When Justice Kagan addresses the Ninth Circuit Judicial Conference, after she has dispensed with all the platitudes and platitudes, her main goal is to give the left a list of things to do. She doesn’t cry in her office. She punches walls. This year, Justice Kagan has been nonchalant: idea It’s taking shape: Justice John Roberts may appoint a panel of “junior judges” to review allegations of misconduct.
First, she threw Justice Thomas under an RV and hoisted Justice Alito up a flagpole. Less than a year after the Supreme Court adopted an ethics code (which was part of Kagan’s earlier wish list), Kagan is already saying the rules aren’t enough. They have to be tougher!
I will repeat some points I have made many times before. The Code of Ethics is not a set of clear rules; it merely provides judges with guidelines on how to proceed. All federal judges, even Supreme Court justices, can seek informal advice from their colleagues and from judges on other courts. 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. These agencies can issue private and public reprimands. In extreme cases, they can refer judges for impeachment. At that point, it is up to Congress to act. But the ultimate death sentence is to bar a judge from being on the bench.
Take the Federal Circuit for example. The court’s respected judges have barred Judge Pauline Newman from hearing any cases until she has a medical examination by a doctor of their choice. Judge Newman put up a valiant legal fight, lost in district court, and now has her sights set on the DC Circuit. Moreover, the Federal Circuit recently excommunicated her for another year. Judge Newman is 97 years old. Chief Justice Kimberly Moore and her colleagues must be waiting for Judge Newman to die, as she was secretly impeached and other federal judges have already completed the impeachment process. there is nothing About that. They’re too busy punishing Texas litigants for filing lawsuits when the venue statute allows them to do so. (There’s movement in the Rules Committee. Stay tuned.) Anyway, I digress.
These are things that lower court judges can do to enforce ethics. Does Judge Kagan really want to give Justice Moore or other judges the power to suspend Supreme Court cases? Or allow lower review panels to force judges to recuse themselves from certain cases? Are we going to see a wave of litigation before these panels right after confirmation?
The Wall Street Journal Editorial Board Salary increase Other questions:
Could her committee issue subpoenas to investigate allegations? What sanctions would it impose on judges who hold life tenure? Wouldn’t setting up such a system encourage frivolous complaints filed for partisan PR purposes or to cast the process as punishment?
The existence of this process would result in thousands of pointless complaints. 1,000 “systematic” complaints So many lawsuits have been filed against Judge Eileen Cannon that Chief Justice Pryor ordered her clerk’s office to stop taking them. And that’s just one district court judge. Imagine what would happen with Justices Thomas and Alito. There’s surely at least one justice somewhere who thinks one of these complaints has merit. Who will be the first justice to get the treatment that Justice Pauline Newman got? Did Justice Kagan really consider this proposal a policy issue?
I haven’t even mentioned the issue of separation of powers, i.e. lower judges judging the most powerful. This is completely unacceptable.
Ultimately, these calls for “judicial reform” address problems that barely exist and mandate solutions that will do great harm to the judiciary. Justice Jim Ho expressed the issue well in his new judgment: National Review essay:
The double standard is not accidental. It is intentional. It is a strategy that creates an unfair incentive structure for judges: if you rule as your critics dictate, you won’t be criticized. You’ll be praised. But if you don’t, you’ll be kicked out.
That’s why critics don’t seem to suffer from double standards. For them, this isn’t a debate, it’s a war. They’re not asking for neutrality, they’re asking for conformity. If you don’t conform, they’ll call you corrupt, unethical, racist, sexist, homophobic. They’ll say you’re just a troll, or auditioning. They’ll do anything to get you to give in. And even if you still don’t conform, they’ll attack you anyway, because others will get the message and conform.
Critics repeatedly say they want to add more to the Supreme Court, but if they could pressure the Court to do what they want, there would be no need to add more to the Court.
I don’t think Justice Kagan sees things this way, but her proposal gives impetus to those who do.
I am disappointed that Justice Kagan has begun to go down this path. This issue is unavoidable, given that President Biden will soon be announcing his own Supreme Court reforms. If the filibuster were abolished, as Senator Elizabeth Warren has proposed, promised– I believe the Supreme Court will be placed under this regime. My other predictions from four years ago may also come true.
