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Can The Judicial Conference Refer Supreme Court Justices To The Attorney General?
The Judicial Conference will study the issue, but hints the answer is probably no.
Federal law requires certain officials to submit financial disclosures. And under 28 U.S.C. §13106(a) the Attorney General can bring a civil action if a covered official "knowingly and willfully fails" to file such a report.
Section (b) permits agencies, including the Judicial Conference, to make referrals to the Attorney general:
(b) Referral to Attorney General.-The head of each agency, each Secretary concerned, the Director of the Office of Government Ethics, each congressional ethics committee, or the Judicial Conference, as the case may be, shall refer to the Attorney General the name of any individual which such official or committee has reasonable cause to believe has willfully failed to file a report or has willfully falsified or willfully failed to file information required to be reported. Whenever the Judicial Conference refers a name to the Attorney General under this subsection, the Judicial Conference also shall notify the judicial council of the circuit in which the named individual serves of the referral.
Does this statute permit the Judicial Conference to refer a Supreme Court to the Attorney General?
In a pair of letters, the Judicial Conference hints the answer is probably no, but announces it is studying the issue:
First, the Judicial Conference has never taken a position on whether its referral authority under 5 U.S.C. § 13106(b)—to refer judges to the Attorney General for investigation into whether they have "willfully" violated their reporting obligations—applies to Justices of the Supreme Court of the United States. The question, to be clear, is not whether the Ethics in Government Act applies to the Justices of the Court. It is whether the Judicial Conference's referral authority applies to the Justices. There is reason to doubt that the Conference has any such authority. Because the Judicial Conference does not superintend the Supreme Court and because any effort to grant the Conference such authority would raise serious constitutional questions, one would expect Congress at a minimum to state any such directive clearly. But no such express directive appears in this provision. The provision in fact contains a suggestion to the contrary. "Whenever the Judicial Conference refers a name to the Attorney General under this subsection," it says, "the Judicial Conference also shall notify the judicial council of the circuit in which the named individual serves of the referral." 5 U.S.C. § 13106(b). A Justice of the Supreme Court of the United States does not "serve[]" in a "circuit." The Conference has never addressed the meaning of this provision, and I write only to identify the issue, not to resolve it. In view of another referral request made with respect to Justice Jackson and her financial disclosure statements, however, the Conference plans to study this question in the months ahead.
This application of the clear statement rule, coupled with the reference to the "circuit," suggests the Justices are not covered. But we'll see what the Council comes up with.
By the way, these letters stem from complaints that Justices Thomas and Jackson failed to submit complete disclosures. Both Thomas and Jackson subsequently filed amended reports, and agreed to follow the rules. Nothing to see here. But the separation of powers issue is important.
Speaking of referrals, I think it was a mistake for the Judicial Conference to transmit an impeachment referral for Judge Kindred who had already resigned from office. The issue of late impeachment is a complicated one, on which people can reasonably disagree. And unlike with Trump, there is no argument that any articles of impeachment were approved before Trump left office. I recognize that the Committee on Judicial Conduct and Disability recommended that the referral be transmitted. I'm not sure that body has it within its ambit to make rulings about the federal Constitution. But the Judicial Conference could have simply declined to transmit the impeachment referral, in light of the important constitutional question at play. It would have been sufficient to simply release a public censure of former-Judge Kindred.
And speaking of censures, I have another unsolicited suggestion for the Judicial Conference. What should be done about judges like Judge Wynn who withdraw their senior status for overtly partisan reason? Issue a public censure. If Chief Justice Roberts wants us to believe there are no Obama judges and no Trump judges, then judges who act like Obama judges should be publicly called out. I suspect a swift and public rebuke from the Chief Justice would prevent any other judges from jumping ship. And unlike chastising members of the coordinate branches of government. the Chief Justice has an actual role to supervise the federal judiciary.
Enough about the Judicial Conference tonight. I'll get to the latest in the Judge Newman case in due course. I may have already exceeded my quota for 2025.
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Judges, as well as anyone else, can petition the government for a redress of grievances under the First Amendment.
It would be up to the government (Congress, AG) to decide what to do on the subject of the petition.
I am not a fan of superseding the Constitutional impeachment process with a power by the judicial conference to impose discipline (rather than simply recommend discipline to the appropriate parts of the government).
That was my thought: How could the judicial conference not have the power to do what any random American could do as a matter of constitutional rights?
The flip side is that the AG is perfectly free to ignore the referral.
Because the authority of the judicial conference to make such referrals is defined by statute and the statute does not (and probably constitutionally could not) empower them to refer a S.Ct. justice to the AG.
How not?
You don’t see any constitutional issues in Congress attempting to establish a body composed of circuit and district judges to superintend justices of the Supreme Court, a separate and coequal branch of government?
