What Judge Wood Did Not Say About Judge Ross’s Misconduct

Bloomberg Law published an unusual Op-Ed by retired Judge Diane Wood of the Seventh Circuit. Judge Wood discusses the Judge Ross situation, but leaves much out. I think what Wood did not say is far more important than what she did say.

First, here is how Judge Wood describes the facts:

The misconduct was of a personal nature: Judge Ross was engaged in a sexual relationship with a law-enforcement officer whose department regularly appeared before that judge.

If a student at the University of Chicago offered that summary of the case, she would be failed. Judge Ross’s sexual activity was appalling, but the most severe transgression was lying to the Chief Judge of the Circuit and the Chief Judge of the District. The closest Judge Wood got to acknowledging the dishonesty was this sentence:

Because Ross ultimately confessed everything and expressed what the committee regarded as genuine remorse…

This is a very roundabout way of saying she confessed to the sex and confessed to lying.

Second, Judge Wood offers no comment about the Eleventh Circuit Judicial Council’s decision to issue a private reprimand. The most she will say is that the Judicial Conduct & Disability Committee did not err in affirming that decision.

The JC&D Committee had to decide what would most likely produce the desired result—permanent cessation of that kind of behavior. It also had to decide whether it believed that the judge’s remorse and willingness to mend her ways were genuine. Others may have decided differently, but I see nothing here that casts doubt on the genuineness or integrity of the decisions the JC&D Committee made.

Why wouldn’t the decision be genuine or have integrity? The relevant question is whether it is correct as a matter of law. But even this question is constrained, as the JC&D Committee’s review was limited to a deferential standard. Here is the entirety of the analysis:

In light of our review for errors of law, clear errors of fact, or abuse of discretion, and in deference to the Circuit Judicial Council’s consideration of the special committee’s review of the evidence, we affirm the Circuit Judicial Council’s unanimous decision concluding that the subject judge’s actions constituted judicial misconduct. The special committee conducted a thorough investigation and afforded the subject judge all the process that was due under the JC&D Act and the Rules. Accordingly, we find no error of law or abuse of discretion in the special committee’s investigatory process. And we conclude that the remedial measures ordered by the Judicial Council under 28 U.S.C. § 354(a)(2)(A) are appropriate and proportionate to the Judicial Council’s findings in relation to the seriousness of the misconduct, balanced against the subject judge’s correction of the prior false statements and subsequent candor with the special committee, the special committee’s assessment that the subject judge is unlikely to engage in similar misconduct in the future, and the subject judge’s otherwise exemplary service to the court.

The finding was affirmed based on no “abuse of discretion” or “error of law.” This is not exactly a ringing endorsement of the Eleventh Circuit’s ruling, which I’ll note had no noted dissents–the only name on the document was Chief Judge Pryor. Does Judge Wood think the Eleventh Circuit Judicial Council made the right decision in the first instance? We don’t know.

Third, Judge Wood suggested that there are limits on how judges can be reprimanded. She suggests that taking away cases from a judge amounts may be unconstitutional:

Some have argued that this system is unduly solicitous of judges who engage in behavior so obviously unbecoming a federal judge. They contend that, at a minimum, this kind of misbehavior should always be made public. But there is only so far that the Conduct Act can go before it bumps into the constitutional protections for a judge’s tenure in office.

Indeed, some think that depriving the judge of her caseload is a de facto temporary removal from office and thus beyond the power of the judiciary. Critically, however, the judge is actually not removed and continues to receive her salary.

Where has Diane Wood been on the Pauline Newman case? Has she published any op-eds criticizing Chief Judge Kimberly Moore? Why did she not join former-Judge Paul Cassell’s amicus brief in support of Judge Newman’s cert petition?

Fourth, Judge Wood makes it seem like no other punishments were possible. She doesn’t state the obvious: the reprimand should have been made public. Judge Ross could have kept her cases, but she would have faced litigants who perceive a plausible conflict of interest. That act would have been punishment by itself.

Fifth, Judge Wood reflects on her own tenure:

As chief judge of the US Court of Appeals for the Seventh Circuit for nearly seven years, I well appreciate the constitutional tight-rope that these cases present.

Chief Judge Wood helmed the Seventh Circuit during the final years of Richard Posner’s decline. I think an entire book could be written about how Judge Posner flouted the rules of judicial conduct, yet his colleagues took no actions against him. Maybe he should have been given the Pauline Newman treatment so he could spend all of his efforts on writing books. Indeed, Judge Posner’s final act before resigning was to publish a bizarre book that attacked his colleagues based on confidential information. I do not think Judge Wood was the right person to comment on failing to take adequate action against a misbehaving judge.

Finally, I mention one last point, with some hesitation. Arthur, Gabe, and I pitched our essay to Bloomberg Law. The editor promptly got back to us and wrote “I don’t think this fits into our coverage.” Apparently, Judge Wood’s non-defense of the courts does fit into the coverage. Go figure.

This entire piece feels forced. I think someone in the judicial apparatus asked a well-regarded, retired judge to defend the handiwork of the Eleventh Circuit. But she couldn’t quite do that. She said very little, and reinforced how indefensible the Eleventh Circuit’s private reprimand was. I’m not buying it. I’ve yet to talk to an actual judge who thinks the Eleventh Circuit got it right. If someone wants to defend what the Eleventh Circuit did here, they will actually have to discuss in detail.

I would hope that one of the law clerks who initially blew the whistle opts to appeal this matter to the full Judicial Conference. Chief Justice Roberts cannot simply turn this matter over like a couch cushion.

Update: A colleague wrote, “I just read Judge Wood’s op-ed again, and I realized what it reads like: the hostage statement of someone who has been kidnapped.” Yes, I agree. Also, how can Judge Wood say with certainty the subject judge was Eleanor Ross, and not even mention the reprimand was private. This situation seems like a fix.