The Eleventh Circuit Judicial Council may have thought Judge Eleanor Ross’s apology was sufficient to keep the reprimand private, but those not wearing a robe continue to see a problem. Representative Jordan of the House Judiciary Committee is starting to discuss an investigation.
The House Judiciary Committee’s top Republican said his staff is looking at possible congressional action after a Georgia federal judge had an affair in her chambers, in earshot of clerks, and lied to judiciary officials about it.
Judiciary Chairman Jim Jordan (R-Ohio) said Wednesday that his staff has “already put together a memo” on the facts involved in the misconduct findings against Judge Eleanor Ross of the Atlanta-based US District Court for the Northern District of Georgia.
The “key fact,” he said in a brief interview, was that Ross lied to the judges investigating her misconduct. A judicial special committee report, released publicly in May, found the judge made “false statements” to the chief judges of her district and of the US Court of Appeals for the Eleventh Circuit, which oversees federal courts in Georgia, Florida, and Alabama.
“We’re looking at it. We’re going to run it by our members and see,” Jordan said.
Jordan also wouldn’t rule out impeachment as a possible response, a rare process for judges historically.
“Everything’s on the table,” Jordan said. “We don’t take anything off the table.”
To keep this discourse going, I am happy to pass along another guest post from Professor Arthur Hellman about Judge Eleanor Ross’s situation.
If Judge Ross’s “Improper Sexual Activity” “Greatly Damage[s] [Her] Credibility as a Judge,” Does That Satisfy the Standard for Impeachment?
In a recent guest post, I explained why one of the findings of judicial misconduct by Atlanta Federal District Judge Eleanor Ross – making false statements to investigating judges – corresponds closely to conduct that was one basis for impeaching Federal District Judge Samuel B. Kent in 2009. A second finding of misconduct by Judge Ross – labelled “Improper Sexual Activity in Chambers with a Law Enforcement Officer” in the Special Committee report – has no counterpart in any judicial impeachment proceeding that I’m aware of. But that does not mean that it could not be a possible basis for impeachment.
My purpose here is not to develop the point in detail, but rather to call attention to a statement in the Special Committee report that bears on the question. The Eleventh Circuit Judicial Council unanimously adopted the “findings and recommendations” of that report. To provide complete context, I will copy a little more of the paragraph than is probably necessary. Here is what the Special Committee wrote (pp. 15-16):
“For two years, the Subject Judge was a federal district judge who routinely heard criminal cases [and who] engaged in a secret extramarital relationship with a prominent officer of a large law enforcement agency in the judge’s district—with the affair consisting of sexual intercourse in the Subject Judge’s chambers during working hours. Moreover, during this period, the Subject Judge’s spouse was not aware of the affair. Undoubtedly, a bad actor could have used these facts to try to blackmail the Subject Judge. Even absent a blackmail attempt, the publication of these facts would have greatly damaged the Subject Judge’s credibility as a judge and brought disrepute to the federal judiciary.”
The first quoted sentence summarizes the judge’s conduct. The last sentence states that “the publication of these facts” – i.e., the facts stated in the first quoted sentence – “would have greatly damaged the Subject Judge’s credibility as a judge and brought disrepute to the federal judiciary.”
Preliminarily, it seems odd to state that “publication of [the] facts” would “greatly damage[] [Judge Ross’s] credibility as a judge,” etc. If that is so, it must be because public knowledge of the underlying conduct would have that result. In any event, the facts have now been published, and (notwithstanding the Judicial Council’s efforts), the identity of the judge is also public knowledge. (The Council apparently acted as it did because it believed, as stated on the last page of the Special Committee report, that Judge Ross had provided “otherwise exemplary service to the court” and that she should be allowed to continue that service.)
Now let us consider the standard for judicial impeachment. Under the Constitution, an Article III judge like Judge Ross can be impeached and removed from office for “high crimes and misdemeanors.” In my testimony at the House Judiciary Committee Task Force hearing on the proposed impeachment of Judge Kent, I sought to ascertain the meaning of that term as applied to judges. There were (and are) no judicial decisions to consult, because impeachment is not subject to judicial review. Instead, I looked to Founding Generation sources and to early commentators whose writings have been relied on by the Supreme Court to determine the meaning of other constitutional provisions.
Two of the commentaries are particularly relevant here. (For background and citations, see the hearing statement linked above.) William Rawle, writing about the “system” of impeachment, stated: “We may perceive in this scheme one useful mode of removing from office him who is unworthy to fill it.” (Emphasis added.) The House Judiciary Committee, in its report recommending impeachment of Judge Kent, quoted this language from Rawle’s treatise (p. 18).
Justice Joseph Story, in his widely cited treatise on the Constitution, discussed the question whether impeachment is limited to “official acts.” Story asked: “Suppose a judge or other officer to receive a bribe not connected with his judicial office; could he be entitled to any public confidence? Would not these reasons for his removal be just as strong, as if it were a case of an official bribe?” (Emphasis added.) I cited this statement in response to a question from then-Rep. Adam Schiff, the chairman of the Task Force, at the Kent hearing. See pp. 215-16 of the hearing record.
Judge Story’s premise seems to be that a judge or other officer warrants impeachment and removal if she has engaged in behavior that results in a loss of “public confidence” in her ability to perform the functions of her office. (And that behavior is not limited to “official acts.”) This is not quite the same thing as saying that the officer is not worthy to fill the office, but there is substantial overlap, and both formulations suggest a similar forward-looking perspective.
It seems to me that the Special Committee’s statement about Judge Ross’s “improper sexual activity” corresponds closely to both delineations of the impeachment standard. The Committee said that public knowledge of Judge Ross’s conduct would “greatly damage[] [her] credibility as a judge.” If her credibility is greatly damaged, isn’t that strong evidence that she is “unworthy to fill’ the judicial position that she holds? And would she still be entitled to “any public confidence?”
None of this is definitive; each case is different. But these views of the impeachment standard – one of which was explicitly endorsed in the House Judiciary Committee report recommending the impeachment of Judge Kent – are sufficient to warrant the House in opening an inquiry into the possible impeachment of Judge Ross, independent of her false statements to investigating judges.
There is one aspect of the Eleventh Circuit’s memorandum that I can’t quite pin down. I agree that Judge Ross’s sexual misconduct “damaged the Subject Judge’s credibility.” That is almost always true–a judge that engages in misconduct has diminished credibility. But did the Council seek to avoid further diminishing the judge’s credibility by making the reprimand private? In other words, was the private reprimand an effort to ensure that Judge Ross could continue doing her job. She is already facing at least one recusal motion, and more will follow. Stated differently, once the Council determined that no meaningful punishment would be given, and that even the apology letters could be vague, the judges determined that the best path forward for Judge Ross’s continued judicial service was to make the reprimand private. There is definitely some sort of coupling between the “diminished credibility” risk and the private reprimand, but I can’t quite tease it out.
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