Judicial Independence: Can it Be Without Article Iii? - Richard B. Hoffman

• Citation: Vol. 46 No. 2
• Publication year: 1995

Judicial Independence: Can It Be Without Article III?

Richard B. Hoffman^* and Frank P. Cihlar^**

I. Introduction: Analysis of Judicial Independence of ALJs and Article I Courts Versus Article III Judiciary

Administrative law judges ("ALJs"), administrative judges ("AJs"), and Article I judges have been relied on to render decisions in a wide variety of legal matters deemed either excessively specialized in nature or sufficiently routine to justify removal from the authority of the Article Ill-created judicial branch of government.¹ These assignments range from individual disability claims under Social Security to licensing of nuclear plants. These officers process a far larger case load than United States District Court Judges, affect the rights of a larger number of citizens, and vastly outnumber active federal district court judges.² While the importance of these judicial officers is undisputed, the conundra at the heart of the concept of an administrative law judiciary persist.

First and foremost, can judges who have been appointed to effectuate overall agency policy ever attain adequate judicial independence to satisfy our basic conception of that elusive quality? Should these judges, assertedly needed to provide administratively expert decisionmaking in particular specialized areas of agency expertise, become generalists operating in the broader world of general administrative jurisprudence? Should they be governed in their conduct of cases by the standard procedures established by the Federal Rules used in all Article III courts? Finally and perhaps most critically, should they be selected on the basis of specialized experience in the particular area of agency jurisdiction in which they will adjudicate or should they bring to their task the kind of general skills and legal experience ostensibly sought in candidates for the Article III bench?

It should be emphasized that some regard ALJs—and, by implication, Article I judges, but not AJs—as imbued with the essential elements of judicial independence. An Administrative Conference of the United States report asserted, "It is now possible to say that some administrative deciders—notably ALJs—enjoy protection of tenure that render them almost as independent as their more heralded counterparts on the federal bench."³ These officials certainly occupy a unique position within their agencies. Although agency employees, who are bound by agency law and policy, and housed, serviced, and paid by the agency, ALJs enjoy judicial independence from their employing agencies, which may remove or discipline them only for good cause.

Furthermore, the agencies' power to evaluate ALJs' performance is most limited, as is the impact of any evaluation. Initially, the Office of Personnel Management ("OPM") establishes the salary level for ALJs independent of the agencies' ratings or recommendations. Further, ALJs need not satisfy the standard precondition to regular "step" increases in salary under which the agency head must certify that federal employees' work demonstrates "an acceptable level of competence."⁴ Moreover, the provisions for performance evaluation and performance-based removal actions that apply to all other federal agency employees specifically exempt ALJs.⁵ Finally, in case the question was directly raised, the OPM has explicitly declared that "[a]n agency shall not rate the performance of an administrative law judge."⁶

Nevertheless, these provisions have scarcely insulated ALJs from the general perception that they remain creatures subject to the control of the agencies they serve and, consequently, that any asserted judicial independence they possess is of a strictly limited variety when compared to that enjoyed by the Article III bench. In a frequently-cited critique, then-Professor Scalia rejoined that although "Congress chooses to call them judges, they [ALJs] are entirely subject to the agency on matters of law; they can be reversed by the agency on matters of fact, even where demeanor evidence is an important factor; and they can always be displaced, if the agency wishes, by providing for hearing before the agency itself or one of its members."⁷ Moreover, the agency which has employed the most ALJs—the Social Security Administration—has garnered massive criticism for its efforts to "manage" the administrative adjudication process.⁸

Furthermore, use of an OPM-ordained selection process does not itself serve to inspire confidence in the competence of the ALJs on the part of the independent practicing bar or parties to administrative proceedings. Indeed, one critical ALJ said that OPM's preparation of a new ALJ examination "may be the only instance of a primarily administrative staff made responsible for rating senior practitioners in a profession (the law) in which the raters are not trained. It is analogous to their being entrusted with selecting research scientists, architects, playwrights, ships' captains, actors, or astronauts."⁹ Finally, while ALJs may be fully independent decision makers, "once a decision is made, it is not granted the respect of automatic finality or even deference."¹⁰

