How Judicial Misbehavior Skates in America

We have a serious problem within the federal Judiciary in how it protects itself from malfeasance issues when people file judicial misconduct complaints against judges.

The Judicial Conduct and Disability Act allows "[a]ny person alleging that a judge has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts" to file a complaint against the judge.  And then when a complaint is filed, everything simply goes out the window in terms of transparency and accountability — and yes, even the ultimate goal of justice, due to built-in rules designed to muzzle the public and prevent an actual meaningful proceeding.  

First, there is a law dictating that with a few exceptions, all papers, documents, and records of proceedings relating to judicial misconduct complaints shall be confidential and shall not be disclosed by any person in any proceeding.  In other words, when a person has information about judicial corruption done by a federal judge, once that person files a complaint against that judge, that person cannot make any public statements about the judicial malfeasance.  This law seems to be in substantial conflict with the First Amendment to the United States Constitution, which expressly prevents the government from making laws that abridge the freedom of speech and the freedom of the press.  

And if suppression of a person's freedom of speech weren't enough, there is a law that disallows judicial review of anything stated in an order dismissing a judicial misconduct complaint once a chief judge or judicial council does its thing in protecting judicial corruption.  In other words, the complaint is terminated, and the person has no right to further review.  This also seems to be in substantial conflict with the First Amendment, which prevents the government from making laws that abridge a person's right to petition the government for redress of grievances.  It should be noted that the First Amendment is one of the ten amendments that constitute the Bill of Rights.

Furthermore, the law's disallowance of judicial review beyond what a chief judge or judicial council decides is in blatant disregard of the Supreme Court's decision in Marbury v. Madison, 5 U.S. (1 Cranch) 137, where the Supreme Court stated, "The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury" (at 163).  Further, "[i]t is emphatically the province and duty of the Judicial Department to say what the law is" (at 177).

Whoever is involved in creating these unconstitutional laws needs to learn that the Marbury v. Madison decision was a landmark U.S. Supreme Court case that established the principle of judicial review in the United States, meaning that American courts have the power to strike down laws and statutes that they find to violate the Constitution.  The Supreme Court made clear that "a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument" (at 180).  Chief Justice John Marshall reasoned that the Constitution places limits on the American government's powers, and those limits would be meaningless unless they were subject to judicial review and enforcement.  Justice Marshall held that in the event of a conflict between the Constitution and statutory laws passed by Congress, the constitutional law must be supreme.

It is bad public policy for federal lawmakers to be so influenced as to enact unconstitutional laws to protect the bad behavior of federal judges by muzzling people, suppressing their free speech rights to speak about secret processes that are calculated to insulate misbehaving federal judges from public scrutiny.  And it is bad public policy to impermissibly prevent injured people from seeking redress of their grievances as to infected decisions by chief judges and judicial councils who are protecting corrupt activities by federal judges by way of unconstitutional secret processes.

Chief Justice Marshall made the point that the Legislature imposes judges to take an oath to support the Constitution and that this oath certainly applies "in an especial manner, to their conduct in their official character," so it stands to reason that federal judges have a responsibility to behave in an honest and upright manner in their "official character."  When they don't, they should be subject to public scrutiny and not secretly protected from it.  It also stands to reason that misbehaving federal judges should not be afforded protection from judicial review of their infected actions against people and that people indeed have a fundamental right to seek redress of their grievances against a diseased system designed to protect judicial corruption.   

Public policy is served best by allowing people to exercise their free speech rights, allowing public denouncement of a poisoned process of protectionism of judicial corruption, not by an unconstitutional law that suppresses that right.  Public policy is served best by allowing people to exercise their fundamental right to seek redress of their grievances against infected decisions by chief judges and judicial councils that wrongfully protect misbehaving judges, not by an unconstitutional law that prevents people from seeking a judicial review of those infected decisions given by brethren of misbehaving judges.  There is nothing in the Constitution that affords unlawful secrecy protections to the persons wearing the black robes who violate their oaths of office.  "The greater the power, the more dangerous the abuse" (Edmund Burke).

Brian Vukadinovich is the former executive director of the Posner Center of Justice for Pro Se's and author of the book Motion for Justice: I Rest My Case.

Image via Max Pixel.

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