Sorry I have no ridiculous folksy dribble to add to that, I know how you like it so much.
Something like 90% of testimony before Congress is government itself. Most of that is government petitioning for its own enlargement, but sure, judges can get in on it, too.
A referral is not a complaint to the AG by a citizen. Rather, it is an official act by a governmental agency or Congressional committee. Various federal statutes allow different agencies or committees to make referrals to the AG for action for violations of that statute. As a general matter, the people allowed to make referrals generally have some sort of supervisory or oversight responsibility over the person referred. The question here appears to be whether the Judicial Conference has that sort of responsibility over the Supreme Court.
Standing?
Legislated standing?
A referral is a complaint to the AG by a citizen. Or even a non-citizen. It has exactly the same legal effect whether made by a congressional committee, a government agency, or a clerk at the 7-11: none whatsoever.
A referral as discussed in the OP is different from a complaint that anyone can make. Only certain people (agencies, certain Congressional committees, and the Judicial Conference) are allowed to make referrals. JB quotes the statute, which makes this clear. A referral is an official act.
Does a referral obligate the AG to act? No. But the AG is likely to take a referral under 28 U.S.C. §13106 much more seriously than a complaint by one of us.
"Referral" is just a fancy word for it. It is not in fact any different from a complaint anyone can make. (Other, obviously, than the fact that if I make a complaint and sign it "Judicial Conference" I can get in trouble for impersonating a government official. But the rest of the "referral" is identical regardless of who submits it, in both substance and legal significance.)
The AG is also more likely to take a complaint by Jeff Bezos more seriously than a complaint by one of us. That's not a legal distinction; it's just a practical one.
And I would take a referral by a fruit fly more seriously than yours. But I suspect the fruit fly would consider whether the text of 28 USC 1306 in light of the constitution and conclude it had no power to refer a S.Ct. justice to the AG, and would never attempt to make the referral at all.
Hush. The human grownups are speaking.
I bet the fruit fly’s response would have been wittier. But, as noted, the fruit fly would never have made your original bone-headed response in the first place. And we should add that if it did, it likely would have been too embarrassed to comment further, unlike crazy Dave.
So, who gives a ___ what the federal statute says or the constitution could allow? Yeah that's a real informed viewpoint. Good thing we have your legal expertise to rely on Dave.
The Constitution provides for the President to give a State of the Union Address. It does not provide for the other party to give a response. Does that mean a response is unconstitutional?
Your example is inapposite. The “response” is a statement issued by representatives of the minority party. It isn’t an action of a coordinate branch of government interfering with another or Congress attempting to oversee the executive outside constitutional processes.
Do you think Congress could establish *any* body capable of referring SCOTUS members to the AG, or is the issue that *this particular* body can't constitutionally do it?
You've suggested an irrelevant example and I've responded to your comment. Now you answer a question, if you can. Do you believe Congress can create a body composed of circuit and district court judges to superintend S.Ct. justices?
The word "superintend" is not a legal one, so that can't be answered. Let's assume for the sake of argument that Congress cannot create a body composed of circuit and district court judges who can exercise formal legal authority over SCOTUS justices. But that in no way even remotely suggests that Congress cannot create a body composed of circuit and district court judges who can conduct investigations of, or write reports about, SCOTUS judges. Heck, Congress could create a body composed of postal workers and park rangers who could conduct investigations of, or write reports about, SCOTUS judges.
The word “superintend” is not a legal one, so that can’t be answered?? Well I wasn’t asking you crazy Dave. As noted above, I’d sooner ask a fruit fly. Ask one yourself, and it would say WTF do you mean? And it would point out that this non-legal word that causes you so much consternation is actually employed quite ubiquitously in the US Code. The judicial conference even uses it in their letter. I would recommend first that you buy a dictionary, then ask someone how to use it, and after a few years attempting to educate yourself, contemplate the absurdity of lower court judges created by Congress overseeing S.Ct. Justices, representing a separate and coequal branch of government.
And if, for some reason, you feel compelled to embarrass yourself further with more responses, think for yourself instead of using some retarded AI tool. Thinking is important.
You're describing the problem I was criticizing. Impeachment should be recognized as the sole remedy for naughty judges, and giving privileged status to any outside request for impeachment looks like an attempt to push the House into reaching a particular result rather than using its own judgment.
"Attempting to push the House into reaching a particular result" is called democracy.
"Impeachment should be recognized as the sole remedy for naughty judges"
Uh, no. Walter Nixon and Harry Claiborne were criminally prosecuted and convicted while still in office. Alcee Hastings was tried and acquitted. All three were later impeached.
