An Unfinished Dialogue: Congress, the Judiciary, and the Rules for Federal Judicial Misconduct Proceedings

Abstract

Federal judges can be impeached and removed from office for “high crimes and misdemeanors,” but what can be done to investigate and remedy less serious misconduct? Congress gave its answer 40 years ago when it passed the Judicial Conduct and Disability Act of 1980. The Act emerged from a series of complex interactions between Congress and the judiciary that could hardly be replicated today. Initially there was strong support, particularly in the Senate, for a centralized, “strictly adjudicatory” system, including a provision for removal of judges without impeachment. Over the course of several years, however, the judiciary persuaded Congress to build instead on the decentralized, “administrative” approach that the federal judicial circuits were already using. The key actors in the system would be the circuit chief judges and the circuit councils.

When the 1980 Act was passed, Congressional leaders emphasized the need for “continuing dialog between the legislative and judicial branches, and vigorous oversight by Congress.” The ensuing decades have brought both dialogue and oversight. Of particular importance, in 2006, the chairman of the House Judiciary Committee scolded the judiciary for what he viewed as lax enforcement of the Act. The judiciary responded in 2008 by promulgating the first set of nationally binding rules for misconduct proceedings. Modest revisions were made to the Rules in 2015 and again in 2019; in both instances, expressions of concern from Congress played a role.

The 2008 Rules reflected some policy changes from the non-binding “Illustrative Rules” that preceded them, and the two sets of revisions implemented further policy changes (sometimes restoring the pre-2008 policy). But rarely do the commentaries explain or even acknowledge the revisions. The treatment of revisions exemplifies a broader problem: the reluctance of the Judicial Conference to acknowledge that some of the Rules reflect choices between competing values on matters where reasonable people could reach different conclusions.

This article examines some of the major policy issues raised by the Rules, particularly against the background of skepticism about the ability and willingness of judges to police misconduct within their own ranks. Part I traces the evolution of the current system for addressing judicial misconduct, with emphasis on the interplay of congressional and judicial action. Part II provides a brief outline of the system’s operation today. The article then examines three aspects of the system: transparency and disclosure, with a particular focus on “high-visibility” cases (Part III); disqualification of judges (Part IV); and review of orders issued by chief judges and judicial councils (Part V). A common thread is that in each of these areas the judiciary has promulgated rules that reflect sound policy but are in conflict or tension with statutory language. Moreover, these elements are more than procedural; they determine who makes the decisions and how much information the public receives. Part VI addresses other issues relating to the misconduct system and suggests some additional steps that the judiciary can take to increase the likelihood that misconduct or disability will be identified and dealt with before further injury to court operations or public perceptions occurs.

The article concludes with reflections on the interplay between Congress and the judiciary, past and future. It predicts that the dialogue will continue, and that the judiciary will seek to preserve its independence by responding to concerns about accountability, particularly when the call for action comes from influential members of Congress.

Keywords: Federal Judicial Misconduct Statutes, Breyer Committee Report, Judicial Conduct, Judicial Misconduct, Federal Judges, Judicial Ethics, National Commission on Judicial Discipline and Removal, Rulemaking, Reform, Judicial System, Federal Courts, Judicial Discipline