INTRODUCTION

Federal judges, similar to kindergarteners, must face consequences when they behave badly. Currently federal judges, unlike kindergarteners, do not face any meaningful consequences for their wrongdoing. They are not put in “time out.” They do not have to sit out recess. They are allowed to move on to the next case with the same authoritative arrogance which resulted in their initial bad behavior.

Failure to Recuse: One Example of Bad Behavior by Federal Judges

Any justice, judge or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. 28 U.S.C. § 455(a). As the U.S. Supreme Court has explained, that provision requires that the judicial conduct at issue: “be evaluated on an objective basis, so that what matters is not the reality of bias or prejudice but its appearance. Quite simply and quite universally, recusal was required whenever ‘impartiality might reasonably be questioned.’” Liteky v. United States, 510 U.S. 540, 548 (1994) (Scalia, J.). Thus, it is the appearance of partiality – and not actual bias – that is the test for recusal under Section 455(a): “In applying § 455(a), the judge’s actual state of mind, purity of heart, incorruptibility, or lack of partiality are not the issue.” United States v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993).

Even if the decision to recuse in a particular case were a close one, the statute’s purpose of promoting public confidence in the judiciary requires that judges must resolve any doubts in favor of recusal. See, e.g., Republic of Panama v. American Tobacco Co., 217 F.3d 343, 347 (5th Cir. 2000)(“[I]f the question of whether § 455(a) requires disqualification is a close one the balance tips in favor of recusal.”); In re United States, 158 F.3d 26, 30 (1st Cir. 1998), Nichols v. Alley, 71 F.3d 347, 352 (10th Cir. 1995); United States v. Dandy, 998 F.2d 1344, 1349 (6th Cir. 1993)(“Where the question is close, the judge must recuse himself.”); United States v. Kelly, 888 F.2d 732, 744 (11th Cir. 1989) (Section 455(a) “requires judges to resolve any doubts they may have in favor of disqualification.”).

Congress established the “appearance of impartiality” standard “to promote public confidence in the integrity of the judicial process.” Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 860 (1988). The legislative history of § 455(a) is clear: “This general standard is designed to promote public confidence in the impartiality of the judicial process by saying, in effect, if there is a reasonable factual basis for doubting the judge’s impartiality, he should disqualify himself and let another judge preside over the case.” H. Rep. No. 93-1453, p. 5 (1974), U.S. Code Cong. & Admin. News 1974, p. 6355.

In the words of the Seventh Circuit, “Once a judge whose impartiality toward a particular case may reasonably be questioned presides over that case, the damage to the integrity of the system is done.” Durhan v. Neopolitan, 875 F.2d 91, 97 (1989).

There is a heightened need to preserve the appearance of impartiality in bench trials. The question has sometimes arisen as to whether the standard for disqualification differs in a bench trial where the judge’s role is even more pivotal than in a jury trial. In Alexander v. Primerica Holdings, Inc., 10 F.3d 155 (3d Cir. 1993), the court of appeals said: “We cannot overlook the fact that this is a non-jury case, and that [the judge] will be deciding each and every substantive issue at trial….When the judge is the actual trier of fact, the need to preserve the appearance of impartiality is especially pronounced.”

The Wall Street Journal Investigation

A recent investigation by The Wall Street Journal (WSJ) found one hundred and thirty-one federal judges refused to recuse themselves from 685 court cases involving companies in which they or their family members owned stock.

In those cases, approximately two-thirds of the rulings were in favor of the financial interests of the judge. The jurists identified by the WSJ report were appointed by both Democratic and Republican presidents.

The Impeachment of Judge G. Thomas Porteous, Jr.

Judge G. Thomas Porteous, Jr., judge of the U.S. District Court for the Eastern District of Louisiana, was impeached for high crimes and misdemeanors. H.Res.1031 – 111th Congress (2009-2010) sets forth the articles of impeachment. It states, in pertinent part, “Declares that, while a U.S. district court judge, G. Thomas Porteous, engaged in a pattern of conduct incompatible with the trust and confidence placed in him as a judge;” and “Declares that Judge Porteous denied a motion to recuse himself from a case where one of the parties was represented by a corrupt law firm with which he had a financial relationship.”

