Where the Judiciary Has Fallen Short and How We Can Build It Better
By Tyler Cooper, FTC senior researcher
Who judges the judges? Currently, it’s often other judges—and even then, it’s easy for a misbehaving judge to escape scrutiny and adverse professional sanctions. That is the topic of a recent essay by Notre Dame Law Prof. Veronica Root Martinez in the Northwestern Law Review.
We expect our judges to model character of the highest order, but we often find that the individuals of that office suffer from the same deficiencies we find in members of any other profession. Despite these expectations, and their positions being ones of public trust, judges can escape investigations into professional misconduct simply by resigning from their office—often then still receiving a full pension.
The argument for the status quo redounds to a notion that the highest priority should be removing from office a judge known to have engaged in misconduct. Therefore, it is actually a feature, not a bug, that judges are incentivized to resign in order to avoid the public embarrassment of an investigation into their wrongdoing. Without this incentive, the argument goes, a judge will have more motivation to fight allegations of misconduct.
However, this underappreciates the damage done to the institution by being soft on misconduct.
The judiciary’s power resides in the public’s assent to its authority, and, as Prof. Martinez notes, people’s compliance with decisions is impacted by their view of the decision-maker’s legitimacy. If the public views the judiciary as harboring misbehaving judges, then it stands to reason that the decisions of the judiciary may fall into disrepute.
As the essay states, “[w]hen judges are able to circumvent investigations into their own conduct, however, it has the potential to erode the public’s view of the courts as legitimate.”
Prof. Martinez provides two proposals to address the problem. First, establish a custom of referring stymied investigations to both the relevant state bar and to Congress for further investigation. Second, permit the judicial council to continue to investigate complaints against judges even if the judge resigns.
These suggestions are eminently reasonable.
State bar associations already assume the responsibility for policing the legal industry. They have the capacity to levy harsh professional punishment that cannot even be meted out by the Judicial Conference or even the Congress—that is, they can suspend a lawyer’s license to practice in a state or even permanently disbar a lawyer. Prof. Martinez notes that this is particularly salient in considering the example of disgraced former Judge Alex Kozinski. He resigned his judgeship in 2017 when his extensive misconduct surfaced publicly and has since established his own private practice—recently even appearing in the court he formerly presided over as counsel to a party.
Considering referrals to Congress, Prof. Martinez notes that these already do occur on an ad hoc basis. She adds additionally that it’d be beneficial to move from this determination being one based on a subjective understanding of the gravity of the misconduct to one that occurs as a matter of routine procedure in cases where the judge attempts to evade scrutiny.
Finally, Prof. Martinez’s essay discusses additional considerations for oversight and ethics reform including that, currently, generous judicial pension plans are not subject to removal for professional misconduct (something we have written about before). She also adds, of the Supreme Court’s lack of tethering to any of the aforementioned oversight or ethics regulation to which the rest of the judiciary submits:
“[I]f we want to defer to an organization’s ability to self-police, which is what the Supreme Court currently does, it seems reasonable to expect the organization to adopt a set of clear and impartial expectations for itself. Without an ex ante set of expectations and standards, the legitimacy of decisions made by the Justices when there is an appearance of impropriety will always remain suspect.”
We’ll continue to work for a future where law reviews aren’t publishing essays titled “Avoiding Judicial Discipline,” but, for today, Prof. Martinez’s essay shows where the judiciary has fallen short and how we can build it better.