The knowing and willful filing of a false financial disclosure would also violate 18 U.S.C. § 1001(a). Perhaps the worst decision of the Obama Administration was its refusal to seek an indictment as to Clarence Thomas's filing of forms which listed his wife/bagwoman's income as "none".
It's the sole remedy for *removing* naughty judges from office. I was following up on my comments in previous threads about this very subject. I'm sorry if I confused you (assuming I actually did).
if a misbehaving judge is in prison while still holding down his post, that's a problem in need of a remedy, and my humble contention is that impeachment is that remedy.
That is, impeachment is the only remedy for naughty judges, *specifically including* those in prison. Putting them in prison while they still hold their office is *not* a remedy, are you saying it is?
They held a separate impeachment trial for Claiborne even after he went to prison, and Congress started impeachment proceedings against Samuel Kent after he went to prison, because Kent initially wanted to hold onto his office - at least long enough to get a good pension. Kent quit when he realized Congress was serious about getting him out of office immediately.
Imprisoning Kent while letting him keep his job would simply not have been a remedy for the problem of naughty judges, because at the very least it would have let him get the pension rights which only good judges should get.
In a previous thread I recall that someone said it wasn't really a punishment for the judicial conference to deprive a judge of her work assignments, because she still got paid. But what about public-spirited judges who take the job *because* of the change of doing judicial work? That's the context in which I claimed that impeachment was the constitutionally-specified method for removing judges.
But, of course, put them in prison, too. Just remember that imprisonment by itself isn't a remedy for the problem I discussed: misbehaving people holding judicial office.
As individuals, yes they can petition the government for anything they like. That has no bearing on whether a subordinate entity of the government may do the same thing, though. The Judicial Conference is an entity created by statute and possessing only the powers and rights spelled out in that statute.
Wrong, its powers must also be justified by the Constitution - which a statute can't overrule.
That is true but doesn't contradict anything I said. The Constitution grants the right to petition government to the People. The Petition Clause says nothing about subordinate parts of the government itself.
A citizen who happens to have a government job has the right to petition.
I don't see how Congress can give someone other than itself the power to impose discipline on judges.
Executive branch officials, I assume, can be punished by their superiors, but judges in their individual capacities have no superiors, only their courts do. So a district *court* is under the higher courts, a district *judge* has no supervisor other than Congress, in the sense of someone who can discipline him.
The point you're missing is that he/she has the right to petition in his own name. The judges could even form a union to share resources and petition as a group. What they cannot do is to petition as the Judicial Conference (without specific statutory authorization).
And, yes, the Judicial Conference, an entity created by statute, given certain governmental authority and staffed by government employees is most definitely a subordinate part of the government.
I didn't say a citizen could petition in the name of a part of the government. I've grown accustomed to taking down straw men, though it remains annoying.
Again - "I don't see how Congress can give someone other than itself the power to impose discipline on judges."
Oh, I see you weren't straw-manning after all. I'm very sorry.
Now, enlighten me - are members of the Judicial Conference appointed according to the Appointments Clause? Not snark, I just don't know. But if not appointed via the Appointments Clause, how can they wield government authority?
Can you imagine someone -- anyone -- referring John Marshall to the Attorney General?
I don't even know who Madison's AG was, but I highly doubt that he would have gotten far suing Marshall in Marshall's own court. And that's why Impeachment exists because it is the ONLY way of addressing this.
And remember that Impeachment is an act of the LEGISLATURE and not the executive branch...
The answer is no.
The constitutional remedy is impeachment.
DMN has noted that there is no legal moment to referring stuff to anyone. It's just a letter.
So can and can't is kinda besides the point.
Also: I have another unsolicited suggestion for the Judicial Conference. What should be done about judges like Judge Wynn who withdraw their senior status for overtly partisan reasons
What a sad whiney man Blackman is.
As opposed to an internet anon who takes potshots at law professors?
Hah!
Physician - heal thyself.
Justice Clarence Toady figured out several years ago that he could file false financial disclosures with impunity without being prosecuted under 18 U.S.C. § 1001. The statute of limitations has run now, but he should have been prosecuted for failing to disclose who is putting biscuits on the Thomas family breakfast table.
This failure to prosecute is perhaps the worst decision of the Obama administration.
If only there was some Constitutional process to judge corrupt Judges!
Did you mean Biden administration? Because while Thomas's violations might date back to the Obama administration, I don't think they were generally known at the time.
You really want to go down this Yellow Brick Road? Some peoples might say a certain Mad Man across the Water murdered thousands of Afghani's not to mention our own peoples(OK, some might say that about Bennie and his Jets or Little Rocket Man). What's that Statue of Limitations on Murder again? My Island Girl Tulsi won't let the sun go down on this country
You can’t possibly believe the Biden administration is not the 3rd term of the Obama administration. And not be a sentient being at least…
"Did you mean Biden administration? Because while Thomas's violations might date back to the Obama administration, I don't think they were generally known at the time."
