I invited Professor Arthur Hellman, an emeritus professor at the University of Pittsburgh, to write a guest post on what should come next for Judge Ross. Professor Hellman is a leading expert on judicial ethics, and has testified before Congress on this important topic before.
District Judge Eleanor Ross of the Northern District of Georgia has now been "outed" as the "Subject Judge" of the judicial misconduct order issued by the Committee on Judicial Conduct and Disability of the Judicial Conference of the United States (JC&D Committee) on May 22. The Committee agreed with the Judicial Council of the Eleventh Circuit that three actions by Judge Ross constituted misconduct under the Judicial Conduct and Disability Act of 1980 (JCDA). The Committee also agreed that the remedial measures ordered by the Judicial Council, the strongest of which was a private reprimand, were appropriate.
These remedial measures have understandably been sharply criticized as woefully inadequate, given the seriousness of two of the findings of misconduct. It is still possible that the Judicial Council or the JC&D Committee could reverse course, but on the assumption that that will not happen, I agree with Josh Blackman that the next step is consideration of the constitutional process of impeachment.
As it happens, one of the findings of misconduct by Judge Ross corresponds closely to conduct that was one basis for impeaching District Judge Samuel B. Kent in 2009. Specifically, the JC&D Committee (p. 5) summarized the third misconduct finding as follows: Judge Ross "made numerous, material false statements to the Chief Circuit Judge and the Chief District Judge when initially responding to the allegations." Compare that with the statement on the House floor by Rep. Jim Sensenbrenner, a member of the House Judiciary Task Force on Judicial Impeachment, explaining Article III of the articles of impeachment against Judge Kent (p. H7061): "Clearly, everyone would agree that a judge who lies to a judicial body investigating his conduct … is not fit to remain on the bench." The House unanimously agreed to Article III as well as three other articles of impeachment. Judge Kent resigned his judgeship and avoided a Senate trial that would have resulted in certain conviction and removal from office.
I testified as an expert witness at the hearing on the possible impeachment of Judge Kent, and my testimony was cited both in the House Report and on the House floor. I write here to explain why the Kent impeachment proceeding provides a solid foundation for introducing articles of impeachment against Judge Ross.
Like the Ross proceeding, the Kent impeachment involved a judge who lied in the hope of covering up sordid sexual conduct. But Judge Kent's conduct was much worse – on multiple occasions, he sexually assaulted court employees and abused his power as the sole Article III judge in the Galveston courthouse. Those sexual assaults provided the basis for two of the articles of impeachment. But the House voted separately on each article, and Task Force members who explained the articles to their colleagues gave considerable attention to the false statements.
Particularly noteworthy are the opening remarks of the Chairman of the House Judiciary Committee, Rep. John Conyers. He said (p. H7055):
"The committee is recommending impeachment not merely on the fact that the judge has pleaded guilty and has been sentenced to prison; rather, it is his conduct--making false statements to his fellow judges in an official inquiry and sexually assaulting courthouse personnel--that the committee has independently determined to constitute high crimes and misdemeanors warranting his impeachment and removal from office."
The Chairman of the Task Force, Rep. Adam Schiff, summarized my testimony (p. H7056) as "conclud[ing] that making false statements to fellow judges, as well as abusing his power as a Federal judge to sexually assault women, were independent grounds that would justify and warrant Judge Kent's impeachment and removal from office."
Rep. Sensenbrenner summarized my conclusions in similar language (p. 7060) before making the statement I have already quoted.
Members of the House also had the report of the Judiciary Committee on the impeachment articles. That report (p. 19) quoted my hearing testimony: "False testimony by a federal judge in a judicial misconduct proceeding falls easily within the realm of 'high crimes and misdemeanors' that warrant impeachment."
Note that neither the floor statements nor the House Report rely on the precise context of Judge Kent's false statements, nor do they specify that the statements were made under oath (as I assume they were).
So this is one of those rare instances in which the Judiciary has found that a sitting judge has engaged in conduct that is almost identical to conduct that the full House "has independently determined to constitute high crimes and misdemeanors warranting [a judge's] impeachment and removal from office." What should happen next? At the least, I agree with Fix the Court that the House Judiciary Committee should establish a bipartisan Task Force similar to the one that investigated the allegations against Judge Kent. The Task Force would conduct an inquiry into whether Judge Ross should be impeached. It would not consider any other matters.
I have not said anything here about the conduct that was the subject of Judge Ross's false statements. Although not an appalling abuse of power like Judge Kent's conduct, the characterization in the Eleventh Circuit Special Committee report (p. 16) might support a separate article of impeachment. But that is an issue for another blog post.
