    The judge was irate, said these are supposed to be 
confidential. And we--by then I was on the court, and we said, 
look, we can't stop the public from releasing this information. 
If he knows it, he has a First Amendment right.
    If there's a reprimand there and the complainant knows it, 
they could make it public. And I don't know that there is a 
very good reason for not making it public to begin with.
    Mr. Richmond. Thank you, Judge.
    And thank you, Mr. Chair.
    Mr. Coble. Thank you, Mr. Richmond.
    The gentleman from North Carolina, Mr. Holding, is 
recognized.
    Mr. Holding. Thank you, Mr. Chairman.
    Judge Sentelle, it is always a pleasure to see you. Judge 
Scirica, your reputation precedes you, and it is a pleasure to 
meet you.
    I would point out, as a matter of trivia, that the 
Chairman, the Vice Chairman, Judge Sentelle, and myself all 
served as assistant United States attorneys at one point or 
another, and there might be some other Members of the Committee 
who did so as well. So my question harkens back from that 
experience.
    I guess there are 93 Federal districts, and each one has 
their own local rules and local traditions of practice. In some 
of those Federal districts where colleagues of mine were 
serving as U.S. attorneys, they had a pervasive problem with 
frivolous complaints about ethics or prosecutorial misconduct. 
And the way the Department of Justice worked with the Office of 
Professional Responsibility that whenever one of these 
complaints would go in, it would go up to main Justice and 
trigger an investigation and a process which was kind of a one-
size-fits-all process that could be very onerous, and it could 
put an assistant United States attorney out of commission for a 
long time complying with the investigation.
    Oftentimes, they were found to be trivial, but it is a one-
size-fits-all investigation. So my question is, is anything 
being contemplated here, change wise, that would foster a 
situation where those types of compliance could become 
burdensome on the judiciary?
    Judge Scirica?
    Judge Scirica. I don't--yes. I don't think so. I think that 
all of these complaints are taking--taken seriously. Ninety-
five percent of the complaints on an annual basis are filed by 
either prisoners or by pro se litigants in civil cases.
    And as Judge Sentelle mentioned, most of them allege some 
form of corruption or collusion or bias, but without any facts, 
without any reference to the record, or anything that can be 
checked. And when you read the complaints, you see that folks 
are angry or upset because of the result in the case, because 
they may be serving a long prison term, or some are just 
mentally ill and they can't let go of a loss or of a prison 
sentence.
    I think the system does pretty well. Sometimes we do get 
abusive complaints. That is serial complaints from the same 
individual. When that happens, after a period of time, we have 
show cause orders that work in order to prevent them from 
filing more complaints.
    But in our circuit, we take the complaints and--but we have 
to approve the filing. That is we review it before we allow the 
complaint to go ahead if somebody has filed several complaints.
    I don't think there's any real effective sanction that you 
can impose on these individuals. Most of them don't have money. 
Many don't have jobs. Many are in prison. And, but each one is 
entitled to have his or her complaint heard, and that is what 
is done.
    The fact that there are so few complaints that reach a 
special committee and reach my committee, which is in some 
degrees the end of the road, I think is pretty good evidence 
that the Federal judges are doing their jobs properly, that the 
great majority of these complaints are not founded. But they 
all get a hearing, and they're dealt with, I think, 
appropriately.
    Mr. Holding. Thank you.
    Professor Hellman, I want to follow up quickly on Mr. 
Marino's question. I think we are all in agreement that it 
would be difficult for Congress to do non-impeachment hearings 
of Federal judges. But what about in the instance--there are 93 
Federal districts. They have local rules.
    What about investigations of local rules in particular 
districts? For instance, you might have a district that has 
local rules that cause a litigation outcome or a litigation 
process that is different from any other district in the United 
States and, as such, is a magnet for a particular type of 
litigation.
    What would the proper role of Congress be in looking at 
that from an oversight perspective?
    Mr. Hellman. One of the things----
    Mr. Coble. Mike?
    Mr. Hellman. One of the things Congress certainly has 
control over is venue, where suits can be brought. And in fact, 
Congress has from time to time changed the venue statutes when 
it has felt that people were using particular districts as a 
magnet for litigation that didn't necessarily belong there.
    But the other thing I would say is that a separate process 
of the Judicial Conference is the review of the rules made by 
the districts for litigation. And I think that probably the 
first step if there are concerns about local rules that are 
