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AN EXAMINATION OF THE JUDICIAL CONDUCT 

AND DISABILITY SYSTEM 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

COURTS, INTELLECTUAL PROPERTY, 

AND THE INTERNET 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

APRIL 25, 2013 

Serial No. 113–25 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 
(II) 

COMMITTEE ON THE JUDICIARY 

BOB GOODLATTE, Virginia, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

STEVE CHABOT, Ohio 

SPENCER BACHUS, Alabama 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

MARK AMODEI, Nevada 

RAU ́ L LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

GEORGE HOLDING, North Carolina 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

[Vacant] 

JOHN CONYERS, JR., Michigan 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

SUZAN DelBENE, Washington 

JOE GARCIA, Florida 

HAKEEM JEFFRIES, New York 

SHELLEY HUSBAND, Chief of Staff & General Counsel 

PERRY APELBAUM, Minority Staff Director & Chief Counsel 

SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND THE INTERNET

HOWARD COBLE, North Carolina, Chairman 

TOM MARINO, Pennsylvania, Vice-Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

LAMAR SMITH, Texas 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

TED POE, Texas 

JASON CHAFFETZ, Utah 

MARK AMODEI, Nevada 

BLAKE FARENTHOLD, Texas 

GEORGE HOLDING, North Carolina 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

[Vacant] 

MELVIN L. WATT, North Carolina 

JOHN CONYERS, JR., Michigan 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

JUDY CHU, California 

TED DEUTCH, Florida 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

SUZAN DelBENE, Washington 

HAKEEM JEFFRIES, New York 

JERROLD NADLER, New York 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

JOE KEELEY, Chief Counsel 

STEPHANIE MOORE, Minority Counsel 
(III) 

C O N T E N T S 

APRIL 25, 2013 

Page 

OPENING STATEMENTS 

The Honorable Howard Coble, a Representative in Congress from the State 

of North Carolina, and Chairman, Subcommittee on Courts, Intellectual 

Property, and the Internet .................................................................................. 1 

The Honorable Melvin L. Watt, a Representative in Congress from the State 

of North Carolina, and Ranking Member, Subcommittee on Courts, Intellectual Property, and the Internet .......................................................................... 2 

WITNESSES 

The Honorable Anthony J. Scirica, Senior Judge, United States Court of 

Appeals for the Third Circuit 

Oral Testimony ..................................................................................................... 6 

Prepared Statement ............................................................................................. 9 

The Honorable David B. Sentelle, Senior Judge, United States Court of Appeals for the District of Columbia 

Oral Testimony ..................................................................................................... 21 

Prepared Statement ............................................................................................. 24 

Arthur D. Hellman, Sally Ann Semenko Endowed Chair, University of Pittsburgh School of Law 

Oral Testimony ..................................................................................................... 34 

Prepared Statement ............................................................................................. 36 

Russell R. Wheeler, Visiting Fellow, The Brookings Institution, and President, 

The Governance Institute 

Oral Testimony ..................................................................................................... 68 

Prepared Statement ............................................................................................. 69 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Response to Questions for the Record from Thomas F. Hogan, Secretary, 

Judicial Conference of the United States ........................................................... 91 

Response to Questions for the Record from Arthur D. Hellman, Sally Ann 

Semenko Endowed Chair, University of Pittsburgh School of Law ................. 95 

Response to Questions for the Record from Russell R. Wheeler, Visiting 

Fellow, The Brookings Institution, and President, The Governance Institute ........................................................................................................................ 97

(1) 

AN EXAMINATION OF THE JUDICIAL 

CONDUCT AND DISABILITY SYSTEM 

THURSDAY, APRIL 25, 2013 

HOUSE OF REPRESENTATIVES

SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND THE INTERNET

COMMITTEE ON THE JUDICIARY

Washington, DC. 

The Subcommittee met, pursuant to call, at 1:33 p.m., in room 

2141, Rayburn House Office Building, the Honorable Howard Coble 

(Chairman of the Subcommittee) presiding. 

Present: Representatives Coble, Chabot, Issa, Marino, Holding, 

Collins, Watt, Conyers, Jackson Lee, Richmond, DelBene, and 

Jeffries. 

Staff Present: (Majority) David Whitney, Counsel; Olivia Lee, 

Clerk; and Stephanie Moore, Minority Counsel. 

Mr. COBLE. Good afternoon, ladies and gentlemen. The Subcommittee on Courts, Intellectual Property, and the Internet will 

come to order. 

Without objection, the Chair is authorized to declare recesses of 

the Subcommittee at any time. 

We welcome all of our witnesses today. 

Now I am told that there will be a vote imminently forthcoming. 

So we can’t always judge that accurately, but we will proceed in 

any event. 

Good afternoon again, ladies and gentlemen. We welcome you to 

this important hearing into the operation of our Federal courts. 

‘‘Equal justice under law,’’ those four words are inscribed over the 

entrance to the U.S. Supreme Court. But for those words to have 

meaning to all Americans, they must be considered not merely an 

inspiring aspiration, but what is experienced in the day-to-day operation of our Federal judiciary. 

Throughout my tenure in Congress, integrity and accountability 

within our Federal courts has been a priority for this Subcommittee and the judiciary. During this time, we have conducted 

many oversight hearings and implemented changes when necessary, most recently the Judicial Improvements Act of 2002. 

