The Volokh Conspiracy
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Judicial Misconduct or Impeachment Based On The Merits Of a Decision
Could a Judicial Council take away all of a judge's cases based on the merits of a decision? Could Congress delegate this power of stealth impeachment?
The saga of Judge Pauline Newman is well known. For three years, the Federal Circuit has not assigned any new cases to Judge Newman because she refuses to obtain certain medical tests. Back in April 2023, I described this process as a stealth impeachment. A judge without any cases is no longer a judge.
I suspect the most obvious reply is that there is a difference between impeaching a judge and simply taking away their cases. After all, Judge Newman retains her fixed compensation and title. I am not so convinced. A judge's job is to decide cases. Imagine that Congress passed a statute providing that any judge who rules against President Trump will no longer be assigned any new cases, but they can keep their salary and title. Or what if Congress were to pass a statute divesting jurisdiction over every suit filed against the executive branch in Boston, and reassign those cases to the Amarillo Division of the Northern District of Texas. How would Judge Young and his colleagues respond?
Judge Newman's litigation brought by the NCLA has so far not been successful. (I am on the board of NCLA.) Now, the D.C. Circuit has denied en banc review, and the only remaining appeal is the United States Supreme Court. As I've said before, Chief Judge Kimberly Moore and her colleagues are waiting for the 98-year old Judge to die. I recently spoke to some staffers on Capitol Hill with Judge Newman, and can attest that she is 100% mentally acute. Her memory is better than people a third her age. The allegations against her are grossly unfair, yet the courts do nothing.
This background brings me to a different question I have been pondering. Judge Newman has been denied all new cases based on a perceived disability. But could a circuit impose a similar punishment for a judge based on her rulings?
Let me offer a fanciful hypothetical (perhaps not as fanciful as a hypo about the Alien Enemies Act and the British invasion). Imagine that a federal judge decided that he would no longer offer any rationales for his decisions. He would simply invite the parties to court, listen to their arguments, and announce a judgment for the plaintiff or the defendant from the bench, and then adjourn court. Following that oral order, the clerk would enter a judgment for the prevailing party. The judge explains that he only needs to issue an order, and no statute requires him to explain his reasoning. The Circuit Court consistently reverses this judge's rulings, and grants writs of mandamus, but the judge continues his practice.
Based on this "pattern or practice" of rulings, many litigants in the district file misconduct complaints. Could this complaint proceed, and if so, could the Judicial Council order that no new cases would be assigned to the judge until he begins to issue reasoned decisions for at least some of his rulings?
The starting point of this inquiry is the Judicial Conduct and Disability Act of 1980. 28 U.S.C. § 352 (b)(1)(A)(ii)) provides that that the Chief Judge of a Circuit can dismiss a complaint if it is "directly related to the merits of a decision or procedural ruling." But the judiciary has not construed this provision strictly.
In the 2006 report chaired by Justice Breyer, the Committee observed that there may be an exception to this rule.
A complaint of delay in a single case is properly dismissed as merits related. Such an allegation may be said to challenge the correctness of an official action of the judge, i.e., the official action of assigning a low priority to deciding the particular case in question. A judicial remedy exists in the form of a mandamus petition. But, by the same token, an allegation of an habitual pattern of delay in a number of cases, or an allegation of deliberate delay arising out of an illicit motive, is not merits related.
Court Rules, 239 F.R.D. 116, 240 (2006)
In other words, when there is some pattern or practice of delay on issuing decisions, that could give rise of a non-merits complaint. Of course, the decision to spend more time on a case is very much a merits issue. Judge Newman has explained that she takes more time on opinions than her colleagues, but that time is needed to get the case right. (And Newman's opinions have been upheld by the U.S. Supreme Court.) Again, the Breyer Report focuses on habitual delay, without regard to the rationale for the delay. A cynic could argue that Chief Judge Moore's real grievance with Judge Newman is the delay in issuing opinions, or as some allege, the merits of her opinion, but that is not the stated rationale. Remember, only President Trump is capable of acting pretextually. (In truth, Trump usually tells you exactly why he is doing what he is doing.)
There is another relevant precedent. Judge Manuel Real, a Johnson appointee, served on the District Court bench in California from 1966 until he died at the age of 95 in 2019. In the late 2000s, there was a series of misconduct proceedings against Judge Real. The Committee offered these allegations against him:
The committee informed the district judge that the cases presented the following issues: (i) refusal to follow, or demonstrating recalcitrance in following, court of appeals orders or directives; (ii) improper taking of jurisdiction over cases, or improper treatment of jurisdiction; (iii) failure to provide reasons when required; (iv) improper reliance on ex parte contact; and (v) abuse of authority. . . . The committee, however, also stated that it intended to investigate further whether the district judge had a pattern or practice of "failing to state reasons" when either prevailing law or a direction from the court of appeals in specific cases required him to do so, and whether—if established—such a pattern or practice would constitute judicial misconduct. In re Memorandum of Decision of Jud. Conf. Comm. on Jud. Conduct & Disability, 517 F.3d 558, 560 (U.S. Jud. Conf. 2008)
Again, these facts are different from my hypothetical, but are in the same ball park.
