Prof. Michael Broyde (Emory) on “When Judges Stop Behaving Well”

I’m delighted to pass along this item from Prof. Broyde, who teaches legal ethics at Emory and who has written about judicial ethics in particular:

A federal judge does not lose life tenure merely by becoming embarrassing. Nor should Congress threaten judges because it dislikes their opinions, their interpretive methods, or their politics. Judicial independence is one of the central achievements of the Constitution.

But independence is not impunity. The Constitution does not say that federal judges hold office for life no matter what they do. It says they “shall hold their Offices during good Behaviour.” That phrase is not an ornament. It is the condition attached to the extraordinary protection of life tenure.

The recent Eleventh Circuit judicial misconduct matter shows why that condition still matters. According to the judicial misconduct materials, an unnamed district judge engaged in an extramarital relationship with a high-ranking law-enforcement officer, including sexual activity in chambers during business hours and within hearing distance of court staff.

The judge initially denied the relationship to judicial investigators, later admitted it, created a deeply uncomfortable workplace, and generated serious concerns about conflicts of interest and vulnerability to blackmail. The judge also attended a partisan political event.

The sanction was a private reprimand, apology letters to former law clerks, and commitments not to seek certain leadership roles. News organizations have identified the unnamed judge as U.S. District Court Judge Eleanor Ross of the Northern District of Georgia. Resolutions of impeachment was introduced by two Georgia Members of Congress.

That identification, and the resulting calls for impeachment, should not obscure the underlying constitutional issue. Some commentators have treated the case mainly as a question of criminal law: whether the judge’s initial denials constituted a federal false-statement offense, or whether the misconduct fits neatly within the familiar impeachment phrase “high Crimes and Misdemeanors.” Those questions are not trivial. But they are too narrow.

The deeper question is whether a judge who uses chambers this way has continued to satisfy the constitutional condition on which judicial tenure rests for good behavior. I do not think so.

Article II and Article III speak in different but related registers. Article II Section 4 identifies the grounds on which civil officers may be impeached and removed: “Treason, Bribery, or other high Crimes and Misdemeanors.” Article III Section 1 explains why federal judges receive their special tenure protection: they serve during “good Behaviour.” Article II supplies the constitutional grounds for impeachment and removal; Article I supplies the House-and-Senate mechanism. Article III supplies the tenure condition: good behavior. Federal judges are not simply employees who may be disciplined only when they commit crimes. They occupy constitutional offices premised on public trust, impartiality, restraint, and self-command.

To say this is not to create a shortcut around impeachment. Congress may not evade the Constitution’s impeachment process by inventing an administrative process to remove judges outside the Constitution. Removal still requires impeachment by the House and conviction by the Senate. But it does not follow that Congress may act only when a judge has committed an indictable offense. The constitutional question for judges includes fitness for the judicial office, and “good Behaviour” has to mean more than “not yet convicted of a crime.”

Nor is the point prudery. Judges have private lives, and not every personal failing is a constitutional matter. The problem here is the connection between private misconduct and public office. Judicial chambers are not private bedrooms. Law clerks and court staff are not unwilling witnesses to a judge’s private life. Chambers are part of the federal workplace and part of the machinery of justice. The people who work there are entitled to professional boundaries, dignity, and a judge who does not make the workplace serve the judge’s personal desires.

That is why candor alone would not cure the problem. Imagine a judge announcing that chambers would be unavailable during lunch because the judge was conducting an extramarital affair there with a police commander. The announcement would be honest and would avoid any problem of false statement. It would also be intolerable. The misconduct is not merely the lie to the Chief Judges. It is the use of judicial space, judicial time, and judicial authority in a way incompatible with the office.

The conflict concern is equally serious. A secret relationship between a federal judge and a senior law-enforcement officer in the same community is not a harmless private indiscretion. Federal courts hear criminal cases, civil-rights actions, suppression motions, warrant challenges, police-witness credibility questions, and cases involving government agencies. The judicial materials may not establish that the judge actually ruled in a case involving that officer or that officer’s department. But the public should not have to rely on luck to preserve the appearance of impartial justice. A judge has an obligation to avoid not only actual conflicts, but also circumstances that reasonably call the court’s neutrality into question.

The judiciary’s response exposes the limits of self-policing and as Gabe Roth of Fix the Court observed is “underwhelming” and “looks more like judges protecting their own than serious remediation or punishment.” A private reprimand may be appropriate for ordinary misconduct. It is inadequate for conduct that used chambers for sexual activity, compromised staff, misled a misconduct inquiry, created conflict-of-interest risks, and damaged public confidence in the courts—conduct that is clearly not “good behavior”. The judiciary can admonish, discipline, and—as it sought to do in this case—conceal the violator’s identity. But only Congress can decide whether misconduct this grave warrants removal from a life-tenured office.

That congressional role must be exercised with great caution. The failed impeachment of Justice Samuel Chase remains an essential warning. Judges must not face removal because legislators dislike their rulings. “good Behaviour” cannot become a partisan trapdoor through which Congress threatens judicial independence whenever the political branches are angry at the courts.

But this case is not Chase. It is not about a controversial opinion, statutory interpretation, constitutional methodology, or ideological disagreement. It is about personal misconduct in chambers, treatment of court staff, dishonesty in a judicial misconduct inquiry, attendance at a partisan event, and the misuse of the judicial workplace. If Congress cannot even consider impeachment in a case like this, then the phrase “good Behaviour” has been drained of most of its practical meaning.

The House should therefore do what the judiciary has not done publicly. The House should open an expedited impeachment inquiry, first confirming whether the judge described in the misconduct orders is Judge Ross, and then deciding whether articles of impeachment are warranted. No facts need to determined other than confirming the identity of the judge. It need not reinvestigate the facts, since they were already determined in a Judicial Council order. Articles of impeachment should be framed carefully, not sensationally and they should focus on the good behavior standard. The conduct recited in this case certainly seems to be grounds for impeachment in the House.

The Senate, which must hold a trial, should then decide whether the conduct justifies conviction and removal. That decision should be sober, institutional, and constitutional. It should not be a partisan spectacle. It should ask whether life tenure can survive as a public trust if the good-behavior condition is treated as a dead letter.

Life tenure is one of the Constitution’s greatest protections for the rule of law. It enables judges to decide cases without fearing presidents, senators, mobs, donors, or editorial pages. But the price of that independence is conduct worthy of confidence. A judicial robe is not a nightgown and chambers are not bedrooms. And “good Behaviour” is not an empty phrase.

When a federal judge stops behaving well in the performance and setting of judicial office, Congress should be willing to say so.