WATCHING THE BENCH: Black Robe

...Not surprisingly, most potential judges think they’re swell...

...But then, exhausted and disillusioned, he retired...

...Forget about filing a complaint against a judge unless it’s something on the front page,” laments Kay Ostberg, executive director of the legal reform group HALT...

...The allegations did finally lead to an investigation-not of Levine, but of Holtzman...

...If the case is referred for further investigation, the punishment can be censure or a reprimand, which can range from a private scolding to temporary suspension...

...District Court Judge Harry Claiborne in Las Vegas was found guilty in 1984 of filing false income tax returns and was later impeached by the Senate, as was Alcee Hastings, a U.S...

...WATCHING THE BENCH: Black Robe There‘s one group of criminals judges still go easy on: themselves by Stephanie Mencimer Helen Guercio had been a clerical worker in the Detroit courts for 45 years, so she had a pretty good idea of how the system worked...

...But the judicial branch remains accountable to virtually no one but itself...

...Lawyerhood of silence No one knows that better than the lawyers...

...It involves adjustments at every level, from the ABA to the Judiciary Committee to the courts’ internal investigative mechanisms to the press...

...Stephanie Mencimer is a Washington writer: Research assistance was provided by Scott Greenberger: Not so fast, you say: We know what movies Robert Bork rents from the local Blockbuster Video, we know when Douglas Ginsburg got stoned, and many of us know more about Clarence Thomas than we can stomach...

...In fact, they aren’t even required to make the reasoning behind their decisions -or even the decisions themselves-public...

...And only one, Ryskamp, was rejected...

...Congress has created such independent oversight bodies in the past-see the Congressional Budget Office or the Office of Technology Assessment...

...After nine days of hearings, the committee conceded that the rape demonstration had in fact occurred...

...Benedict listened, and then went to work...

...Judges were taking kickbacks and bribes, even in their chambers...

...But don’t point the finger at the Senate...

...Judges have one hell of a responsibilityand thus judicial overseers have an equally crucial obligation to make sure those on the bench deserve to be there...

...In 1990, Congress created a commission to examine both the impeachment and disciplinary processes...

...But people like Helen Guercio and Robert Surrick aren’t so lucky...

...ABAsed Thankfully, a handful of judges have been expelled from the judiciary for violating the laws they swore to uphold...

...From 1989 through 1991, 988 complaints were filed by lawyers and other citizens against federal judges...

...Another approach would be to create committees of lawyers and citizens to review candidates-which would encourage input from a wider range of interested parties...

...Despite years of corruption not one lawyer came forward to report the malfeasance, he recalls, even lawyers who weren’t on the take...

...And while the ABA sets the judicial code of conduct, it hasn’t the teeth to enforce it...

...In the midst of a 1987 sexual assault trial in Kings County District Court, Judge Irving W. Levine ordered the rape victim down on her hands and knees to demonstrate the position in which the crime occurred...

...Much of the ABA’s information comes from a questionnaire that candidates are asked to complete on their judicial temperament, years on the bench, professional competence, integrity, health, and so on...

...Today, the paper that criticized the judiciary awaits a judgment from the bench...

...But in more than 200 years, only 14 federal judges have been dragged before the Senate for impeachment hearings...

...that commission offers a window of opportunity for real reform...

...The public must have faith in the judicial system for it to work, and if judges are publicly and frequently criticized, that faith will be eroded...

...The Ljudicial] community is set up to protect them...

...Last year, it debated and held roll call votes on only two of 58 nominations, Clarence Thomas and Kenneth Ryskamp...

...They’re not going to pull guys from the drug squad or the organized crime unit just to see if some judge is taking kickbacks,” snaps FBI spokesman Nestor Michnyak...

...The lawyers didn’t use the internal mechanisms for reporting the fraud, he explains, because they knew they didn’t work...

...He once sentenced a drunk to death because he criticized the justice system while in the lockup behind the courtroom...