In 2008, the Committee on Judicial Conduct and Disability found that this type of misconduct was "not cognizable" under the Act because of Section 352(b)(1)(A)(ii). But the Committee explained that in rare cases, a "pattern or practice" could give rise to judicial misconduct:
We agree that a judge's pattern and practice of arbitrarily and deliberately disregarding prevailing legal standards and thereby causing expense and delay to litigants may be misconduct. However, the characterization of such behavior as misconduct is fraught with dangers to judicial independence. Therefore, a cognizable misconduct complaint based on allegations of a judge not following prevailing law or the directions of a court of appeals in particular cases must identify clear and convincing evidence of willfulness, that is, clear and convincing evidence of a judge's arbitrary and intentional departure from prevailing law based on his or her disagreement with, or willful indifference to, that law.
We have concluded that this standard is necessary to ensure that misconduct proceedings do not intrude upon judicial independence by becoming a method of second-guessing judicial decisions. For example, every experienced judge knows of cases where the circumstances justifiably called for a decision that was superficially at odds with precedent. This is because although prevailing legal standards have large areas of clarity, litigation often involves the borders of those areas. Breathing room—something more than a comparison of a judge's ruling with a special committee's or judicial council's view of prevailing legal standards—must therefore be afforded. This standard, requiring clear and convincing evidence of an arbitrary and intentional departure from, or willful indifference to prevailing law, provides that breathing room.
In the present case, the Judicial Council made no express finding of willfulness, and the district judge's letter also fails to admit willfulness expressly. Therefore, we conclude that we must return this matter to the Judicial Council of the Ninth Circuit for further consideration of the facts of this case under the above-articulated standard. Great care must be taken in finding clear and convincing evidence of willfulness. To the extent that such a finding is based simply on a large number of cases in which reasons were not given when seemingly required by prevailing law, the conduct must be virtually habitual to support the required finding. However, if the judge has failed to give reasons in particular cases after an appellate remand directing that such reasons be given, a substantial number of such cases may well be sufficient to support such a finding. Hirliman, 503 F.3d at 216–17.
At the end of the memorandum, the Committee suggested that if this high burden of willful misconduct is met, the sanction could include removing all cases:
Therefore, if the Council finds willfulness, it should consider a more severe sanction, such as a public censure or reprimand and an order that no further cases be assigned to the judge for a particular period of time.
As I read this memorandum, if a judge demonstrates a "pattern and practice of arbitrarily and deliberately disregarding prevailing legal standards," and that willful behavior does not change, then the judiciary can divest the judge of all new case assignments. And in my view, the failure to assign cases to a judge amounts to a stealth impeachment.
If this analysis is right, then Congress gave the Judiciary the power to take cases away from an Article III judge indefinitely based on the merits in a "pattern or practice" of cases. If Congress was able to delegate this power to the Judiciary, then Congress must retain this power in its own right. And what is the constitutional mechanism for Congress to enforce its powers against officers in other branches? Impeachment. Therefore, if all of this is right, then Congress should be able to impeach an Article III judge based on the merits in a "pattern or practice" of cases. If Congress can't perform this sort of impeachment, then it is questionable whether the judiciary could impose such a sanction. It cannot be the case that the Judiciary has a power here that Congress does not. Congress cannot delegate to the courts a power greater than what Congress already has. And I don't think the Judiciary would have any sort of inherent power to remove cases from an Article III judge.
The lack of outrage against what happened to Judge Newman is unfortunate. But the implications of what Chief Judge Moore and her colleagues have done very well may have an impact in the near future on Judge Boasberg. In other words, if Chief Judge Moore and her colleagues can cosplay as Congress and stealth impeach Judge Newman, then the real Congress should actually be able to impeach Judge Boasberg.
I think impeachment of judges is a decision that would boomerang very quickly. As Mitch McConnell said in 2013 after Harry Reid used the nuclear option, "You will regret this, and you may regret it a lot sooner than you think." Then again, I'm not so sure Senator Reid would regret it. By nuking the filibuster, Reid gave the D.C. Circuit a Democratic-appointed majority for the foreseeable future. This court gives Democratic litigants a permanent friendly forum to challenge any conservative president. At this point, any panel with Judges Rao and Katsas is automatically en banc'd. Talk about an asymmetry. And because the current crop of judges can time their retirements, there may never again in my lifetime be a Republican-appointed majority. The D.C. Circuit could be like the Ninth Circuit after Carter's many appointments. It took nearly fifty years to come close to parity. Alas, as Ed Whelan noted, George W. Bush had such a minor impact on this court as well.
As I wrote before, Judge Bove and Justice Kavanaugh will likely be the first targets. But at this point, I think the Boasberg train has already left the station, and there is not much that can be done to stop it. If only the Judicial Conference had taken some steps to defend Judge Newman. But they remain silent.
(My thanks to Professor Arthur Hellman, who has an encyclopedia knowledge of judicial misconduct rules.)
