The federal judiciary has an ethics-enforcement problem of its own making, highlighted by recent reports that 131 judges presided over 685 cases in an eight-year period, despite being disqualified as a matter of law because of financial conflicts of interest. In response, and not for the first time, U.S. Supreme Court Chief Justice John Roberts pledged in an annual report to bolster ethics compliance in the federal courts, while defensively arguing that the problem is not as bad as news reports suggest.
In one respect, Roberts may be right. Some ethics violations are major, others are minor, and while adherence by judges to a code of ethics is essential for public confidence in the courts, transgressors should be punished commensurate with the degree of their misconduct. Yet the chief justice’s proposed solution — better education and training — is at best a partial remedy. No set of mandatory rules and no number of required webinars could compensate for a rigorous, independent enforcement mechanism that holds the judicial branch accountable for violations. For ethics awareness and adherence to be constant, the certainty of discipline for noncompliance must be real.
The federal court system does not have, but most certainly needs, an inspector general, modeled on judicial ethics-enforcement entities that exist in all 50 states. The failure of the judicial branch to establish such an office invites suspicion that talk of ethics reform is insincere. It also may lead to intervention by the executive and legislative branches, where proposals for judicial ethics reform have circulated.
There may be no greater principle in American constitutional governance than protecting the independence of judges to “call it as they see it” based on the facts and the law, without outside influence. Faith in the integrity of the bench is what keeps people resorting to the courts, rather than the streets, to resolve their disputes. Yet judicial independence does not mean freedom from accountability — which is especially important given that federal judges serve for life.
Indeed, the twin concepts of independence and accountability have coexisted and complemented each other on the state level for over half a century. Beginning with California in 1960, all states adopted systems for receiving and investigating complaints against judges and, where appropriate, publicly reprimanding or removing them from office. In New York, for example, a full-time professional staff uniformly processes and investigates complaints and reports to an 11-member commission of judges, lawyers and non-lawyers. Since 1978, more than 900 New York judges have been publicly disciplined, including 285 who were removed or resigned in lieu of removal.
Just as significantly, more than 50,000 complaints have been examined and dismissed as unfounded, with a written explanation to each grievant. A user-friendly website guides complainants on where and how to file complaints, and all disciplines are online and easy to find, with sortable text, to educate judges on what to avoid and to reassure the public that wrongdoing has consequences. There are charts and statistics to demonstrate the commission’s record at a glance, and in-depth reports of its annual activities dating to its inception more than 40 years ago.
In contrast, the current system of dealing with complaints against federal judges is anything but uniform or transparent. While there is a code of judicial conduct — binding on all 900 judges or so in the federal system except, tellingly, the nine who serve on the Supreme Court — there is no central office or professional ethics 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 U.S. court system.
Indeed, the central Administrative Office of the U.S. Courts is explicitly instructed “not [to] accept or respond to judicial conduct or disability complaints.” When a complaint does find its way to the “appropriate court office,” it may be dismissed by the chief judge of the circuit, with or without inquiry, with no assurance that complaints against federal judges in one part of the country would be handled in the same (let alone comprehensive) manner as those in another. It should come as no surprise that a system in which judges police themselves would be tepid, or that cynicism would be stoked when one of the few reprimands issued in the past 10 years was to a judge whose offense was criticizing Roberts.
Creation of an independent, permanent judicial inspector general, who could not be fired except for cause and whose formal disciplinary proceedings would be open, would reassure both the public and the judiciary that ethical wrongdoing was redressed professionally and unfounded allegations were dismissed. Where appropriate, the inspector general would recommend public reprimand to the applicable U.S. Court of Appeals for censurable misbehavior, and impeachment to Congress for egregious, removable misconduct.
The judiciary’s failure to institute a meaningful system of oversight opens the door for Congress and the president to do it for them. Far better for the judicial branch to fix its own ethics enforcement problem and live up to its self-proclaimed obligation to uphold public confidence in the integrity of the judiciary.
Robert H. Tembeckjian is the chief judicial ethics officer with the New York State Commission on Judicial Conduct. He is on the board of directors of the Association of Judicial Disciplinary Counsel.