...An inquiry board of lawyers and judges examined the charges, but one member, attorney Robert Surrick, felt the board was giving the judge a free ride...

...And even when the evidence against a judge is overwhelming, punishment tends to be of the wristslap variety...

...But, unfortunately, the nomination process is Chinese water torture compared to the kind of scrutiny judges receive once on the bench...

...A lot more passes were given before Greylord,” says Jiganti...

...Of course, the FBI can conduct independent investigations of sitting judges, but such probings have remained a low priority...

...Guercio, who worked for another bankruptcy judge, had noticed that Hackett was drawing nearly all the court’s large corporate bankruptcy cases-an oddity, since such cases were supposedly doled out at random...

...Other than that you could send up Attila the Hun and they’d pass him...

...Moreover, most of these cases were being argued by one prominent bankruptcy lawyer, Irving August...

...As Senate Judiciary Committee Member Paul Simon said during a 1989 hearing on the ABA’s role in the nominating process, he occasionally gets the “uneasy feeling when a nominee is front of me that I hope he doesn’t get anything very complicated in front of him if he is a federal judge...

...She’d break protocol and bypass the Detroit judiciary altogether, taking her suspicions to the Administrative Office of the U.S...

...In the meantime, the press and law enforcement officials have discovered enough judges taking kickbacks to suggest that corruption in the judiciary is not an unthinkable proposition-although getting bad judges off the payroll seems to be...

...It looked to Guercio like a case of kickbacks, but, still, she was just a secretary...

...In Florida, the court ruled in 1973 that “the judicial process as an institution of government is a sacred proceeding...

...When The Philadelphia Inquirer reported on corruption in the Pennsylvania case, it found itself slapped with a libel suit...

...They don’t have the stomach or the resources to oppose too many candidates...

...Holtzman, who felt the judge’s behavior was “profoundly humiliating and degrading to the victim,” filed a complaint with the state’s commission on judicial conduct...

...Another is to create independent bodies, made up of lawyers and nonlawyers, to thoroughly investigate charges against the judiciary...

...So a frustrated Surrick took his charges to The Philadelphia Inquirer...

...She was charged by the district court’s grievance committee-made up, of course, of judges-with making public accusations of misconduct against their fellow judge...

...And lately, federal bankruptcy judge Harry Hackett’s cases didn’t seem to fit it...

...Even so, the committee concluded that by making her complaint public, Holtzman was guilty of violating the professional code of conduct, not to mention “thoroughly reducing public confidence in the entire judiciamegal system...

...But the judge in question was still a sitting judge, and he struck back with the power of his position, initiating disciplinary proceedings against the lawyer to revoke his bar membership for publicly disgracing the bench...

...And one drastic solution is to end life terms for federal judges, which isolate them from public scrutiny...

...Surrick filed a petition to turn the investigation over to the state supreme court, but the court refused to hear a case against one of its own members...

...Unfortunately, the committee isn’t always exacting in its standards...

...For truly effective oversight, we’ll pretty much have to start from scratch...

...The sergeantturnedjudge apparently reveled in his promotion...

...But these small reforms are just a start -and they still leave judges and lawyers in charge...

...Guercio didn’t fare as well...

...One key reform would be to try misconduct cases by jury rather than behind the closed doors of another judge’s chambers...

...Not surprisingly, the courts have upheld the notion that lawyers may be disciplined or disbarred for criticizing judges-even if the criticism is found to be true...

...So she took the evidence to the chief district judge, who was responsible for ruling on allegations of foul play...

...The U.S...

...A few years later, after raising questions about another judge, she was fired...

...But in most cases that detective work consists of a few phone calls to the nominee’s colleagues...

...of these, seven were convicted and removed from office...

...And most don’t, thanks primarily to a system that allows judges to rule on cases that involve their peers...

...Surrick spent seven years fighting disbarment, eventually clearing his record...

...Thanks to two decades of reforms, including the Freedom of Information Act and an explosion in the number of government investigators, the executive and legislative branches have come under closer scrutiny...

