Document Type

Response or Comment

Publication Date

10-30-2018

Publication Title

Hearing before the Judicial Conference of the United States Committee on Judicial Conduct and Disability and Committee on Codes of Conduct

Abstract

In December 2017, the Director of the Administrative Office of the United States Courts, responding to a request from Chief Justice Roberts, formed a Working Group to recommend measures “to ensure an exemplary workplace for every judge and every court employee.” The Working Group issued its report in June 2018. On October 30, 2018, two committees of the Judicial Conference of the United States, the administrative policy-making body of the federal judiciary, held a hearing on proposed amendments to the Rules for Judicial-Conduct and Judicial-Disability Proceedings and the Code of Conduct for United States Judges. Both sets of proposed amendments responded in large part to Working Group’s recommendations.

I submitted a statement in advance of the hearing, also available on SSRN, and testified orally. This supplementary statement incorporates some of my remarks at the hearing; it also comments on some points made by other witnesses.

The Working Group wrote: “The most significant challenge for accountability …arises from the reluctance of victims to report misconduct.” The proposed amendments to the Code and the Rules address this problem primarily by imposing a mandatory requirement upon judges to report misconduct by other judges – a requirement that would be enforced through the disciplinary mechanism of the 1980 Act. At the October 30 hearing, some witnesses argued that the reporting requirement should be made even stricter.

In my view, this approach is misguided. Second- or third-hand information can never be as efficient in promoting accountability as first-hand information. Moreover, the rigid reporting requirements in the September 2018 Draft, made enforceable though proceedings under the 1980 Act, could turn the Judiciary into a workplace of informers. I believe that the “significant challenge” identified by the Working Group is best addressed by removing barriers to reporting by the individuals directly affected. In this supplementary statement, I offer some detailed proposals along those lines.

The statement also addresses other issues raised by the proposed amendments, including transparency and disclosure, disqualification of judges in misconduct proceedings, the scope of the Rules’ coverage, and the relationship between the Code of Conduct and the Rules for Judicial-Conduct and Judicial-Disability Proceedings.

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