When Judge Kagan addressed the Ninth Circuit Judicial Conference, her main goal, after cutting out all the pleasantries and platitudes, was to give the left a to-do list. She doesn’t cry in the office. She punched through the wall. This year, Kagan casually floated an idea that was already taking shape: Judge John Roberts could appoint a panel of “judges further down the food chain” to review allegations of misconduct.
As a matter of threshold, she threw Justice Thomas under his RV and hoisted Justice Alito to his flagpole. Less than a year after the Supreme Court adopted ethics rules, which were part of an early wish list for Kagan, Kagan is already saying the rules are not enough. Must have teeth!
I will repeat some points I have made countless times. Ethics are not clear-cut rules. They simply provide guidance to the judge on how to proceed. All federal judges, even justices, can seek informal advice from their colleagues or judges from other courts. Although not binding, judges tend to do what others have already done. Judicial ethics agencies have very limited tools for enforcing ethics. These agencies can issue private and public reprimands. In extreme cases, they could ask a judge for impeachment. At that point, it will be up to Congress to act. But ultimately the death penalty is what prevents a judge from being a judge.
Take, for example, the Federal Circuit Court. The court’s well-respected judges have barred Judge Pauline Newman from hearing any cases until she undergoes a medical examination by a doctor of their choice. Newman mounted a valiant legal challenge that failed in district court, and her hopes now rest with the D.C. Circuit Court. Additionally, the Federal Circuit Court recently excommunicated her for another year. Newman was 97 years old. Chief Judge Kimberly Moore and her colleagues may be awaiting the death of Judge Newman. This is a secret impeachment, something other federal judges have already done there is nothing about it. They are busy punishing Texas litigants for filing lawsuits when the venue statute allows them. (The Rules Committee is taking action – stay tuned.) Anyway, I digress.
These are steps lower court judges can take to enforce ethics rules. Does Judge Kagan really want to empower Judge Moore and others to suspend Supreme Court justices from hearing cases? Or allow some lower juries to force judges to recuse themselves from specific cases? Will these panels conduct a full round of proceedings immediately after certification is granted?
The Wall Street Journal editorial board also asked some other questions:
Can her group issue subpoenas to investigate the allegations? How will it sanction judges with tenure? Would setting up such a system encourage frivolous complaints for partisan PR purposes, or make the process inherently punitive?
Once this process exists, there will be thousands of meaningless complaints. Look at the thousands of “orchestrated” complaints filed against Judge Erin Cannon – so many that Chief Judge Pryor ordered the Clerk’s Office to stop accepting them! And that’s just one district court judge. Imagine what would have happened to Judges Thomas and Alito. There is at least one judge somewhere who thinks one of these complaints has merit. Who will be the first justice to get the Pauline Newman treatment? Did Kagan really consider this suggestion as a policy issue?
I haven’t even addressed the issue of separation of powers: lower judges putting top officials on trial. It’s impossible to fly.
Ultimately, all these calls for “judicial reform” are taking a virtually non-existent problem and mandating solutions that will do significant damage to the judiciary. Judge Jim Ho lays out this issue well in his new book national review prose:
Double standards are no accident. They do it on purpose. It’s a tactic that creates a perverse incentive structure for judges: If you rule by your critics’ dictates, you won’t be criticized. You’ll be in for a feast. But if you don’t, you will be ostracized.
That’s why the double standard doesn’t seem to bother critics. Because, to critics, this is not a debate, but a war. Critics don’t want to be neutral. They want to be compliant. If you disobey, they will call you corrupt, immoral, racist, sexist, homophobic. They’ll say you’re just doing a prank, or an audition. No matter what, you have to bend your knees. Even if you still refuse to obey, they will still attack you because others will get the information and obey.
Critics have repeatedly said they want to pack the court. But if they can pressure the courts to do what they want, then there’s no need for them to pack the courts.
I don’t think that’s how Judge Kagan sees things, but her advice provides ammunition for those who do.
I regret that Judge Kagan went down this path. The question hangs in the balance now that President Biden is about to announce his own court reforms. Once the filibuster is abolished—as Sen. Elizabeth Warren has promised to do—I suspect the Supreme Court will be left under such a system. Other predictions I made four years ago may yet come true.