...Reaching a staff attorney in the bankruptcy division, Milner Benedict, she unloaded her fears...

...But there’s something this panorama of recent judicial inquiry doesn’t take into account: All the klieg lights and interrogations are reserved for just nine of America’s nearly 30,000 judges, the Brethren...

...This lackadaisical effort at investigating nominees has had a predictable result: Of the more than 500 recommendations issued by the ABA since 1980, just one was unfavorable (and that unlucky man died during the confirmation process...

...All federal judiciary candidates, once nominated by the president, must be confirmed by the Senate, which in turn relies on its judiciary committee for a recommendation...

...Even high-profile lawyers, such as Brooklyn District Attorney and former congresswoman Elizabeth Holtzman, aren’t safe from retribution...

...But just ask Helen Guercio or Elizabeth Holtzman or Robert Surricknot reforming it is courting real disaster...

...After peering more closely into the court’s financial records, Guercio also discovered that Hackett, who determined lawyers’ fees in such cases, was awarding August what seemed to be excessively high payments...

...it can act only on cases that get that far...

...To complement the flimsy FBI and ABA investigations, we might empower a Senate-appointed permanent, nonpartisan investigations commission to probe the backgrounds of federal judicial nominees...

...How confidence-inspiring is a track record like that...

...In recent years, anywhere between two to five of the 60 judges annually reviewed have been found unfit to remain on the bench...

...August had been sleeping with the clerk in charge of the blind draw and paying her off for ensuring that his big cases were handled by Hackett...

...Consider federal district judge Robert Collins in New Orleans, who was sentenced to six years in prison in 1991 for taking a bribe from a drug smuggler in exchange for a lighter sentence...

...she also took her case to the press...

...John Jiganti was president of the Chicago Bar Association in 1987, when many of the indictments were handed down...

...And the ABA-well, it’s got its own problems...

...Hun jury In a perfect world, bad judges would be plucked out before they had a chance to wrinkle their robes...

...And while most states have set up a system of grievance committees and judicial inquiry boards, the boards’ domain is limited to the state court system...

...Courts, has only five or six auditors to oversee all 837 federal judges...

...The other agency deputized to investigate complaints of court crime, the Administrative Office of the U.S...

...And the bench also needs some insulation from lawyers (or their clients) who think that just because they lost a case the judge is on the take...

...Once judges get on, though, the task is even larger: ending the closed, self-regulating disciplinary culture...

...While investigations of the judges who break those rules tend to be few and far between, lawyers and other observers who do complain are at best ignored and at worst punished for daring to point a finger...

...Bribed imbibers By stifling criticism and abdicating judicial oversight to the judges themselves, our system invites the type of abuse that festered in Chicago’s Cook County Circuit (the largest court system in the nation) in the early eighties...

...The first thing to do is get tougher on judges before they become judges-that is, before they achieve their “untouchable” status...

...Or consider the 1983 case of a Pennsylvania supreme court justice who came under investigation for, among other things, allegedly using his political clout to secure government jobs for his friends...

...Where would you place your bets...

...What the Justice Department finally found makes a Scott Turow novel look boring...

...Today, the judge is still sitting...

...The press, which slathers over the Supreme Court but considers the lower courts unworthy of its scrutiny, has some rich new territory here-although that territory has a few built-in perils...

...Of course, the judiciary committee has a cover: It relies heavily on the American Bar Association (ABA) and the FBI for its investigative legwork...

...The CBA has also made a stab at better review of federal judges...

...District Court judge in Miami who allegedly solicited bribes...

...When the dust settled several months later, Guercio’s uneasiness had proved founded...

...But as became clear during the Thomas hearings, the FBI considers the White House, not the Senate, its client...

...Courts, an agency set up by Congress in 1980 to make sure complaints like hers don’t get muzzled...

...There, every single charge was dismissed...

...The result...

...Problem cases like these help explain an even bigger problem: Because judicial discipline is so inadequate, reasonable people won’t risk the hassle of coming forward, even when they know something is wrong...

