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Judicial `undersight'

July 28, 2006

ONCE CONFIRMED BY THE SENATE, a federal judge has the job for life, and only the grim reaper, voluntary retirement or impeachment for "high crimes or misdemeanors" can pry that person off the bench. That's the way it should be, because justice benefits from a judiciary independent of political pressure from special interests or other branches of government.

That independence doesn't always sit well outside the court. Some conservatives have not been above calling for the impeachment of federal judges on purely ideological grounds. Other critics, just as frustrated but less blatant, have called for more subtle pressure, such as recent proposals to impose a federal inspector general with the power to crack down on supposed ethical lapses.

These efforts are easy to dismiss as not only improper but unnecessary, because the court is capable of policing itself. But what if it doesn't?

That's the question posed by the ongoing controversy over U.S. District Judge Manuel L. Real of Los Angeles. Real, a veteran of four decades on the bench, was charged in 2003 by a litigious local attorney with misconduct for seizing control of a bankruptcy case from another judge to make sure the defendant, whose criminal probation Real was supervising, wouldn't be evicted from her house. The defendant then lived in the home, which was owned by her ex-husband's family, for three years without paying rent.

What was the basis of the order, the lawyer for the home's owner sensibly wanted to know. "Just because I said it," Real responded. More cynical observers offered another theory -- that it was related to the defendant's attractiveness.

The ensuing inquiry made a mockery of judiciary self-oversight. Earlier this year, a federal judicial discipline panel ruled that it could not sanction Real because U.S. 9th Circuit Court of Appeals Chief Judge Mary M. Schroeder failed to properly investigate the complaint. Case closed.

Now Rep. F. James Sensenbrenner Jr. (R-Wis.), chairman of the House Judiciary Committee and a partisan critic of unelected judges, is exploring impeachment against Real for misconduct. On Wednesday, Sensenbrenner ordered a congressional subcommittee to begin an investigation.

A blatant attempt to compromise the court's independence? Not necessarily. Real's conduct probably doesn't rise to the level of a high crime or misdemeanor. But the court's initial investigation did not rise to any kind of serious level either. Sensenbrenner's challenge is one the court brought on itself.

Lifetime appointment brings with it the danger of abuse -- and a responsibility to engage in meaningful self-discipline. If judges refuse to police themselves and one another out of an overblown sense of entitlement, they inadvertently aid those in Congress who would like to impeach them for their politics. Aggressively weeding out misconduct may make for a less congenial bench. But what they lose in friendliness, judges may maintain in independence.

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