Judicial Misconduct Complaint Against Judge Vaden For Columbia Boycott Referred to Seventh Circuit's Judicial Council

The Fifth and Eleventh Circuits already dismissed similar complaints, but the Chief Judge of the Court of International Trade asked the Chief Justice to refer it to another circuit, and Roberts did so.

It is all too common for critics to demand an "enforceable" ethics code against the Supreme Court justices. These charges, however, fail to recognize how the complaint system could be weaponized. For evidence of this risk, I would point to ongoing proceedings concerning Judge Stephen Vaden of the Court of International Trade.

Judge Vaden was one of thirteen judges who joined the boycott of Columbia Law School. (I interviewed Judge Matt Solomson of the Court of Federal Claims about the boycott.) Shortly after the boycott was announced, a judicial misconduct complaint was filed against Judge Vaden.

Judge Vaden was not alone. Similar complaints were filed against Judges in the Fifth Circuit, the Eleventh Circuit, and in the Court of Federal Claims. As best as I can tell, each of those complaints was dismissed within the circuit. On June 18, 2024, Chief Judge William Pryor of the Eleventh Circuit dismissed the complaint, and the Judicial Council of the Eleventh Judicial Circuit affirmed. On June 24, Chief Judge Priscilla Richman of the Fifth Circuit dismissed the complaint, and the Appellate Review Panel of the Judicial Council for the Fifth Circuit affirmed. And on October 1, 2024, Chief Judge Elaine D. Kaplan of the Court of Federal Claims dismissed the complaint.

Each of these complaints was dismissed, with detailed opinions explaining why. Yet the complaint against Judge Vaden continues. Why?

Let me take a step back and tell you what is public information, and what is not public record. The judicial misconduct process is byzantine. Generally, the proceedings are entirely confidential. Moreover, even if the subject of the complaint waives confidentiality, the proceedings will still remain confidential.

These requirements are spelled out in 28 U.S.C. § 360(a):

(a)Confidentiality of Proceedings.—Except as provided in section 355, all papers, documents, and records of proceedings related to investigations conducted under this chapter shall be confidential and shall not be disclosed by any person in any proceeding except to the extent that—
(1)the judicial council of the circuit in its discretion releases a copy of a report of a special committee under section 353(c) to the complainant whose complaint initiated the investigation by that special committee and to the judge whose conduct is the subject of the complaint;
(2)the judicial council of the circuit, the Judicial Conference of the United States, or the Senate or the House of Representatives by resolution, releases any such material which is believed necessary to an impeachment investigation or trial of a judge under article I of the Constitution; or
(3)such disclosure is authorized in writing by the judge who is the subject of the complaint and by the chief judge of the circuit, the Chief Justice, or the chairman of the standing committee established under section 331.

This rule is spelled out with more specificity in Rule 23(b)(7) of the Rules for Judicial Conduct and Judicial Disability Proceedings:

Subject Judge's Consent. If both the subject judge and the chief judge consent in writing, any materials from the files may be disclosed to any person. In any such disclosure, the chief judge may require that the identity of the complainant, or of witnesses in an investigation conducted under these Rules, not be revealed.

In short, information about the complaint can only be made public if both the subject of the complaint, and the reviewing court approves it. How many people clamoring for an "enforceable" ethics code against the Supreme Court were even aware of these statutes?

With that background, I can point you to a statement posted on the First Liberty web site (for purposes of full disclosure, I've worked with First Liberty on many cases and projects over the years):

Judge Stephen Vaden is a judge on the US Court of International Trade. He was appointed to the bench in 2020 by President Donald Trump.

On May 6, 2024, thirteen federal judges, including Judge Vaden, sent a letter to Columbia University condemning the repeated instances of antisemitism on the campus after Hamas' October 7 attack on Israel.

An inmate convicted of terrorism and vandalism offenses filed a judicial misconduct complaint against Judge Vaden for signing the letter. The misconduct complaint is currently pending before the Seventh Circuit's Judicial Council.

The Chief Judges of the Court of Federal Claims, and United States Courts of Appeals for the Fifth and Eleventh Circuits, dismissed similar complaints about the letter. Those dismissals have all been affirmed by the relevant Judicial Councils.