No, I meant the Obama Administration. It was reported at least as early as January of 2011.
https://www.abajournal.com/news/article/justice_thomas_accused_of_failing_to_report_686k_in_wifes_income/#google_vignette
https://thehill.com/policy/finance/80474-records-show-justice-thomas-didnt-report-wifes-income/
Why insult him as “Toady”? I thought repulsive racist democrats preferred to call him an “Uncle Tom”?
To-may-to, to-mah-to.
Truly classless. And unprofessional. Just another leftist troll clown, whose legal knowledge likely stems from Matlock reruns.
"This failure to prosecute is perhaps the worst decision of the Obama administration."
You mean the lawless right-wing MAGA Obama administration?
Pure applesauce. If there’s a real separation of powers issue, then it arises whenever a statute invites a judge to refer a matter for potential prosecution. There’s no difference between a Supreme Court justice and any other Article III judge, or for that matter any other person becoming the subject of an executive inquiry. But it doesn’t strike me that a mere referral implicate any constitutional concerns, or that anyone ever suggested it did, until Mr Blackman started casting about for defenses of Clarence Thomas. (If a judge could mandate a prosecution, as is true in some civil law jurisdictions, that would clearly be a problem.)
The textual point about “judicial council of the circuit in which the named individual serves” is equally silly. There are plenty of “judicial officers” (as defined in the statute, 5 U.S.C. 13101) who don’t serve in a circuit. Tax Court judges, CAAF judges, maybe CAVC judges, and Supreme Court justices. The obvious application of the administrative curlicue about circuit judicial conferences is that the administrative curlicue just doesn’t apply to any of them.
I yield to nobody in my contempt for Blackman, but he's not the one who raised these two issues. He's quoting the Judicial Conference. (You can tell, because if these were actually original ideas, then it would be Tillman, not Blackman, that came up with them.)
Fair enough. I retract that part (and only that part) of what I said.
Oh no not a “Referral”!!!!!
Does it go on the Judges “Permanent. Record”????
1) Blackman manages to defy Betteridge's Law, because the answer to his question is "Yes, duh." A "referral" carries no legal significance; it is pure speech, not an act, and of course judges can speak, so yes, they can do so. Maybe what Blackman meant to ask, but phrased incoherently, was whether Congress could require them to make a referral, which the statute purportedly mandates. ("shall refer") That's a tougher question, though I suspect the answer is still yes.
2)
"Overtly" means something very different than what Blackman thinks it means. Wynn did not say, "I am rescinding my resignation because I don't want Trump appointing my replacement." That would be overtly partisan.¹ But here's what he actually said:
I write to advise that, after careful consideration, I have decided to continue in regular active service as a United States Circuit Judge for the Fourth Circuit. As a result of that decision, I respectfully withdraw my letter to you of January 5, 2024. I apologize for any inconvenience I may have caused.
You'll notice no mention of anything partisan there. Which means it was not "overt." When Senator Tillis blasted Wynn for this, he called it "brazenly partisan." And while that's an opinion, it's at least not a facially false one, unlike Blackman's formulation.
¹Strictly speaking, whether it was would depend on whether it was only the election of Trump specifically, or any Republican, that motivated the decision to rescind, but let's not quibble.
I agree revoking a resignation is not legally misconduct under current law. But Congress could, if it wants to, make a judicial resignation irrevocable. We’re entitled to have opinions on whether such a law would or would not be a good idea. And people who think such a law is a good idea are entitled to refer to revoking resignations after elections as misconduct that there ought to be a law against.
1) That's not actually responsive to what I posted. I did not opine on whether it was "legally misconduct," so you can't agree with me on that point. I said that this particular revocation was not "overtly partisan."
2) A judicial resignation is irrevocable. The question is whether an announced, conditional intent to resign in the future is irrevocable.
A withdrawal for no specified reason where the only change in circumstance is the election of President Trump is pretty obviously f’ing partisan. For everyone except partisan hacks like you crazy Dave.
All Justices of the Supreme Court of the United States also serve as Circuit Justices of particular circuits.
https://www.supremecourt.gov/about/circuitassignments.aspx
Judge Wynn did not give any political reason for his decision to remain at his job. And if the political context of his action is enough to *infer* a political motive, then similar motives could be inferred from countless SCOTUS decisions including Citizens United and Shelby v Holder.
When Roberts's own decisions are questioned, he retreats to some version of "My written statements and opinions are apolitical, so you must assume my internal reasoning is apolitical." Other judges, including Wynn, will naturally follow his example.
Wrong location