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Is It Time for an Inspector General of the Federal Courts?

By Casey C. Sullivan, Esq. on July 08, 2015 | Last updated on March 21, 2019

Quis custodiet ipsos custodies, the Latin goes. Who watches the watchmen? Today, in certain circles, you might also hear people wondering, "Who judges the judiciary?" Given the fact that the Supreme Court has had a slightly less conservative term and that certain circuits -- we won't name any names -- often rule against conservative interests, many on the right wing are starting to discuss instituting an Inspector General of the Federal Courts to act as a check on supposed judicial activism, corruption or overreach.

The Inspector General of the Federal Courts would investigate alleged misconduct, seek out fraud and waste, and recommend changes in the judiciary -- even to our sleepy Federal Circuit.

An Idea Decades in the Making

The idea has been around for years, generally put forward by conservative politicians and coming back in to fashion when the federal courts issue a politically polarizing opinion. The first bill seeking to establish an Office of the Inspector General for the federal courts was introduced by Senator John McCain twenty years ago, though that failed bill was limited strictly to the administrative issues.

The idea was revived in 2006 and given a much broader mission. Critics claim that such an operation would violate Constitutional separation of powers doctrine and interfere with the autonomy of the courts.

The most recent legislation was proposed in 2013 by Senator Chuck Grassley of Iowa and Representative Jim Sensenbrenner from Wisconsin's fifth district. Such an Inspector General would act to "detect, expose and deter problems and help keep accountability with the American people," according to Grassley. Proposed responsibilities would include investigating alleged judicial misconduct and suggesting changes in laws and regulations governing the Judicial Branch.

Not Entirely Crazy ...

There is, indeed, the occasional scandal that may merit outside investigation. In the Federal Circuit, for example, judges have often been accused of being too chummy with patent lawyers. Some patent reform advocates have even called for eliminating the court all together, given perceived bias. Point in case: last year, Judge Randal Rader had to step down as Chief Judge and retract two rulings after his conflicts of interests were revealed after the cases were decided.

Though Unlikely to Succeed

Despite occasional judicial wrongdoing and the renewed interest in restraining the judiciary, the proposed legislation isn't expected to go anywhere. After all, as Dirk Olin, director of the Institute for Judicial Studies, wrote when the legislation was most recently proposed, "Congress already has complete authority to fund the bench, impeach jurists for malfeasance, and create the rules for recusal. Does it really need to hire a judge cop?"

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