Putting the Mice in Charge of the Cheese: Why Federal Judges Cannot Always Be Trusted to Police Themselves and What Congress Can Do About it

Abstract

In 1980, Congress passed the Judicial Council and Disability Act of 1980, which vested judges with the exclusive authority to discipline poor behavior within their ranks. A commission created in 2004 to study the Act's enforcement concluded in 2006 that judges mishandle high-visibility misconduct complaints nearly thirty percent of the time, an error rate the commission deemed "far too high." This Article argues that the "far too high" error rate exists because of institutional bias. That is, judges have a tendency to let their accused colleagues off the hook out of favoritism, undue sympathy, and a desire to protect the reputation of the judiciary. To remedy the corrosive effect of institutional bias, Congress must rewrite the Act in several significant respects, and the judiciary should be more vigilant in enforcing it. The secretive disciplinary proceedings should be open and accountable to the public, and the complainant and the judge should be given equal procedural rights. Rather than privileging self-correction, the Act should promote uniformity in the meting out of discipline to ensure that the punishment fits the misconduct. Finally, out-of-circuit transfers should be encouraged to reduce the risk that those sitting in judgment are good friends and trusted colleagues of the accused.

Keywords: Judicial misconduct, judicial ethics, judicial disciplinary proceedings