inconsistent from one district to another is to bring that to 
the attention of the Rules Advisory Committee because they play 
a very active role in trying to bring uniformity to the 
procedures in the various Federal courts.
    Mr. Holding. Thank you, Professor.
    Mr. Coble. Thank you, Mr. Holding.
    The Chair recognizes the gentlelady from Texas, Ms. Jackson 
Lee.
    Ms. Jackson Lee. Thank the Chair and the Ranking Member.
    Thank the witnesses very much. Good to see you, Judge and 
professors.
    I am going to ask a specific question, then go into a 
policy question that I hope you all will just comment on. The 
specific question deals with the 2008, the judiciary rules 
included a strong provision that prohibited a chief judge who 
had entered a final order from participating in any subsequent 
consideration of a petition for review of that order by the 
Judicial Council.
    That policy provided an assurance to the petitioner that 
the decision of the Judicial Council would not be unduly 
influenced by the chief judge who had already rendered an 
order. And in the 2008 national rules, the policy was 
completely reversed, and the judiciary provided, to my 
understanding, no explanation in doing so.
    The two judges, would you comment on that?
    Judge Scirica. Yes. You are certainly correct. The rules 
changed the prior practice that was set forth in what were 
called the illustrative rules. And the reason, I think, was 
because it was decided that this process should be mainly an 
inquisitorial or an administrative process.
    Obviously, there is some adversarial nature to it, but it 
should be more in the nature of an inquisitorial process to try 
to get at the facts. And for the judge who is directing the 
investigation making certain findings, making references to a 
special committee, for example, dealing or sitting on the 
council, it was thought that they could play both roles.
    And, but let me say that I think that is a--that is a 
legitimate and fair criticism of the rules now, and as a matter 
of fact, I can tell you that some circuit chiefs on their own 
have disqualified themselves under the disqualification 
provision in the rules. That they choose not to sit when the 
matter is being reviewed by the circuit council, and this is 
something that we can take up as well.
    Ms. Jackson Lee. I would encourage that, and I appreciate 
the comment, Judge.
    Judge?
    Judge Sentelle. Well, before I begin my direct answer, I've 
connected with all the North Carolina Members on the panel, and 
I would say that you and I have a connection that I'm sure 
you're not aware of, in that my daughter is a professor at the 
University of Houston.
    Ms. Jackson Lee. Very much have a connection. Thank you.
    We very much have a connection. I hope they are treating 
you well. One of the great schools of this Nation.
    Judge Sentelle. Good.
    Ms. Jackson Lee. Thank you.
    Judge Sentelle. I would pretty much echo what Judge Scirica 
said. I had never thought about the chief judge passing on the 
matter that he had just passed on until I became chief judge. 
And although it is the case that nearly all of these complaints 
are frivolous and valueless, it still seemed to me more than 
passing strange that I was receiving a vote sheet on our 
computerized program to vote to affirm or reverse or vacate my 
own decision.
    Ms. Jackson Lee. Your own decision, yes.
    Judge Sentelle. I think you're raising a very legitimate 
concern there.
    Ms. Jackson Lee. And I thank you for that, and if we can 
leave that matter open, I think the judges were forthright in 
their assessment. And that is the thought as I had raised this 
question of the potential conflict and/or bias, not determined 
biased.
    I am going to now ask some policy questions, and I would 
appreciate it if you both, the professor and Mr. Wheeler, along 
with our judges. Just a broad issue on judicial discretion. Of 
course, we have mandatory sentencing in some aspects of the 
court. But have we so restrained the court that discretion 
now--and when I think of discretion, I think of mercy--is not a 
viable option.
    And I give as an example, this was a case dealing 
generically with alleged Medicare fraud. This is pervasively 
dealing with African-American doctors and an individual who was 
tried. The court said, ``And I am going to make an example out 
of you.''
    Now Members of Congress sit at this dais and say a lot of 
things, but I wonder how that relates to justice? And just 
quickly, I would appreciate what do you think the number of 
vacancies we have on the Federal bench does to justice?
    Mr. Hellman. Mr. Wheeler is the expert on vacancies. So he 
can give us some information about that.
    Mr. Wheeler. Well, the vacancy rate now you know is around 
10 percent. It's more serious in some districts than it is in 
others. In your home State, for example, I think there are six 
vacancies.
    Ms. Jackson Lee. Very serious, yes.
    Mr. Wheeler. And in a State that's dealing with an overload 
of immigration and border crossing litigation. So I think some 
courts can handle the vacancies. There's always going to be a 
few vacancies. I think at 10 percent, it's pretty serious.
