Roy Moore, the disgraced judge turned disgraceful Senate candidate, received good news recently when the Retirement Systems of Alabama (RSA) Board approved his $135,000 annual pension, representing 75% of his annual salary before he was suspended from his duties as Alabama Chief Justice in September 2016. The RSA Board indicated that it has no legal authority to reject or change a judge’s pension. Moore qualified for the pension under state law due to his previous years of service and age at the time he was suspended.
Meanwhile in Washington, Senator Charles Grassley recalled ex-judge Thomas Porteous’s efforts to fleece taxpayers with his own retirement pension. Porteous was impeached and removed from office in 2010 for taking bribes and engaging in a variety of corrupt acts. Shortly before he was impeached, Porteous tried to claim disability retirement in order to secure a lifetime annual salary of nearly $175,000.
No one could be blamed for wanting to deny retirement payments to judges whose conduct in office was reprehensible, as was the case (in different ways) for Moore and Porteous. The counterargument is that reprehensible conduct cannot be clearly defined, and the ability to remove benefits will become a weapon against judicial independence. Where and how should we draw the line?
One possibility is to invest a special body with the responsibility of determining whether a judge’s conduct has been so bad as to forfeit retirement benefits. Senator Grassley has proposed an Office of the Inspector General for the Judicial Branch for this purpose. Another possibility is to leave the decision to the governor or another executive, as West Virginia has done. Yet another option is to let the judiciary police itself. The federal courts have a mechanism in place to do so under the Judicial Conduct and Disability Act of 1980, but legislative dissatisfaction with internal policing is exactly what led to Senator Grassley’s latest proposal.
I cannot say with any confidence which is the best approach, but two things seem clear: (1) it is entirely possible to separate a judge’s decisional independence from his professional ethics, and (2) pure self-policing may increase the courts’ power but also weakens their public legitimacy. Abuses of the retirement system, especially as they pertain to disability retirement, might therefore be lessened if they were monitored by some credible external organization.
There is the understandable risk that any external review body would itself become politicized — or at least be subject to claims of politicization. But a carefully structured review organization, working within a well-defined and narrow scope, has the capacity to serve as a useful, confidence-building check on judicial excess.
What is more, state and federal judges might want to become directly involved in creating and structuring such an organization. The courts have routinely found opportunities to build public confidence by instituting broad-based programs that serve as external checks on judicial work. Judicial performance review committees, rulemaking bodies, and access to justice commissions are just some examples. When the court system itself initiates the program, it retains more control over its structure and scope, all the while buffering itself from greater legislative or executive interference.
This sort of activity is common to almost all public organizations, and many private organizations as well. And state courts seem to have adopted the strategy with greater success than their more aloof federal brethren. Perhaps a more vocal approach from Congress will spur the federal courts into more comprehensive action on their own.
The Interdependent Third Branch 