The inmate has no connection to Columbia University, any law school, Judge Vaden, or any case that could come before Judge Vaden.

First Liberty, along with Lisa Blatt from Williams & Connolly LLP, represent Judge Vaden.

Again, rules of confidentiality constrain what I can write here. So let's play connect the dots. How can a complaint get from the Court of International Trade to the Seventh Circuit Judicial Council? Rule 26 lays out the process:

In exceptional circumstances, a chief judge or a judicial council may ask the Chief Justice to transfer a proceeding based on a complaint identified under Rule 5 or filed under Rule 6 to the judicial council of another circuit. The request for a transfer may be made at any stage of the proceeding before a reference to the Judicial Conference under Rule 20(b)(1)(C) or 20(b)(2) or a petition for review is filed under Rule 22. Upon receiving such a request, the Chief Justice may refuse the request or select the transferee judicial council, which may then exercise the powers of a judicial council under these Rules.

So two things had to happen here. First, the Chief Judge of the Court of International Trade, Mark Barnett, determined there were "exceptional circumstances" to ask Chief Justice John Roberts to transfer the complaint to another circuit. And second, Chief Justice Roberts had to agree that such a transfer was warranted.

Now remember, similar complaints were already dismissed by three other chief judges, who saw no need to refer the case to other circuits. Why did Judge Barnett decide to transfer the case? I can't tell you. That information is confidential. And I think it is safe to say that Judge Vaden has not withheld confidentiality. The fact that he authorized his counsel to make the case public should support that conclusion. So it is the Chief Judge of the Seventh Circuit and/or Chief Justice Roberts, who is keeping this case on the down-low.

Some more information may be helpful. The Court of International Trade is an Article III court. Judges are nominated by the President, are confirmed by the Senate, and serve during "good behavior." But 28 U.S.C. § 251 mandates the political affiliation of federal judges:

The President shall appoint, by and with the advice and consent of the Senate, nine judges who shall constitute a court of record to be known as the United States Court of International Trade. Not more than five of such judges shall be from the same political party. The court is a court established under article III of the Constitution of the United States.

In general, there may not be Obama or Trump judges. But Judge Mark Barnett, by statute, was an Obama judge. And Judge Stephen Vaden, by statute, was a Trump judge. (I tend to think this statute is an unconstitutional constraint on the President's appointing power--the Senate can just withhold consent for a judge of the wrong party--but that is a matter for another day.) Chief Justice Roberts was certainly aware of this fact. And he was aware of prior dismissal orders by the Fifth and Eleventh Circuits. And, Chief Justice Roberts was under no obligation to transfer the complaint. You may recall that Roberts's rejected the transfer request from Chief Judge Srinivasan regarding Judge Griffith. Yet, Roberts let this case go forward here. Roberts could have transferred the case to the Fifth or Eleventh Circuits, which already resolved these issues. But he picked the Seventh Circuit.

What exactly are the proceedings before the Seventh Circuit? Confidential. I hope Judge Vaden is relieved of this complaint as soon as practicable. And Chief Judge Barnett of the Court of International Trade, and Chief Justice Roberts, should think very carefully of why this case is any different than the prior cases from Texas and Georgia.

You may not care very much about this dispute, or the Court of International Trade. But this Court will have jurisdiction over Trump trade-related cases, including tariffs and customs. (See 28 U.S.C. § 1581). No other court in the country can hear challenges to virtually any tariff decision that Trump will make. This court will be very significant.

Plus, the Court of International Trade does not use random assignments. Instead the Chief Judge assigns specific judges to specific panels. 28 U.S.C. § 253 provides:

The chief judge, under rules of the court, may designate any judge or judges of the court to try any case and, when the circumstances so warrant, reassign the case to another judge or judges.

And Rule 77(e) of the Court's rules provide, in part:

(e) Assignment and Reassignment of Cases.

(1) Assignment to Single Judge. All cases will be assigned by the chief judge to a single judge, except as prescribed in paragraph (2) of this subdivision (e).