...Of the rest, 259 cases were channeled to “judicial councils”-select committees of judges charged with getting to the bottom of allegations...

...Any criticism that “brings into scorn and disrepute the administration of justice” is not protected by the First Amendment...

...After completing the self-evaluation, each candidate is scouted by a lone ABA investigator-putatively the tough part of the drill...

...Since the sting, the Chicago Bar Association (CBA) has attempted to turn peer review of state judges, who come up for evaluation every six years, into more than a rubber-stamp process...

...At least Anita Hill still has her job, and millions of supporters...

...Several were alcoholics, including one circuit court judge who was on occasion so hung over that he had his courtroom police sergeant don a black robe and work his morning shift...

...In fact, 13 state supreme courts have ruled that lawyers are not protected by the First Amendment when it comes to criticizing judges...

...In the end, the committee never called Levine’s conduct into question...

...As for Hackett, the investigators unearthed compelling evidence-like the fact that August had paid for trips taken by the judge and his girlfriend-that in return for awarding August cushy fees, the judge was taking a cut for himself...

...Below them, the rules of the game are not only different, but written and implemented almost exclusively by other judges and the lawyers whose careers depend on them...

...He refused to resign and still collects a salary of $125,000 a year-and will continue to do so unless he is impeached by Congress...

...Some sort of judicial protection is perfectly reasonable...

...He can either refer a case to a council of district and appellate judges for further review and a decision, or dismiss it as he sees fit...

...But the overseers don’t seem to be sweating it...

...But clearly, fixing the judicial discipline system won’t be easy or politically painless...

...And on paper at least, the complex nomination system looks like it’s primed to pluck away...

...Needless to say, the stakes here are enormous: While Supreme Court justices hear fewer than 130 cases a year, the federal courts alone hear more than 30,000 annually, and in the process create the bulk of the law of the land...

...Her complaints soon disappeared unanswered into the abyss of the court system...

...But while August was eventually sent to jail, Hackett simply retired at the end of his term-in good enough standing to have a courthouse dedicated to him in his hometown of Ann Arbor, Michigan...

...Mind you, that judicial committee was merely following the law...

...Justice’s eight-year investigation, known as Operation Greylord, produced indictments against 88 judges, lawyers, police officers, and court personnel on charges including racketeering, bribery, and tax and mail fraud...

...In each of the 13 federal judicial circuits, a chief judge is appointed to review all complaints lodged against fellow judges...

...Indeed, after the Thomas hearings, politicians began complaining that there’s too much public scrutiny of judges-and suggesting that the press and Congress and the lawyers should all lighten up...

...Supreme Court has reinforced the limit on lawyers’ free speech rights by refusing to address the issue...

...The problem is not just that these judge-jurors rarely punish their fellow benchmates, it’s that their word is the final say...

...But while these charges were new to Justice, they were old news to many lawyers...

...The disciplinary system in place in Chicago at the time of Greylord is very much like the current system for federal judges...

...But the pendulum has swung so far in favor of the bench that when lawyers moan that judges think they’re God, they’re not far from the legal truth...

...Chief judges took corrective action in just 23 of those cases...

...Instead of relying primarily on selfevaluations, it now surveys the federal judiciary and interviews lawyers confidentially about each judge’s performance...

...Although they have the best view of the playing field, they also have the most to lose by taking on a judge...

...Guercio had logged enough experience in the labyrinthine legal system to know there was a second way to get charges heard...

...But if federal judges are content with the status quo, Greylord showed Chicago that there had to be a better way...

...That’s perturbing enough...

...But we can’t expect the judiciary to see the wisdom of ideas like these without a little nudge, which is why the most likely path to the reform of judicial discipline lies outside the courtroom...

...In the annals of the American judiciary, the Detroit case is atypical-not just because of the corruption, but because that corruption was investigated and exposed...

...There is an informal quota up there of about one or two a year [who are challenged],” says Allan Morrison, head of Public Citizen’s Litigation Group...