One Hundred and Thirty-Two Federal Judges Can’t be Wrong

These are not cerebrally challenged jurists. They fully understand the meaning of the word “shall” in 28 U.S.C. § 455(a). These 132 federal judges did not recuse themselves because they believed they would not be challenged and would probably not face any meaningful consequences if they were challenged. Regrettably, they were correct.

Federal judges may be held accountable for their bad behavior via the Department of Justice (DOJ), the Circuit Court of Appeals, and the U.S. House of Representatives.

DOJ

Even though aspects of a federal judge’s conduct may appear to support a criminal prosecution, the DOJ faces numerous practical obstacles that would necessarily impact its considerations as to whether prosecution was in order for certain categories of conduct. One problem in particular involves the statute of limitations – a potentially insurmountable hurdle in a criminal prosecution, but not a bar to impeachment. As explained in a previous article, some of Judge Porteous’s most corrupt conduct was time-barred by the statute of limitations.

Circuit Court of Appeals

Any person alleging that a judge has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts may file with the clerk of the court of appeals for the circuit a written complaint containing a brief statement of the facts constituting such conduct. The complaint is filed pursuant to the Judicial Conduct and Disability Act, 28 U.S.C. § 351-364 and may further allege that the subject judge has violated the Canons of the Code of Conduct for United States Judges.

If some or all of a complaint is not dismissed or concluded, the chief judge must promptly appoint a special committee to investigate the complaint or any relevant portion of it and to make recommendations to the judicial council. After the judicial council considers a special committee’s report, it will generally issue an order.

The order may sanction the judge by:

(a) censuring or reprimanding the judge, either by private communication or by public announcement;

(b) ordering that no new cases be assigned to the judge for a limited, fixed period;

(c) in the case of a district judge, requesting the judge to retire voluntarily; or

(d) recommending corrective action.

Federal judges appointed under Article III of the U.S. Constitution (e.g., circuit and district judges) hold office for life pending good behavior. Only Congress can remove an Article III judge from office. If the judicial council finds an Article III judge’s conduct may warrant impeachment, it must refer that finding to the Judicial Conference. On referral, the Judicial Conference will determine whether to certify the matter to Congress, which will then decide whether to initiate impeachment proceedings. It is important to note the judicial council very rarely finds that an Article III judge’s conduct warrants impeachment.

U.S. House of Representatives

Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the Party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.

The Walter Nixon Impeachment Report concluded:

“Thus, from an historical perspective the question of what conduct by a Federal judge constitutes an impeachable offense has evolved to the position where the focus is now on public confidence in the integrity and impartiality of the judiciary. When a judge's conduct calls into questions his or her integrity or impartiality, Congress must consider whether impeachment and removal of the judge from office is necessary to protect the integrity of the judicial branch and uphold the public trust.” (H.R. Rep. No. 101-36, Impeachment of Walter L. Nixon, Jr., Report of the Committee on the Judiciary to Accompany H. Res. 87, 101st Cong., 1st Sess. (1989) [hereinafter “Walter Nixon Impeachment Report”] at 5 (1989)).

Since 1803, the House of Representatives has impeached only 15 federal judges. This equates to impeaching one federal judge approximately every 15 years. If the American people are to hold their federal judges accountable, this ratio should be reversed. If 15 judges were impeached every year, federal judges would think twice about their behavior. There are a total of 865 authorized judgeships in the U.S. Supreme Court, the U.S. courts of appeal, and the U.S. district courts. Impeaching 15 federal judges per year would result in the impeachment of merely 1.7% of federal judges per year.

Accountability requires consequences. Federal judges will never be held accountable until they face meaningful consequences (e.g., impeachment) for their wrongdoing.