(2) Assignment to Three-Judge Panel. A case may be assigned by the chief judge to a three-judge panel either on motion, or on the chief judge's own initiative, when the chief judge finds that the case raises an issue of the constitutionality of a federal statute, a proclamation of the President, or an Executive order; or has broad or significant implications in the administration or interpretation of the law.

(3) Time of Assignment. Cases are assigned by the chief judge at any time on the chief judge's own initiative or on motion for good cause shown.

This assignment makes Amarillo and Fort Worth seem like no problem at all.

It would be worth studying how members on the evenly-divided court are assigned to high-profile cases. We will be hearing a lot more about Judge Barnett over the next four years. For all the complaint about single judge divisions, more attention should be focused on the Court of International Trade.

Comments

[Dr. Ed 2]

"An inmate convicted of terrorism and vandalism offenses filed a judicial misconduct complaint against Judge Vaden for signing the letter. The misconduct complaint is currently pending before the Seventh Circuit's Judicial Council.
...
The inmate has no connection to Columbia University, any law school, Judge Vaden, or any case that could come before Judge Vaden."

I'm not so sure of that.

Convicted of terrorism. 18 USC 3221(b) says:
B) appear to be intended—
(i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping;

"The United States Court of International Trade, established under Article III of the Constitution, has nationwide jurisdiction over civil actions arising out of the customs and international trade laws of the United States" (it's website)

Without knowing the target of the terrorist act(s), this is mere speculation but could the concern be court believes it is likely to be asked to rule on a trade or sanction issue involving a country or party associated with the terrorist cause the terrorist was terrorizing on behalf of? Or an ally of such a country?

If Trump seeks to isolate and economically strangle Iran, he may impose harsh sanctions on countries that trade with Iran. Any challenges to those would come to this court.

If this is the case, then I think Roberts did the right thing.

I know that circuits aren't binding on each other, but when you have two other circuits that have already ruled a certain way on the exact same letter, can't the 7th simply say "we think they got it right"?

Now as to inmates filing complaints about judges they don't know, methinks we need bigger rocks in the yard for them to break into little ones.

[neurodoc]

It seems a bit of a tease to be told that the complainant is an "inmate convicted of terrorism and vandalism offenses (with) no connection to Columbia University, any law school, Judge Vaden, or any case that could come before Judge Vaden, but no further details, like what he did to land behind bars and how long he is expected to be there. For example, does he hope to attend law school after he is released and seek admission to the bar then, as a very few exceptional individuals (one to my alma mater) have done? Maybe he even aspires to attend Columbia Law and seek a federal clerkship then. I'd conjecture, though, it was more likely his terrorism was perpetrated as a member of the Columbia community except we are told he had no connection to that particular school.

In any event, his complaint should be summarily dismissed on account of an orthographic transgression: he (or someone acting on his behalf) mispelled "antisemitic." (Who did polish up the complaint? Someone(s) wasting time pro bono on his behalf? Why would it be a good thing to have such a complaint submitted by such a complainant?

[Dr. Ed 2]

"it was more likely his terrorism was perpetrated as a member of the Columbia community except we are told he had no connection to that particular school."

"Terrorism" is a high bar too meet, even if it includes something that the authorities prevented from happening. Besides, Columbia kids don't get prosecuted....

[David Nieporent]

I know that circuits aren't binding on each other, but when you have two other circuits that have already ruled a certain way on the exact same letter, can't the 7th simply say "we think they got it right"?

The 7th can't say anything, because the complaint isn't being reviewed by the 7th circuit; it's being reviewed by the 7th circuit judicial council, which is not the same thing. That having been said, the 7th circuit judicial council could say that, or for that matter nothing at all other than "the complaint is rejected."

Now as to inmates filing complaints about judges they don't know,

The rules allow anyone to file a complaint about any judge, without any involvement or personal knowledge of the underlying facts. That is stupid, particularly now that the Internet makes it so easy to organize campaigns against judges, but it's the way the system works.

[SimonP]

Josh, a more prudent advocate might have chosen the course of silence, rather than pushing the edge of their duty of confidentiality in order to comment upon a case for the sole purpose of drawing attention to themselves. You honestly do not need to comment on every interesting thing that passes under your fingers. Maybe, if you had spent more time in actual practice, you would grasp that.

