Judge Anthony Scirica of the US Court of Appeals for the Third Circuit considered potential threats to judicial independence and the state of the judiciary’s current self-governing accountability system when he delivered the 46th James Madison Lecture on October 22.

Dean Trevor Morrison, Judge Anthony Scirica, and Professor Norman Dorsen“Judicial independence is at the core of the rule of law,” said Scirica, a former chief circuit judge who also served in the Pennsylvania state legislature. He spoke of the traditional balance of power between the judicial and legislative branches, and described two recent legislative proposals that would, he said, threaten both the judiciary’s “decisional independence"—the ability of judges to render decisions without the interference of political pressures or their own ideologies—and “institutional independence"—the structural autonomy of the judicial branch as coequal to the other two branches.

Historically, he explained, the judiciary has conducted itself with the guidance of both formal structure and informal norms and customs. Congress, which has the authority to create and regulate the lower federal courts, has granted self-regulatory power to the judiciary while retaining an oversight role, Scirica explained. “This accommodation has preserved accountability in a way that insulates the judges from political pressures, but which also depends on a partnership between the two branches in cultivating judicial self-governance.”

From the late 19th through the mid-20th centuries, Congress acted in several ways to improve oversight over the judiciary, first by establishing courts of appeals and ending the practice of Supreme Court justices’ circuit riding, and later by establishing the Judicial Conference of the United States to formalize a self-policing system for matters of judicial misconduct and disability; circuit judicial councils and an administrative office for the courts were also created.

“It is notable that while Congress took these actions responding to concerns of judicial accountability,” said Scirica, “each action gave the judiciary the opportunity to strengthen its internal oversight, obviating the need for increased Congressional oversight.”

But recent legislative proposals, he asserted, went well beyond previous Congressional acts. The current succession of potential bills arose initially out of concerns about all-expense-paid trips some judges took to privately funded educational seminars, leading to the House Judiciary Committee’s announcing its intention to investigate the effectiveness of judicial self-regulation. In response, then-Chief Justice William Rehnquist appointed a committee, chaired by Justice Stephen Breyer, that recommended mandatory rules of procedure across all circuits as well as a supervisory role for the committee over all misconduct and disability matters.

Scirica highlighted two proposed bills “that could alter the balance of judicial accountability, challenging the federal judiciary’s decisional and institutional independence and our traditional notions of separation of powers.” The first, which has been put forth in every Congressional term since 2006, would create an inspector general for the judiciary. The role would involve investigating not only waste, fraud, and abuse in administrative functions, but also questions of judicial conduct and disability. The Senate version of the bill would include the Supreme Court along with the lower federal courts.

The inspector general bills raise serious constitutional concerns, Scirica argued. “When a political branch of government can direct or influence these investigations, judges may no longer be insulated from encroachment, and the judiciary’s ability to check the power exercised by the other branches of government may be undermined.”

He also described a proposal to regulate the recusal process of Supreme Court justices. “Some may question the propriety of leaving the decision whether to recuse with the judge whose impartiality is being questioned,” he said, “but judges understand and respect the enormity and importance of recusal decisions.”

In the end, Scirica suggested that the purported benefits of both bills did not outweigh their potentially detrimental effects, and that the legislative and judicial branches did not have to be at odds.

“Members of Congress and members of the judiciary share a common bond as trustees of the long-term interests of an essential institution,” he said. “For a very long time now, the coequal branches of the federal government have respected each branch’s decisional independence. This history is deeply rooted in the American political and constitutional tradition. Congress has honored this legacy by guarding judicial independence and self-governance. These longstanding principles of comity confirm that there is no need to create constitutional tension.”

Watch the full video of the Madison Lecture (1 hr, 10 min):

Posted November 5, 2014