Marty Aussenberg is a columnist for the weekly Memphis Flyer, in which an earlier version of this piece appeared. He is a former SEC enforcement official (back when its reputation was still intact), and is currently an attorney in Memphis, Tennessee.
Something very rare occurred in Washington, D.C. this past week, and it passed substantially under the radar because of the media‛s obsession du jour which, this time, was leaks by geeks. No, I don‛t mean Republicans decided to stop screwing the American public—hey, I said very rare, not inconceivable.
What I mean is that a federal official, one of very few (other than presidents) who can be constitutionally removed from office only by impeachment, was, in fact, removed from office by impeachment. This was the first time that‛s happened in over twenty years, and in the entire history of the republic, going back to 1789, only the eighth, and was a very significant milestone for our constitutional system proving, as sunshine patriots love to say, that our system works. The problem they overlook in saying that is that, in this respect, our system doesn‛t work nearly often enough.
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The official who was removed was a federal judge, G. Thomas Porteous, Jr., who, until last week, was a judge in the Eastern District of Louisiana. He was found guilty of a laundry list of offenses. Federal district judges (not magistrate, bankruptcy or administrative law judges), you see, are given lifetime tenure, or at least for as long as they exhibit “good behavior,” and, like presidents, can only be removed from office by the impeachment process, meaning presentment of articles of impeachment by the House of Representatives, and trial on those charges by the U.S. Senate, for “high crimes and misdemeanors.” You remember that phrase, don‛t you? In a president‛s case it means getting a BJ in the Oval Office, while for everyone else it apparently means the equivalent of murdering Mother Teresa in front of thirty bishops.
To put the rarity of this event even further in context, there are 2.6 million federal civilian employees, including district judges, in the federal government (and that doesn‛t count an additional 3 million military employees), and of that huge number, the only 875 who are given life tenure are—you guessed it—federal judges, from the district/trial level all the way up to the Supreme Court. That means that of the thousands of federal judges who have served in that capacity in the last 220 years (one web site reckons the number as being in the 3,000 range, though I think it‛s closer to twice that, given the average tenure of a federal judge), only eight have been removed from that office because of their conduct or behavior. In addition to those eight, there have been 13 who have been impeached by the House, but weren‛t removed by the Senate.
An impeachment rate of .04%, and a removal rate of .02%, is an amazing statistic, if you think about it, especially considering the high standards federal judges are expected to maintain, and the many temptations to stray from the straight and narrow their powerful position offers them (temptations the now Mr. Porteous obviously couldn‛t resist). It beats the law of averages by a long shot. Popes would probably have a higher impeachment rate, if they could be impeached. Have so few federal judges been impeached and/or removed because, as a group, they have maintained such a high standard of integrity, or is it because the bar for their removal has been set so impossibly high?
The founding fathers made federal judges lifetime appointees supposedly to remove them from the influences of politics and public pressure, and yet we‛ve learned that being appointed by the leader of one of the two major political parties and confirmed in a frequently brutal political process (did I hear someone say “Borked?”) by the Senate, and having your salary (which, unlike other federal employees, is constitutionally prohibited from being reduced) be set and adjusted by that same body, doesn‛t exactly assure immunity to political influence. If nothing else did so, the Supreme Court‛s decision in Bush v. Gore taught us that. Indeed, studies of the federal judiciary have concluded that the party affiliation of the president who appoints them is often predictive of how federal judges will decide particular cases, something most followers of decisions by the federal judiciary in controversial cases have always known. Justices Roberts, Scalia, Thomas and Alito have proven that too, haven‛t they?
In general, judges at the trial level, both state and federal (state more so than federal, given the more common kinds of cases the state court system handles), have more sheer, raw power over our day-to-day lives than virtually any other public official. A neophyte police officer may be the most powerful official of all, since s/he can, even if only temporarily, impair your freedom of movement, and has the ability to kill people, legally. But, s/he can‛t cause all of your money or property to be seized, as a judge can, sentence you to be removed from society for vast lengths of time, or even have you snuffed. What goes along with power in our society, though, or at least is supposed to, is accountability. There are, of course, notable exceptions (George Bush and Dick Cheney, for authorizing torture, immediately come to mind), and it is generally recognized that the ultimate accountability for screwing up at one‛s place of work is the loss of their job. For many governmental officials this happens at the ballot box, and for others in the ordinary course of their employment. But not so for federal judges.
Impeachment, as it turns out, is not the only source of accountability for these judges, at least not in principle. There is, in fact, a disciplinary protocol for them that is short of that seldom-seen procedure. Under a fairly recent federal statute, complaints may be made to the chief judge of the federal circuit in which the allegedly offending judge sits. Ask John Q. Public, though, what a federal circuit is and your answer is more likely to be an electrical device than a judicial subdivision. The rest of the process is somewhat obscure and convoluted. The rules governing the procedure to file a complaint–good luck finding them–can vary from circuit to circuit, and many would be difficult for the average aggrieved layman to follow even if s/he could find them. They involve such byzantine-sounding administrative bodies as judicial councils, special committees, and something called the Judicial Conference.
Arcane as this federal judicial disciplinary process is, three features of it come shining through: first, unlike state courts and most other professions or occupations, federal judges are self-policing (except, of course, for impeachment); second, the disciplinary process, from start to finish, is hidden from public view; and third, precious few of the complaints that are filed ever result in any discipline, and if they do, thanks to the secrecy of the proceedings, almost no one ever hears about it. More than one legal commentator has bemoaned the inadequacy of judicial discipline at the federal level.
Don‛t get me wrong: I have the utmost respect for the federal judiciary, and have had the privilege of practicing before many distinguished federal jurists all over the country, including one of the most famous in his day, “Maximum John” Sirica, who took on President Nixon in a well-known episode of the Watergate drama. I‛m grateful for the federal judicial system. It is one of the most comprehensive, well-developed, readily-available sources of jurisprudence we have in this country, and believe me, as someone who‛s spent many an hour in law libraries leafing through dusty tomes trying to find good, albeit occasionally ancient, state law, I appreciate that aspect of the federal system. Its judges, appointed and confirmed as they are by a rigorous, even if sometimes too political, process (but one that, still and all, is far preferable to the election of judges by a more-often-than-not totally uninformed electorate), represent some of the finest examples of their discipline. They are not, however, infallible.
The story is told about the figure in a black robe, carrying a gavel, who breaks into the front of an interminable line at the pearly gates. One standee in the line asks another, “who was that guy,” to which the reply is, “oh, that‛s God; he likes to pretend he‛s a federal judge once in awhile.” Ask any lawyer who has practiced regularly in federal court, and they‛ll tell you they‛ve seen federal judges behave badly, just as judges in any venue are capable of doing, so it is a matter of concern to many that mere mortals who are given so much power, but particularly for so long, are held to so little in the way of accountability.
The wisdom of lifetime appointments for federal judges has come under increasing attack in our politically divisive environment, with diatribes, both from the right and the left, about “judicial activism,” “legislating from the bench,” and the like, which is frequently the reaction from whichever side of the political spectrum takes more umbrage at a ruling. I don‛t favor tinkering with the Constitution, for any reason, so I wouldn‛t want to see lifetime tenure eliminated. I wouldn‛t mind it, though, if in the next 220 years impeachment of federal judges wasn‛t quite as rare as it‛s been in the last 220.