First Liberty would do well to part ways with this loose-lipped hack.

[Dr. Ed 2]

Simon, this is what he wrote:

"With that background, I can point you to a statement posted on the First Liberty web site (for purposes of full disclosure, I've worked with First Liberty on many cases and projects over the years):"

Exactly what duty of confidentiality does he have?!?

He's pointing people to a public web site (he could have included the url but whatever) and what is on that website presumably is all he knows.

He said he's "worked with First Liberty on many cases and projects over the years" -- THAT DOES NOT MEAN HE IS WORKING ON THIS CASE!!!!!!

I know you want to cause trouble but he has not said he is working on this case, qed he is not bound by any confidentiality regarding it because HE DOESN'T KNOW ANYTHING CONFIDENTIAL ABOUT IT.

Now as to why First Liberty saw fit to put something on it's website, you will have to ask the person at First Liberty who put it there.

[Purple Martin]

"Exactly what duty of confidentiality does he have?!?

The duty of confidentially he specifically says constrain him:

Again, rules of confidentiality constrain what I can write here.

You have a problem with that? You think he's lying? Take it up with Josh.

[SimonP]

As Purple Martin has noted, Josh himself notes that he is subject to some "rules of confidentiality." Why, he doesn't say, and may be prohibited from saying.

This is why the post is "connecting the dots" based on publicly-available materials and various public rules. But he clearly wants to insinuate something, likely on a matter he is currently working on, and believes he can do so by simply writing a suggestive post strung on things that are not confidential.

Whether this wink-nudge approach to confidentiality is technically permitted by whatever "confidentiality rules" Josh is subject to, I won't opine. I will just say that lawyers are probably better-advised to err on the side of caution on these matters.

[Brett Bellmore]

That was my impression, too: "Why are you even posting about this, then?"

[Suudy]

I read the constraint as being a lack of information due to the confidentiality of the process, not that he personally had confidential information. But after reading the posts here, I can see how it read that way.

However, we are all called, in charity, to give individuals the benefit of the doubt. Why assume nefarious intent when a more charitable reading is just as plausible?

[The Margrave of Azilia]

I'd imagine that an *investigation,* as opposed to a *prosecution,* ought to be presumed confidential, not just in the case of judges but in the case of regular prole citizens. If a judge's colleagues suspect he's engaged in misconduct, they should have a confidential investigation and, if they think the colleague is guilty, report their findings to the House of Representatives with a recommendation for impeachment, and then everything should be out in the open.

And the rules for private citizens should likewise keep the investigators tight-lipped while looking into allegations which if made public might smear that citizen. No leaks - publicity should be reserved for situations where the authorities file charges in court.

I'm not saying the current rules *are* like that, just that they *ought* to be.

No special treatment for judges where confidentiality is concerned. If it's the custom (formal or informal) to leak information about investigations of regular Joe citizens, then it should be the custom to leak information about investigations of judges. Sauce, goose, gander, etc.

[The Margrave of Azilia]

Let me modify that even more - let the House of Representatives have staff members with the job of evaluating complaints against judges, and let these staffers go to the Judiciary Committee if the charges are serious enough, and recommend to the committee members that they conduct more investigations, possibly leading to impeachment depending on the situation.

But that would open up the process to leaks! Yes, just like with the regular Joes and Josephines. Cry me a river.

[Dr. Ed 2]

I think the judiciary committee ought to have a subcommittee on Judicial Misconduct and Temperment for that very purpose.

[Noscitur a sociis]

Again, rules of confidentiality constrain what I can write here.

Uh, why would the rules of confidentiality restrict what you can say? Are you working on the case?

In general, there may not be Obama or Trump judges. But Judge Mark Barnett, by statute, was an Obama judge. And Judge Stephen Vaden, by statute, was a Trump judge.

Uh, no. The statute looks to the judge’s political party affiliation, not the identity or party of the president who appointed them.

[David Nieporent]

Uh, why would the rules of confidentiality restrict what you can say? Are you working on the case?

You notice he was entirely coy about that, right? He wants to imply he has insider information that he can't disclose, without explicitly stating that or identifying the source of that information.

[TWW]

First sentence. It's 'too', not 'to'.