The federal courts have an ethics enforcement problem.
In an age when the integrity of the judiciary, not to mention other institutions of government and society, is repeatedly subjected to executive branch attack, the failure of the federal bench to effectively oversee its own ethics administration only encourages those who would purposely erode the delicate balance of our system of checks and balances.
Recent congressional hearings, prompted by reports of inappropriate sexual behavior by a prominent federal appellate judge and other alleged wrongdoing, illustrated the ineffectiveness inherent in a system where the judiciary polices itself. Perhaps these hearings, and the increased attention focused on workplace behavior by court reform advocates and “me too” activists, will inspire changes to the way federal judges are disciplined for committing ethical misconduct. The current system, which is diffused throughout the country and shrouded in mystery, rarely reprimands anyone and inspires precious little public confidence.
Why is public confidence important? Because faith in judicial probity and fairness is what brings people to the courts rather than the streets to resolve disputes and defend our liberties. The judiciary may be the most subtle and least understood of the three branches, but its independence, integrity and impartiality are at the heart of what George Washington identified as the “due administration of justice” that serves as the “firmest pillar of good government.” Yet particularly because they serve for life, federal judges must be accountable as well as independent for the people to have faith in the courts. No one, not even a judge, is above the law or a universally accepted standard of ethical behavior.
While there is a promulgated code of conduct for federal judges, of whom there are approximately 900, there is no central office or dedicated professional staff to enforce it. Simply figuring out where to file a complaint requires finding the “appropriate court office” among 13 judicial circuits around the country and navigating “any applicable local rules,” according to the website for the US court system. Once a complaint is received, it may be dismissed by the chief judge of the circuit, with or without inquiry.
Federal Judicial Discipline Is Rare
It is exceedingly rare for a federal judge to be disciplined. A recent CNN survey showed that of 1,303 complaints filed in 2016, only four were investigated, and in the past decade, fewer than one judge per year have been disciplined. (Comparatively, last year New York disciplined 16, Texas 13, and all states combined 114.) In the history of our republic, only 15 federal judges have been impeached. Of those, eight were convicted, three resigned before verdict and four were acquitted. Two, who had been convicted of crimes, sat in jail drawing handsome salaries until removed, because they refused to resign.
One might conclude from such low numbers either that the federal bench is composed of the ethically infallible or that the disciplinary system is woefully inadequate, if not resolutely self-protective. Indeed, a committee chaired by Supreme Court Justice Stephen Breyer commented in a 2006 report that a system of judges judging other judges is at risk of undue favoritism.
This desultory narrative could be improved by the creation of an independent judicial monitor to collect complaints, investigate those with merit, initiate proceedings before a disciplinary panel designated by the chief justice where warranted for lesser offenses, or recommend impeachment to the House of Representatives for egregious misbehavior. Congress and the courts would need look no further than the individual states for a responsible and effective model.
Starting with California in 1960, every state in the Union has created an independent ethics-enforcement entity to analyze and, where appropriate, act on complaints of judicial misconduct. Typically, a board of judges, lawyers and non-lawyers oversees the process and the work of a chief enforcement officer, as in New York. While procedures vary from state to state, the critical characteristic of these enforcement offices is that they are functionally independent of, not beholden to, the judiciary they oversee. Their ability to initiate proceedings, whether in the courts or special tribunals, is fundamental to public confidence in the integrity not only of the disciplinary process but the judiciary itself.
An oft-cited concern about replicating the state ethics-enforcement model for the federal bench is that such a system might be unconstitutional, because the only way to remove a federal judge from office is impeachment by the House of Representatives and conviction upon trial in the Senate. But removal from office is not the only form of discipline, and in any event, the role of an independent judicial monitor would be to investigate, recommend or prosecute, not impose the discipline.
Indeed, the U.S. Circuit Courts already have authority to censure the judges in their districts, so the issue of whether a federal judge may be disciplined by an entity other than Congress has already been decided. The problem is getting to that point, when warranted. It rarely happens now, whether due to an absence of will or ineffective means. An independent federal judicial ethics monitor would not violate the Constitution by recommending that the judiciary censure one of its own for demonstrated misbehavior, or by reporting impeachable offenses to Congress.
Another responsible option is the establishment of a more traditional inspector general, as exist in most federal agencies. Since 2006, Senator Chuck Grassley, chair of the Senate Judiciary Committee, has been proposing legislation to create an “Inspector General for the Judicial Branch,” to be appointed by the chief justice on consultation with congressional leaders of both parties. The inspector general would, among other things, investigate possible misconduct by judges, as well as conduct audits and pursue inquiries as to non-judicial employees to prevent and detect waste, fraud and abuse. It would report to the chief justice and to the Congress on matters that may require action by either, which could result in the reprimand of a judge by the courts or the impeachment and removal of a judge by the House and Senate.
Experience of the NYS Commission on Judicial Conduct
Significantly, the experience of state judicial disciplinary entities over six decades has demonstrated that the judiciary need not fear an erosion of its independence at the hands of an ethics enforcement monitor. Indeed, vigorous ethics oversight not only heightens faith in the courts, it protects judicial independence, among other things by absorbing, deflecting or defusing criticism that would otherwise be directed at judges. In New York, for example, where roughly 55,000 complaints have been considered since 1978, a relatively small number – approximately 800 (1.5%) – have resulted in public discipline. In other words, 98.5% of the time, the New York State Commission on Judicial Conduct tells a complainant that, on careful consideration, there was no ethical wrongdoing, thus respectfully informing the individual and even generating good will while protecting the judges’ freedom and responsibility to call them as they see them.
In a cynical and dizzying political era, our federal judiciary should demonstrate how to accept responsibility and promote accountability in a political world whose actors often try to avoid both. Its system of judicial ethics enforcement must now show, as its state government counterparts have long demonstrated, that officers of at least one branch of government are held to the highest standards of conduct, with measurable and measured consequences when, on occasion, they fail to meet those standards. Doing so would considerably enhance public confidence in what always must remain the “firmest pillar” of our constitutional democracy.
Robert H. Tembeckjian is Administrator and Counsel to the New York State Commission on Judicial Conduct. He is a graduate of Syracuse University, the Fordham University School of Law and Harvard University’s Kennedy School of Government, where he earned a Masters in Public Administration.