    And it's not the House's responsibility, but I think both 
the White House and the Senate have some work to do. I can't 
say anything much more beyond that.
    Ms. Jackson Lee. Thank you, Mr. Chairman.
    If I can get my other answer, if any of the witnesses would 
care to--care to answer the policy question on discretion maybe 
in writing if my time is----
    Mr. Marino [presiding]. Without objection.
    Ms. Jackson Lee. Thank you.
    Mr. Marino. The Chair now recognizes the Ranking Member, 
Congressman Watt.
    Mr. Watt. Thank you, Mr. Chairman.
    And thank all of my colleagues for their excellent 
questions. I generally try to go last because a lot of times 
they have other obligations and need to leave, and as the 
Ranking Member, I am kind of obligated to be here whether I 
need to leave or not. So, and they clean up a lot of 
interesting issues that I don't have to deal with.
    Judges Scirica and Sentelle, Professor Hellman, and by 
affirmation Mr. Wheeler have made a number of suggestions for 
us moving forward. I am wondering whether there are any of 
those suggestions to which you react either overwhelmingly 
favorably or, even more important, probably overwhelmingly 
unfavorably? And so, that would be my first question.
    I am particularly interested, I think, in--not that I am 
not interested in the rest of Professor Hellman's 
recommendations, but I am especially interested in the area 
that might be a little bit more controversial, and that is with 
respect to recusal of judges, which in my experience has been 
an area in which judges have tended to want to have less 
outside involvement than their own particular judgment about 
whether they have a conflict, perceived or real, or not.
    So if you all could address whether you have any particular 
negative or countervailing--maybe not negative responses to 
what Professor Hellman is--but maybe some countervailing 
arguments on the other side of what he has suggested might be a 
more appropriate way to frame the question.
    Judge Scirica. Well, recusal has always been a matter that 
is handled on direct appeal. It is part of the merits of the 
case. That is not to say that certain conduct might not also 
constitute judicial misconduct and could, in effect, be 
prosecuted under both the Misconduct Act and the rules we have 
before us.
    If the judge, for example, exhibited some bias toward an 
individual or toward a group of people, or acted in a certain 
way that really was offensive in a certain manner, that person 
might very well be subject to a misconduct complaint, as well 
as to a direct appeal, because that individual did not recuse.
    So I'm not sure that I completely understand the thrust of 
Professor Hellman's remarks in this area, but it seems to me 
that the system now is working quite well. People can even take 
interlocutory appeals on recusal issues during the pendency of 
a case. And I probably handle one of these a month, if not--if 
not more. And sometimes we grant them during the course of 
pendency of the action.
    Mr. Watt. Judge Sentelle?
    Judge Sentelle. In common with Judge Scirica, I'm not sure 
that I'm fully understanding the thrust of Professor Hellman's 
point. I don't see that there is a great problem that needs to 
be fixed. Maybe there is, but I'm not seeing it at this point.
    We get apparently a good deal less recusal litigation than 
does the Third Circuit because I rarely see one, and I don't 
think I would know----
    Mr. Watt. Well, I think I am more concerned about the 
litigation aspects of it than the appearance aspects of it, and 
I would expand the question perhaps to include some appearances 
that are taking place on the Supreme Court, which--from which 
there can be no appeal, where there appear to be financial 
interests.
    And so, what do we do in that situation, I guess, is--and 
Professor Hellman, if you care to weigh in to clarify your 
suggestions in this area, I think the Chair would grant me a 
minute or two----
    Mr. Marino. Most definitely.
    Mr. Hellman. Thank you, Mr. Watt. I appreciate that.
    Actually, I have made no suggestions about changing the 
handling of disqualification motions in the district courts. I 
raised the question whether the current rule--which is that 
judicial disqualification decisions can never be the subject of 
a misconduct complaint unless there's a real pattern or unless 
there is a bad motive--I raised the question whether that 
should be reconsidered.
    My suggestions about disqualification and recusal relate 
solely to the misconduct process itself, and the suggestion I 
made is that in the misconduct process itself, judges should 
follow the same rules that they do in litigation, namely they 
should disqualify themselves and should be required to 
disqualify themselves whenever their impartiality could 
reasonably be questioned.
    Right now, what the rule says, the judge, in his or her 
discretion, decides whether he or she should recuse. That's it. 
I think the Section 455 standard should be applied in 
misconduct proceedings. That's the only suggestion I made on 
that specific point.
    Mr. Watt. Responses?
    Judge Scirica. Very shortly, I've always believed that in 
