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Why Don't Complaints Against Federal Judges Become Public?

In a recent report, there seems to be a tone of shock that the complaints lodged against federal judges rarely see the light of day. As an attorney, you not only know better than to be shocked, you've probably considered filing complaints yourself for all sorts of reasons. Judges, right?

However, with former Justice Kozinski's recent resignation amid damning allegations, the Chief Justice of the Supreme Court decided to investigate the whole complaint process. Interestingly, this seemed to key in the media to the fact that there's a problem with the complaint process, partly due to the fact that judges are policing themselves with little oversight, and practically no real public accountability.

The Numbers Raise Serious Questions

The rarity of judges being sanctioned for misconduct, or as a result of employee complaints, isn't really news. As the ABA Journal summarized from CNN's report: "Since 2006, fewer than 10 cases a year were referred to a special committee for a closer investigation, and in six of the past 11 years no judges were sanctioned for misconduct." 

One of the big barriers to sanctioning judges is retirement. When a judge retires, like Kozinski did, amid allegations and an investigation, the judiciary's investigation stops. Retirement or resignation stops the risks of sanction or censure. And unfortunately for any victims of judicial misconduct, the attorneys willing to take those cases on are as picky as it gets.

Public Confidential

Times have changed considerably since the decision was made to conduct judicial conduct investigations behind closed doors. But still, one of the cornerstones of our entire government is the public's faith in the system. The judiciary decided, long ago, that when it came to the complaints lodged against it and its members by the public, it would be best to exercise discretion and confidentiality to preserve the court's integrity.

As the courts explain in the FAQ on judicial complaints, even published decision often omit the names of the parties, and if you appeal their decision, your only recourse is through the judicial council. However, given the option between secrecy and public accountability, it really does seem like the later route, though more difficult and strewn with obstacles, would likely result in a stronger public faith in the system.

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