Abridging the Right to Petition

Critiques of the Judiciary

"There is a need to have genuine complaints taken seriously. Our job is to look into how that has been working."

-- Justice Stephen G. Breyer

“Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
First Amendment, U.S. Constitution

HOWEVER, THAT DOES NOT STOP CONGRESSMEN OR OTHER GOVERNMENT AGENTS FROM EXERCISING THEIR INFLUENCE TO DENY THOSE FREEDOMS TO CRITICS.

On or about September 1, 2004, Tulanelink's petition in support of legislation to amend the recusal law was abruptly taken offline without warning or explanation. It had been hosted for more than a year by www.petitionpetition.com, and attempts to contact the hosting service and the domain's administrator, Kevin Wiatrowski, by email and telephone were unsuccessful. The reason behind the petition's removal is uncertain. However, the proximity of this action to a communication containing the petition, submitted to members of a judicial commission recently appointed to investigate how complaints against judges are handled, raises a suspicion about what may have lead to its removal.

On June 11, 2004, David G. Savage of the Los Angeles Times reported that, in response to congressional misgivings about the way judges dealt with complaints against their colleagues, Chief Justice William H. Rehnquist, who heads the federal judicial system, appointed a committee of judges to investigate the matter. Justice Stephen G. Breyer was named to lead the group which included Judges J. Harvie Wilkinson III from the U.S. 4th Circuit Court of Appeals in Richmond, VA, Pasco Bowman from the 8th Circuit Court in St. Louis, Sarah Evans Barker, a district judge from Indiana, D. Brock Hornby, a district judge from Maine, and Sally M. Rider, administrative assistant to Rhenquist [1].
"There is a need to have genuine complaints taken seriously," Breyer said. "Our job is to look into how that has been working." [1-3]

On July 8, 2004, the following letter was submitted to Justice Breyer and the other five judges of the Rehnquist Panel. Several days later, a similar communication was sent to members of the House and Senate judiciary committees of the 108th Congress. About six weeks afterward, the online petition was quietly removed by the hosting service.

Carl Bernofsky, Ph.D.
6478 General Diaz Street
New Orleans, LA 70124

July 8, 2004

The Honorable Stephen G. Breyer
U.S. Supreme Court
One First Street, N.E.
Washington, DC 20543

Re: Judicial Conduct Review

Dear Justice Breyer :

The formation of the Panel to review the issue of judicial conduct is a welcome response
to the growing number of grass roots organizations expressing dissatisfaction with judicial
activism, abuse of authority, and the lack of meaningful judicial accountability. The judiciary
and the legislature can no longer afford to ignore these concerns and must take steps to address
them.

The attached proposal is a small but important step in the direction of reform. It deals
with the issue of judicial fairness, is essentially non-partisan, and has the tentative support of
several congressmen with whom I have corresponded.

The proposal amends the existing recusal statute to make it conform to a canon of the
Judicial Conference (attached) that guides but does not compel the conduct of judges. The
amendment would prevent judges who are faculty members at academic institutions from
adjudicating cases in which those institutions are a party. The canon that forbids this is widely
abused and therefore should be elevated to the level of statute whereby it would have the force of
law. A petition that illustrates the necessity for this amendment and bears the support of more
than 100 signatures is attached. The petition can also be seen at
http://www.petitionpetition.com/cgi/petition.cgi?id=4639.

I strongly urge you to support this proposal. It will codify the intent of the Judicial
Conference and help achieve the goal of equal justice under the law that the public expects.

Yours truly,

s/ Carl Bernofsky

Carl Bernofsky
Tel: (504) 486-4639

Top

Endnotes

David G. Savage, "Rehnquist Panel Embarks on Judicial Conduct Review; The committee will gather data on complaints and how they're handled, and make recommendations," Los Angeles Times, June 11, 2004, p. A-26. See also: Douglas T. Kendall, "When Judges Behave Badly" [PDF], Legal Times, August 9, 2004.

The special study committee chaired by Justice Stephen Breyer was created in May, 2004 and authorized to continue through 2005. See: "2004 Year-End Report on the Federal Judiciary," http://www.supremecourtus.gov/publicinfo/year-end/2004year-endreport.pdf, pp. 1 & 16, accessed 06/30/06. There is no further mention of this committee in the "2005 Year-End Report on the Federal Judiciary," http://www.supremecourtus.gov/publicinfo/year-end/2005year-endreport.pdf, accessed 06/30/06.

According to Law Professor Arthur D. Hellman (University of Pittsburg School of Law), who testified June 29, 2006 before a subcommittee of the House Committee on the Judicary, "...the Breyer Committee has not issued any reports. It has not held any public hearings, nor has it extended any formal invitations for public comment." See: http://judiciary.house.gov/media/pdfs/hellman062906.pdf, accessed 06/30/06.

On April 27, 2006, House Judiciary Committee Chairman F. James Sensenbrenner, Jr. (R-Wis.) and Senator Charles Grassley (R-Iowa), a Member of the Senate Judiciary Committee, introduced legislation establishing an independent Inspector General for the Judicial Branch. Rep. Lamar Smith (R-TX), Chairman of House Judiciary's Subcommittee on Courts, the Internet, and Intellectual Property is an original co-sponsor of the House legislation, H.R. 5219, "The Judicial Transparency and Ethics Enhancement Act of 2006." See: Jeff Lungren and Terry Shawn, "Sensenbrenner, Grassley Introduce Legislation Establishing an Inspector General for the Judicial Branch" [Press Release], U.S. House of Representatives, Committee on the Judiciary, http://judiciary.house.gov/media/pdfs/judgeIGintro42706.pdf, accessed 06/28/06.

The Breyer Committee Report [PDF] was finally released September 2006, http://www.supremecourtus.gov/publicinfo/breyercommitteereport.pdf, accessed 09/21/06. It concluded that the commission was generally satisfied with the manner in which federal judges had been policing themselves and that only minor adjustments were necessary to satisfy public concerns.

On July 16, 2007, the Committee on Judicial Conduct and Disability of the Judicial Conference of the United States released its "Draft Rules Governing Judicial Conduct and Disability Proceedings" for 90 days of public comment. See: http://www.uscourts.gov/library/judicialmisconduct/commentonrules.html, accessed 09/21/07. If adopted by the Conference, it will constitute binding guidance for federal judges and circuit staff on a full spectrum of issues. Judge Ralph K. Winter of the U.S. Court of Appeals for the Second Circuit is Chairman of the Committee. About two hours of public testimony was scheduled for September 27, 2007 at a U.S. Courthouse in Brooklyn, New York.

Establishment of an independent Inspector General was one of the issues considered by the Committee. By letter, Bernofsky recommended to the Committee that branches of the Inspector General's office should be established in each circuit to hear complaints of misconduct, and that these branches have the authority to convene independent grand juries to examine meritorious cases of misconduct and recommend further action where necessary.

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