When Judge Kagan addresses the 9th Circuit Judicial Conference, after shedding all the formalities and platitudes, her main purpose is to give the left a to-do list. She doesn’t sob in her office. She punches the wall. This year, Kagan has been inadvertently idea was formed. Judge John Roberts could appoint a panel of “judges lower down the food chain” to review allegations of misconduct.
As a matter of threshold, she threw Justice Thomas under his RV and lifted Justice Alito up his flagpole. Less than a year after the court adopted a code of ethics (which was part of Kagan’s previous wish list), Kagan is already saying that rules alone are not enough. They have to have teeth!
Let me repeat a few points I have made countless times. The Code of Ethics is not a set of rules. It merely provides guidance to judges on how to proceed. All federal judges, even Supreme Court justices, can ask their colleagues or judges on other courts for informal advice. It is not binding, but judges tend to do what others have done. Judicial ethics agencies have very limited tools to enforce the Code of Ethics. They can issue private and public censures. In extreme cases, they can impeach a judge. At that point, Congress must act. But the ultimate death sentence is to prevent a judge from ever being a judge.
Take the Federal Circuit. Its respected judges have refused to hear any cases until Judge Pauline Newman undergoes a medical examination by a physician of her choice. Newman has filed a courageous legal challenge, but lost in district court, and her only hope now lies in the D.C. Circuit. Plus, the Federal Circuit recently excommunicated her for another year. Newman is 97 years young. Chief Judge Kimberly Moore and her colleagues are probably waiting for Judge Newman to die. This is a secret impeachment, and other federal judges are naught About that. They are too busy punishing litigants in Texas to file a lawsuit under the venue rules. (There is action in the Rules Committee. Stay tuned.) Anyway, I digress.
Here’s what lower court judges can do to enforce the ethics code: Does Justice Kagan actually want to give Justice Moore and other judges the power to block Supreme Court justices from hearing cases? Or will some lower panelists be allowed to force judges to recuse themselves from certain cases? Will cases now be heard before these panels immediately after they are certified?
The Wall Street Journal Editorial Board bring up Other questions:
Could her panel issue subpoenas to investigate allegations? How would it discipline judges who hold office for life? Wouldn’t such a system encourage frivolous complaints that are either partisan propaganda or aimed at punishing the process?
If this process existed, there would be thousands and thousands of frivolous complaints. Consider the following: Thousands of “organized” complaints There are so many lawsuits filed against Judge Aileen Cannon that Chief Judge Pryor has ordered the clerk’s office to stop filing! And that’s just one district judge. Imagine what happens to Justices Thomas and Alito. At least one judge somewhere will find one of these complaints to be valid. Who will be the first judge to receive Pauline Newman treatment? Did Kagan consider this proposal a policy issue?
I didn’t even address the issue of separation of powers. Lower-level judges are judging top officials. That’s not going to work.
Ultimately, all these calls for “judicial reform” address a problem that barely exists and call for solutions that could do considerable damage to the judiciary. Judge Jim Ho has his new National Review essay:
The double standard is not accidental. It is intentional. It is a strategy to create a distorted incentive structure for judges. If you govern as the critics dictate, you will not be criticized. You will be welcomed. If you do not, you will be ostracized.
So critics don’t seem to worry about double standards. Because to them, this isn’t a debate, it’s a war. Critics don’t want neutrality. They want conformity. If you don’t conform, they’ll call you corrupt, unethical, racist, sexist, homophobic. They’ll say you’re just trolling or auditioning. They’ll say whatever they need to get you to bend the knee. And if you still don’t conform, they’ll attack you anyway, because other people will get the message and conform.
Critics have repeatedly said they want to pack the courts, but they don’t need to pack the courts if they can just pressure the courts to do what they want.
I don’t think Justice Kagan sees things this way, but her proposal provides some basis for those who do.
I regret that Justice Kagan has started down this path. Given that President Biden is expected to announce his own court reforms soon, this issue is on the wall. Senator Elizabeth Warren I promised– I think the courts will be put in this system. Another prediction from four years ago may yet come true.
