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Congressman James Sensenbrenner recently floated the idea of creating an office of inspector general to watchdog the federal judiciary, prompting fears that Congress could carry the authority beyond monitoring the judicial purse. Sensenbrenner, a Wisconsin Republican and head of the House Judiciary Committee, told a Stanford University audience on May 9 that his committee “is investigating whether Congress needs to create an office of inspector general for the federal judiciary.” He said further that he did not believe “that creating an IG for the judiciary will violate the separation-of-powers doctrine that promotes the independence of the three branches of government.” The traditional mission of an inspector general, first used by the Continental Congress in 1777 to oversee the functioning of the military, is to investigate potential fraud and waste of tax dollars by agencies of the executive branch. At a time of high tension between Congress and the judiciary, Sensenbrenner’s proposal brought a reaction from Supreme Court Justice Anthony M. Kennedy. He told an 11th Circuit judges’ conference in Florida last week that courts should be accountable, but that he sharply rejected the idea of Congress punishing judges for decisions it doesn’t like. “Context is everything,” said Charles Geyh, professor at Indiana University School of Law-Bloomington who has written extensively on relations between the courts and Congress. “In the abstract, there is nothing wrong with judges being accountable for the money they spend,” he said. “But the backdrop here is a fairly carnivorous House trying to hold judges accountable for the decisions they make. This proposal is not made in the context of judges spending lavishly. It is being used as a proxy for their decisions,” Geyh said. “It is pretty thinly veiled at that,” he said. Congress is suggesting to judges, “We may look more closely at the [judiciary] budget if we don’t like the decisions you make.” Discussions of the proposal are in the early stages. There is no bill in the hopper. Nor are hearings contemplated, said Jeff Lungren, spokesman for Sensenbrenner on the Judiciary Committee. Lungren indicated that the talking is mostly among staffers on the Republican side. He indicated that the idea has been “well received” among House and Senate staff, but declined be more specific. Chief Judge Joel Flaum of the 7th U.S. Circuit Court of Appeals said that the speech lacked specifics. “I really want to see the details because it can run from soup to nuts. We need some fleshing out” because of the separation of powers issues, he said. Misconduct reviews Sensenbrenner’s frustration with the court’s self-policing to resolve allegations of misconduct is well known. He has expressed displeasure with alleged changes in the process used in the 6th Circuit to select the three-judge panel to hear the Michigan affirmative action case a few years ago, and with controversial testimony on sentencing issues in 2002 by U.S. District Judge James Rosenbaum of Minnesota. “I think he’s long been concerned about judicial ethics in the broad sense,” said Carl Tobias, a professor at the University of Richmond School of Law in Virginia. Sensenbrenner has expressed concern that the discipline system created in a 1980 statute has not been sufficiently rigorous, Tobias said. Sensenbrenner warned in the Stanford speech that “Congress would step in if the federal judiciary did not do a better job discharging this responsibility.” A review of court statistics for the most recent seven years available, 1997 to 2003, shows very few public or private censures were issued against judges compared with the number of citizen complaints. During that period, chief judges in three circuits issued five public censures and a private one to individual judges, while the number of complaints averaged 759 per year. Those censures came in three circuits, the 6th, 9th and 10th. The remaining circuits had not issued a single reprimand during that period. “You must understand the overwhelming majority [of complaints] come from disgruntled litigants and do not come within the purview of discipline procedure,” said 9th Circuit Chief Judge Mary Schroeder of Phoenix. The statistical reports confirmed that a high dismissal rate came because the complaints stemmed from a losing party’s anger over a ruling, but details of individual cases are not made public. The 1980 statute contemplates reprimands for misconduct unrelated to decision-making, such as abusive behavior or sexual harassment. Asked whether an inspector general might be given authority to review public complaints under the Sensenbrenner plan, Lungren said it is a possibility. “That would be an implicit linking of judicial decision-making to the budget,” Geyh said. “That has never been made before. If an inspector general is told to look at the budget and to look at complaints, the potential for abuse is obvious.” Sensenbrenner specifically pointed out the need to keep congressional obligations of financial oversight separate from political frustration with judges. “It is one thing for Congress to monitor how the courts are set up; it is quite another thing to tell them how they must author opinions,” he said at Stanford. In response to Sensenbrenner’s concerns about judicial self-regulation, Chief Justice William H. Rehnquist appointed a study committee last year to examine how the 1980 statute was implemented, and put Justice Stephen Breyer in charge. Breyer, who served as counsel to the Senate Judiciary Committee when the statute was enacted, is expected to issue a final report on the committee’s findings sometime this summer. Schroeder of the 9th Circuit said of Sensenbrenner’s proposal, “None of us know what may be seriously considered. We hope the judiciary is consulted. I had not heard anything about [an inspector general] until I saw the speech.” A 1996 proposal to create an inspector general for the judiciary was opposed in the judicial branch “because it poses a serious threat to the independence of judicial decision-making and has serious implications for the separation of powers,” a statement issued at time said, according to Administrative Office of the U.S. Courts spokeswoman Karen Redmond. Geyh said that at this point it is hard to tell whether Sensenbrenner’s proposal is saber rattling or a serious alternative to the more caustic calls by others for impeaching judges and slashing budgets.

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