Why an Atlanta-based federal judge’s misconduct became Congress’ business
Federal judges are supposed to be independent. They should not fear removal because Congress dislikes their rulings, politics or interpretive methods. Judicial independence is one of the Constitution’s great protections for the rule of law.
But independence is not impunity.
The Constitution does not say that federal judges hold office for life, no matter what they do. Article III says they “shall hold their Offices during good Behaviour” (the British spelling). That phrase matters. It is the condition attached to the extraordinary protection of life tenure.
That point is no longer theoretical in Georgia.
A recent Eleventh Circuit judicial misconduct matter describes an unnamed federal district judge who engaged in an extramarital relationship with a high-ranking law enforcement officer, including sexual activity in chambers during business hours and within hearing distance of court staff. The judge initially denied the relationship but later admitted it.
The judiciary’s sanction was limited: a private reprimand, apology letters to former law clerks and commitments not to seek certain leadership positions. News organizations have identified the unnamed judge as U.S. District Judge Eleanor Ross of the Northern District of Georgia. Two Georgia members of Congress, Republican U.S. Reps. Andrew Clyde and Clay Fuller, have filed impeachment resolutions.
False statement and injudicious behavior are both problems
That public identification should not turn this into a circus. Nor should it obscure the constitutional issue. The question is not whether the judge committed a crime. It is whether a judge who uses chambers this way has continued to satisfy the constitutional condition of “good Behaviour.”
I think she has not.
This is not about prudery. Judges have private lives, and not every personal failing is a constitutional matter. The problem here is the connection between private misconduct and public office. Judicial chambers are not private bedrooms. Chambers are part of the federal workplace and part of the machinery of justice.
Honesty would not have cured the problem. Imagine a judge announcing that chambers would be unavailable during lunch because the judge was conducting an affair there with a police commander.
That announcement would avoid a false statement. It would still be intolerable. The misconduct is not only the denial to judicial investigators. It is the use of judicial space, judicial time and judicial authority in a way incompatible with the office.
Of course, the conflict concern is also serious. A secret relationship between a federal judge and a senior law-enforcement officer in the same community is not a harmless private indiscretion.
Federal courts hear criminal cases, civil rights actions, suppression motions, warrant challenges, police-witness credibility disputes and cases involving government agencies. The public should not have to rely on luck to preserve the appearance of impartial justice.
The judiciary’s response exposes the limits of self-policing. A private reprimand may be appropriate for ordinary misconduct. It is inadequate for conduct that used chambers for sexual activity, compromised staff, misled a misconduct inquiry, created conflict-of-interest risks and damaged public confidence in the courts.
Any impeachment process should be sober and not sensational
To be clear, Congress cannot invent a shortcut around impeachment. Removal requires impeachment by the House and conviction by the Senate.
But it does not follow that Congress may act only when a judge has committed crime. The Constitution directs that judges hold office during “good Behaviour,” which has to mean more than “not yet convicted of a crime.”
Congress must exercise this power with great caution. Judges must not face removal because legislators dislike their rulings. “Good Behaviour” cannot become a partisan trapdoor through which Congress threatens judicial independence whenever it is angry at the courts.
But this case is not about a controversial opinion, statutory interpretation, constitutional methodology or ideological disagreement. It is about personal misconduct in chambers, treatment of court staff, dishonesty in a judicial misconduct inquiry, attendance at a partisan event and misuse of the judicial workplace.
If Congress cannot even consider impeachment in a case like this, then “good Behaviour” has been drained of much of its meaning.
The House should open an expedited impeachment inquiry, first confirming whether the judge described in the misconduct orders really is Judge Ross, and then deciding whether articles of impeachment are warranted. The inquiry should be careful, not sensational. It should focus on the constitutional standard, not on embarrassment or political advantage.
The Senate, if articles are approved, should then decide whether the misconduct justifies conviction and removal. That decision should be sober, institutional and constitutional.
Life tenure protects judges from political pressure. But the price of that independence is conduct worthy of confidence. A judicial robe is not a nightgown. Chambers are not bedrooms. And “good Behaviour” is not an empty phrase.
When a federal judge stops behaving well in the performance and setting of judicial office, Congress should be willing to say so.
Michael J. Broyde is a professor of law at Emory University who teaches legal ethics. An earlier version of this guest opinion essay originally appeared in Reason/Volokh.
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