My Blog List

Thursday, March 7, 2019

Oversight of Judges

The House Judiciary Committee needs to look at Federal Judges, as part of their oversight, starting with Justice Ellis, especially with the Senate confirming so many poorly vetted & horrible people to the bench.

There is just too much evidence of wrongdoing to ignore:
Justice Thomas and his political activities off the bench,
... these need to be looked at.
Justice Kavanaugh and the information left out of his confirmation hearings.
The entire current rapid fire & corrupt confirmation process.
Please look at these subjects and call witnesses to testify:
It may be too early to impeach, but it is never too early to do oversight!
cc:
@RepJerryNadler
@marygayscanlon
@tedlieu
@RepTedDeutch

During Good Behavior

The Constitution States:

“Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior”

Gold Standard “During Good Behavior”

Hamilton put faith in this standard:

“The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.” [Fed78]

Madison Agreed. In Federalist 38 he writes:

“according to the most respectable and received opinions on the subject, the members of the judiciary department are to retain their offices by the firm tenure of good behavior.” [Fed38]

Federalist 38 and 65 Defining “During Good Behavior”

Unquestioningly the Founders intended Judges to be “regulated”, implying overseen, by the legislature. Congressional oversight of the Judiciary is for the purpose of defining & enforcing "good behavior." Which means that judges aren't to be impeached for their personal opinions or private views, but for bad behavior that leads to abuse of power, law or constitution or would make them susceptible to graft, extortion or destroy their credibility.

Madison says:

“The President of the United States is impeachable at any time during his continuance in office. The tenure by which the judges are to hold their places, is, as it unquestionably ought to be, that of good behavior. The tenure of the ministerial offices generally, will be a subject of legal regulation, conformably to the reason of the case and the example of the State constitutions.” [Fed38]

Should not be an arbitrary process

Congress has a duty to look at the behavior of judges, and to remove them from office on evidence of bad behavior, through the impeachment process. Unfortunately, historically the process for doing this has tended to be arbitrary.

“Impeachment proceedings have been brought against 12 Federal officials; only four have been convicted. Only one of the 12 was a Supreme Court justice, Samuel Chase, who was acquitted by the Senate in 1805 after the House had impeached him for partisan, harsh and unfair conduct during trials.” [cqpress]

Violating the code of judicial conduct ought to be impeachable. But too many impeachment cases have been political.

John Pickering

In 1804 John Pickering was impeached on charges of “unlawful rulings” and drunkenness. The case was controversial as the Federalists claimed that the charges were political. But in the end, when it reached the Senate, the Senate ruled on the articles and convicted him.

Samuel Chase

A supreme court justice was among the first officers removed by the Early Government. Samuel Chase was impeached by Congress in 1804, by the House and acquitted by the Senate.

Arbitrary Impeachment: O'Douglas

The far right in this country was constantly trying to impeach "liberal" judges such as William O'Douglas. They also tried to blackmail or force resignations. In 1970 they succeeded in driving Abe Fortas off the bench for admittedly accepting a:

“retainer from the family foundation of Wall Street financier Louis Wolfson, a friend and former client, in January 1966.[28] Fortas had signed a contract with Wolfson's foundation. In return for unspecified advice, it was to pay Fortas $20,000 a year for the rest of Fortas's life”

This clearly violated any sane rules of ethical conduct. If he'd tried to remain on the bench he'd have been impeached in a bi-partisan fashion. Encouraged by this they want after William O'Douglas:

In 1953 the House tried to impeach O'Douglas “after he had granted a stay of execution to convicted spies Julius and Ethel Rosenberg.”

In 1970 they tried again with a list of charges including:

That in 1966, Douglas dissented in a 5 to 4 decision that upheld the obscenity conviction of Ralph Ginzburg, publisher of Eros.
They alleged that O'Douglas should have recused from the case due to his relationship with Ginsburg, including publishing books and articles in his publications.
They also alleged he'd engaged in legal work for the Albert Parvin Foundation and been paid for it. The RW in congress alleged that that foundation was a left wing organization as was the Center for the Study of Democratic Institutions.

Gerald Ford tried to bypass the Judiciary Committee and do an exclusively Republican impeachment. In the end they found that he hadn't violated the law or Judicial ethics codes. It was pretty clear to all, but rw, observers that the O'Douglas impeachment had been partisan. This did Democrats no favor since everything they accused O'Douglas of doing has become a ceiling on even worse bad behavior by RW justices since then, such as Thomas, Scalia and Brown. They could point to O'Douglas and say "If he can take a 300$ payment then I'm entitled to my 60,000$ emolument from book sales (Scalia).

Defining Good Behavior

In order for Congress to do their oversight duties they must first clearly define what good behavior is and ensure that guidelines for what that behavior are established and that those guidelines apply to both the Supreme Court and its lesser courts. Currently the Supreme Court seems to think they are immune from the Code of Conduct for the Judiciary. This needs to change.

It is Congresses job to disabuse them of that conceit. "Good Behavior" standards apply to everyone. It is up to congress to codify and enforce that code.

Canon 1: A Judge Should Uphold the Integrity and Independence of the Judiciary
Canon 2: A Judge Should Avoid Impropriety and the Appearance of Impropriety in All Activities
Canon 3: A Judge Should Perform the Duties of the Office Fairly, Impartially and Diligently
Canon 4: A Judge May Engage in Extrajudicial Activities That are Consistent With the Obligations of Judicial Office
Canon 5: A Judge Should Refrain From Political Activity
Compliance with the Code of Conduct
Applicable Date of Compliance
https://www.uscourts.gov/rules-policies/judiciary-policies

And judges who engage in sexual harassment or violate that code should be impeached.

Sources and Related Posts

http://avalon.law.yale.edu/18th_century/fed78.asp
http://avalon.law.yale.edu/18th_century/fed38.asp
https://pages.wustl.edu/calvert/articles-impeachment-against-justice-chase
https://www.encyclopedia.com/history/dictionaries-thesauruses-pictures-and-press-releases/impeachment-trial-samuel-chase
https://www.gpo.gov/fdsys/pkg/GPO-HPREC-HINDS-V3/pdf/GPO-HPREC-HINDS-V3-20.pdf
https://www.jstor.org/stable/1843004?seq=1#page_scan_tab_contents
https://library.cqpress.com/cqalmanac/document.php?id=cqal70-1292316

No comments:

Post a Comment