certain circumstances a judge could run afoul of the recusal 
statute and the Misconduct Act at the same time. There can be 
overlap. And just because it's a recusal motion does not 
necessarily mean that a misconduct complaint, a valid 
misconduct complaint, might not lie.
    Mr. Watt. So are you suggesting perhaps some clarification 
on that might be appropriate?
    Judge Scirica. Well, I always thought it was completely 
clear, and I've applied it that way.
    Judge Sentelle. Yes, I'm thinking of an example, 
Congressman, with respect to where a judge's failure to recuse 
could be the subject of a misconduct complaint but was not 
directly appealed. Anybody can bring the misconduct complaint. 
You don't have to be a party to the lawsuit.
    If you're in the court and you see the judge committing 
misconduct, you can complain about it without being a party to 
the lawsuit. So that a person not--you don't have to have 
standing like you do in an Article III proceeding. So that a 
person not a party to the lawsuit might see the lawsuit settle 
after she had seen the judge commit some gross act of failure 
to recuse, could still come in and make the complaint to the 
chief. And the chief could still take action as judicial 
misconduct.
    Now the broader principle of what Professor Hellman is 
saying, as far as making it plain how the judges should recuse 
in the misconduct proceedings, I don't find troubling.
    Mr. Watt. Could I just ask one more question, Mr. Chairman? 
Just to clarify what happens in the Supreme Court now. There is 
no appeals process there. Do they have an internal process for 
kind of ferreting out potential appearances of conflicts, or is 
it solely in the discretion of a member of that high court 
whether to disqualify or recuse one's self from a case?
    Judge Scirica. I certainly don't want to speak on behalf of 
the Court, but the Court has said that it looks to the Code of 
Conduct that applies to all Federal judges. It looks to 
precedent. It looks to other treatises. They--like other 
judges--they may discuss these matters amongst themselves.
    They feel that these are the sources from which they have 
to derive guidance, and so I think that just like with us, that 
an individual judge decides whether or not he or she should 
recuse under a certain circumstance. And that is subject to 
review.
    Mr. Watt. I appreciate the response. I want to make it 
clear on the record that I am not questioning any particular 
decision that has been made by any of the Supreme Court 
Justices. We are just trying to see whether there might be some 
other process.
    Mr. Wheeler, did you have a point to make on that?
    Mr. Wheeler. Well, just very briefly, there was, as you may 
know, a bill introduced last year in the House that would have 
tried to regulate that. And I can certainly understand the 
frustration of some Members about some of the behavior they 
observed.
    But I think this may well be an area in which you just have 
to live with the results, that any kind of legislation is going 
to do more damage than putting up with the occasional instance 
in which a justice, whomever it may be, perhaps does something 
that raises the eyebrows.
    Mr. Watt. I thank the Chairman for his--yield back.
    Mr. Marino. I believe that Congressman Holding would like 
to be recognized for a moment?
    Mr. Holding. I want to thank the witnesses very much. And 
Judge Sentelle, as I said, it is always a pleasure to see you. 
I will be with Judge Whitney this evening, and I will convey 
your regards to him.
    I am going to submit a question to the record to flesh out 
a bit more on the local rules and review of local rules because 
it is something that interests me.
    So thank you all very much. I yield back.
    Mr. Marino. The Chair recognizes the Chairman.
    Mr. Coble. I also want to express my thanks to the panel. 
We appreciate you all being here, and we will do--we will plow 
this field again, I am sure.
    Yield back.
    Mr. Marino. Thank you.
    This concludes today's hearing. I want to thank all of our 
witnesses for attending. I would like to thank also the people 
in the audience for being here as well.
    Without objection, all Members will have 5 legislative days 
to submit additional written questions for the witnesses or 
additional materials for the record.
    Again, gentlemen, thank you very much.
    This hearing is adjourned.
    [Whereupon, at 3:26 p.m., the Subcommittee was adjourned.]


                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record


 Response to Questions for the Record from Thomas F. Hogan, Secretary, 
                Judicial Conference of the United States











                                

Response to Questions for the Record from Arthur D. Hellman, Sally Ann 
     Semenko Endowed Chair, University of Pittsburgh School of Law







                                

Response to Questions for the Record from Russell R. Wheeler, Visiting 
   Fellow, The Brookings Institution, and President, The Governance 
                               Institute



                                 
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