While the selection process for federal district and circuit court judges is a highly politicized one, the regard in which the Article III judiciary is held stems, at least in part, from the public nature of the process. Most Article III judges have practiced law, and the confirmation process assures the legal profession an opportunity to be heard. But that regard stems, at least in equal part, from another factor: the lawyers selected for Article III judgeships tend to be chosen more for overall ability than for particular expertise. The backgrounds of the persons selected are more likely to be general rather than specialized—even in this age of the increasingly specialized practitioner. For this reason in particular, Article I judges, whose selection, while public, seldom commands attention—due to their inevitably specialized backgrounds—do not usually enjoy the same high regard. Moreover, there exists a perception that Article I courts are susceptible to political control, a concern shared by Judge Posner:

A greater drawback, at least to those who believe in the value of judicial independence from the partisan political process, is that a specialized court can be controlled by the executive and legislative branches of government more effectively than a generalist court can be. It is easier to predict how someone will decide cases in his specialty than how he will decide cases across the board; therefore, if courts are specialized, the officials who appoint judges will be better able to use the appointments process to shape the court, and Congress will find it easier to monitor, and through the appropriations process to control the court.¹¹

Although evaluating an institution on the basis of impressions and appearances is subject to dangerous distortion, within the realm of adjudication, the appearance of justice remains a critical factor. It thus remains true that even if no solid empirical case can be assembled to buttress the hypothesis that federal judges are more competent and independent than state court judges, many observers would agree with Neuborne's bald assertion (which notably lacks such buttressing) of "the myth of parity"—whether or not it can be proven.¹² The three sectors of the administrative judiciary suffer from similar perceptions as evidenced in the foregoing discussion that they are inferior bureaucratic automatons selected through either an unduly complicated and accordingly inscrutable labyrinth or an unrelievedly political process.¹³

Even advocates of the administrative judiciary, however, acknowledge some contradictions in the chimerical concept of judicial independence as applied to the administrative judiciary. "In a real sense, the judge in the administrative process is the judge and jury, and in some nonadver-sary proceedings such as social security, the advocate for the claimant and at the same time the defense attorney for the government."¹⁴ Another view, from a former Attorney General, Solicitor General, and Supreme Court Justice is that ALJs and AJs "have become a veritable fourth branch of the Government, which has deranged our three-branch legal theories much as the concept of a fourth dimension unsettles our three-dimensional thinking.''¹⁵

Different means of providing both improved stature and more clearly defined judicial independence for these judges have been proposed. Superficially, of course, from earlier, somewhat ungrandiose titles of hearing examiner or trial examiner, these officers have graduated to being administrative law judges or, in one suggested—but, as yet, unadopted—reform, would become United States Judges of the Executive Department.¹⁶ More significantly and most recently, a bill to establish a corps of ALJs independent of the agencies served, versions of which had been proposed for many years, was passed in late 1993 by the Senate.¹⁷ This proposal was the subject of bitter conflict between the ALJs, who favored its adoption, and the Administrative Conference of the United States, which opposed the measure.¹⁸

Ultimately, therefore, the judicial independence of ALJs arguably arises from: (1) the way they are placed in the bureaucratic structure and (2) the means by which these judges are selected. By examining how the administrative judicial process has evolved in these two respects in two very different structures—the Tax Court and the Social Security Administration—we explore the adequacy of the existing ways and means to determine whether two potential reforms are well-conceived to respond to the perceived need: (1) establishing the corps of ALJs and (2) drastically revamping the selection process to resemble the process employed to select Article III judges. If our analysis points more in the direction followed by the Tax Court, we are hardly alone on that course: in 1991 the Supreme Court ruled...