The Need for the Passage of S. 2553 and Greater Congressional Oversight of the Federal Judiciary
An Open Letter to Senator Dick Durbin
The following open letter is a copy of the letter I wrote to Senator Dick Durbin on March 8, 2022 wherein I point out the need for the passage of S. 2553 and greater congressional oversight of the federal judiciary.
I still await a response.
March 8, 2022
The Honorable Dick Durbin
Chair
Committee on the Judiciary
United States Senate
Washington, DC 20510
Re: Judiciary Accountability Act, S. 2553
Dear Mr. Chairman:
I write concerning the Judiciary Accountability Act, S. 2553, introduced on July 29, 2021.
In its letter to you, dated August 25, 2021, the Judicial Conference of the United States writes, “….the bill interferes with the internal governance of the Third Branch; creates structures that compete with existing governing bodies and authorities within the Judiciary; and imposes intrusive requirements on Judicial Conference procedures. For these reasons, the Judicial Conference of the United States opposes the bill.” I strongly disagree with the Judicial Conference of the United States for the following reasons.
It’s impossible to hold federal judges accountable. An investigation of a miscreant federal judge, by the Chief Judge of a United States court of appeals (which is extremely rare and laughable if it does occur) or as a result of an impeachment proceeding initiated by the U.S. House of Representative, is farcical.
“I retire,” is all a miscreant federal judge needs to say in order to terminate the investigation and evade punishment under 28 U.S.C. § 351-364 or impeachment by the Congress. Moreover, if he or she retires at age 65 or later, a pension for life is guaranteed.
U.S. Supreme Court justices, court of appeals judges, and district court judges, with life tenure, are accountable to nobody and they know it. Federal judges frequently make a mockery of our justice system, ignore the rule of law, and thumb their noses at the Code of Conduct for United States Judges because they know that the greatest punishment they could ever receive would be an early retirement with a guaranteed pension for life.
The Judiciary Accountability Act, S. 2553, in pertinent part, provides:
SEC. 8. ACCOUNTABILITY FOR JUDICIAL MISCONDUCT.
(e) EFFECT OF VACANCY OF OFFICE. - The resignation, retirement from office under chapter 17, or death of a judge who is the subject of a complaint under section 351 shall not be grounds for -
(1) the dismissal of the complaint under subsection (b)(1); or
(2) the conclusion that the complaint is no longer necessary under subsection (b)(2); and
(2) in section 353, by adding at the end the following:
(d) EFFECT OF VACANCY OF OFFICE. - The special committee shall complete its investigation and file a report under subsection (c) without regard for the resignation, retirement from office under chapter 17, or death of the judge whose conduct is the subject of the complaint.”
The Judiciary Accountability Act, S. 2553 is a step in the right direction. It would prohibit the ability of a miscreant federal judge to merely say “I retire” in order to terminate the investigation and evade punishment under 28 U.S.C. § 351-364. Regrettably, the sanctions currently available are laughable: (a) censuring or reprimanding the judge, either by private communication or by public announcement; (b) ordering that no new cases be assigned to the judge for a limited, fixed period; (c) in the case of a district judge, requesting the judge to retire voluntarily; and (d) recommending corrective action.
Some commentators have suggested giving the judicial councils the power to remove a miscreant federal judge’s pension. I strongly disagree. As explained below, it is ludicrous to presume that “judges judging judges” is a viable solution.
The attached complaint of judicial misconduct which I filed against Judge Carl J. Barbier of the United States District Court Eastern District of Louisiana on August 23, 2021 provides an excellent argument for the passage of S. 2553 and greater congressional oversight of the federal judiciary. In this case, although the evidence of Judge Barbier’s misconduct is clear and convincing, the Chief United States Circuit Judge dismissed the complaint based on nothing more than empty air. She did not review the court documents, exhibits, or interview witnesses. If the Chief Judge had reviewed the exhibits, she would have discovered Judge Barbier committed what appears to be a politically-motivated fraud on the process of allocating common benefit fees in MDL No. 2179 by awarding $18,290,494.18 in common benefit fees to Mikal Watts, a known “mega donor” to the Democratic Party and a former member of the PSC, who had falsely claimed to represent 40,000 oil spill claimants.
Under our Constitution, the American people must look to the Congress to protect them from Federal judges who are unfit to hold high office because of serious misconduct that has violated the public trust. The Congress must focus on ensuring public confidence in the integrity and impartiality of the judiciary by supporting an independent federal judiciary which is accountable and transparent.
I look forward to communicating further with you.
Very truly yours,
Brian J. Donovan
Encls: Judicial Misconduct Complaint No. 05-22-90003 (4 attachments)
cc: Honorable Chuck Grassley
Honorable Sheldon Whitehouse
Honorable Richard Blumenthal
Honorable Mazie K. Hirono
Honorable Patty Murray