In Judge Ross Case, Council Balances on Constitutional Tightrope

Federal judges are a privileged group. The Constitution itself protects their independence with two promises: They serve during their “good behavior,” which almost always means for life and their salaries can’t be diminished.

But what happens if a judge engages in serious misconduct? The only remedy mentioned in the Constitution is that of impeachment, but it’s notoriously difficult to use. Over all of our history, only eight judges have been removed from office upon conviction on articles of impeachment.

Unfortunately, problems that call for a solution short of impeachment do occur. Congress’s and the judiciary’s response to that reality is the Judicial Conduct and Disability Act of 1980. This statute is designed to create a process that permits meaningful discipline of a judge who has committed various types of misconduct, ranging from ethical violations to unlawful harassment to crimes. It also covers physical and mental impairments that render the judge unable to serve.

Recently, the US Court of Appeals for the Eleventh Circuit had to put the statute to work to address serious allegations of misconduct on the part of one of its district court judges, Eleanor Ross of the US District Court for the Northern District of Georgia. 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. Because this behavior was not, as far as the record shows, related to any case, the ordinary appellate process wasn’t an available remedy.

After reliable information about the situation came to the attention of the chief judge of the circuit, a committee conducted a thorough investigation and recommended that Judge Ross be disciplined through a private reprimand. In addition, Ross had to agree that she would never become the chief judge of her district and to apologize to those who had been exposed to her misbehavior.

Because Ross ultimately confessed everything and expressed what the committee regarded as genuine remorse, the Eleventh Circuit Council (the governing body for all federal courts in Alabama, Florida, and Georgia) agreed with this sanction. Its decision was affirmed by the Judicial Conduct and Disability Committee of the Judicial Conference of the US, the governing body for the federal judiciary. The JC&D Committee, as it’s called, has broad power to implement the Conduct Act, from exoneration up to referral to the House of Representatives for consideration of impeachment.

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.

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. 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.

The system created by the Conduct Act works well in practice. Without it, the judiciary would have far less effective ways to ensure that judges are not above the law, and that they are living up to the standards rightly expected of them.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Judge Diane Wood is formerly of the US Court of Appeals for the Seventh Circuit and a member of Keep Our Republic’s Article III Coalition.

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