At a time when communication is instantaneous and perceptions 

can be defined in a moment, it is more important than ever that 

we take appropriate steps to ensure the public is assured that the 

institutions and the individuals who serve them are accountable 
2 

and transparent. A few bad apples, as you know, can spoil the barrel, and that is certainly true when it comes to the courts where 

a few life tenured judges, some of whom engage in perjury, some 

who intimidated and sexually abused their own court employees, 

can inflict pain on others and negatively affect the public’s perception of our system of justice. 

To respond to cases like these as well—strike that. To respond 

to cases like these, as well as to deal with allegations of misconduct 

that do not rise to the level of an impeachable offense, Congress 

enacted the Judicial Conduct and Disability Act of 1980. That law 

provides a structure that permits the judiciary to engage in a larger decentralized self-regulatory system. 

Though amended twice since 1980, the basic policy approach has 

remained substantially unchanged. Since 2006, however, there has 

been an increased recognition that the judiciary needs to do more 

to centralize implementation of the Act. Without stealing thunder 

from any of our witnesses today who will address these steps in 

greater detail, I will simply note that the publication of the Breyer 

Committee report granting a new authority to the Judicial Conference’s Judicial Conduct Committee and the adoption of the first 

national rules governing review of misconduct allegations are positive developments. 

But there remain both substantive and procedural reforms this 

Subcommittee and the court should consider implementing to improve the existing processes. 

I look forward to receiving and considering the suggestions of 

Professor Hellman, who is perhaps our Nation’s leading authority 

on the subject of judicial discipline. In addition to Professor 

Hellman, we are fortunate to have two distinguished jurists who 

have dedicated their entire professional lives not only to their services on the bench, but who are also widely recognized for their efforts to improve the administration and operation of the judiciary. 

Finally, we are fortunate to have with us one of our own experts 

who was actively and intricately involved in preparing the Breyer 

Committee report, formulating its recommendations. 

In conclusion, I want to just observe that the public, to have confidence in the judgment of the court, they must have confidence in 

both the judicial system and the integrity of its individual judges. 

With that, the stage is set for what I hope will be a fruitful and 

productive dialogue over coming months on how we can together 

better ensure that conduct prejudicial to the effective and expeditious administration of the business of the courts is prohibited in 

the first instance, or appropriately and rapidly corrected when it 

does occur in the second instance. 

Now I assume there is a vote on now. Is that valid? Mel, you 

want to give yours before we go? 

Mr. WATT. I think I can get it in. 

Mr. COBLE. I am pleased to recognize the distinguished gentleman from North Carolina, Mr. Mel Watt, for his opening statement. 

Mr. WATT. I thank the Chairman, and I welcome our witnesses, 

and I especially welcome my good friend in whose court I have appeared in an earlier life, Judge Sentelle. It is great to see him. He 
3 

is looking more judicial every day, which means his hair is getting 

like mine. 

Mr. COBLE. Well, you both still have hair, unlike me. 

Mr. WATT. That is very helpful, yes. 

Mr. Chairman, this is the first hearing of this Congress under 

this Subcommittee’s newly acquired jurisdiction involving the 

courts. So it is fitting that we have this distinguished panel before 

us. 

As a practicing attorney for 22 years before coming to Congress, 

I have a healthy respect for our judicial system, a system which is 

envied around the world. The hallmark of our third co-equal 

branch of the Federal Government is its independence. That independence is safeguarded or at least augmented by the constitutional guarantee of service in office ‘‘during good behavior’’ and removal only through impeachment, which has been traditionally reserved, as it should be, for the most egregious cases. 

Prior to 1980, non-impeachable yet serious offenses were handled 

through a patchwork of State laws. A uniform system for policing 

judicial misconduct and disability was necessary to ensure that errant judges did not betray the public trust or the integrity of the 

judiciary, and the new system was adopted and signed into law in 

1980. 

When signing the measure into law, President Jimmy Carter 

noted that, ‘‘It makes a sound accommodation between two essential values—preserving the independence of the Federal judiciary 

and making judges, as public servants, accountable under the laws 

for their conduct in office.’’ 

Since 1980, the mechanism for investigating and adjudicating 

complaints against Federal judges has undergone improvement, 

both statutorily under the able leadership of Chairman Coble and 

then-Ranking Member Howard Berman, as well as by the judiciary 

based on the 2006 Breyer Committee report and the subsequent 

adoption by the Judicial Conference of Uniform Mandatory Rules 

in 2008, which incorporated many of the Breyer Committee’s recommendations. 

Today’s oversight hearing is an opportunity for Congress to assess how things are going. The men and women who serve on the 

Federal bench generally do so with distinction and honor and often 

after lengthy, contentious, sometimes partisan confirmation proceedings. 

Vacancies resulting from failures to confirm or delays in confirmation impose additional burdens on those who serve. Prolonged 

vacancies are not good for the workload or the morale of incumbent 

judges and may also result in mediocre appointments as quality 

candidates withdraw from consideration. 

Additionally, judicial salaries are often quickly surpassed by the 

salaries of former law clerks when they enter legal practice. Artificially low compensation and increased workloads, of course, do not 

excuse bad behavior. Although five Federal judges have faced impeachment within the past several years, Congress has only removed two judges since the last removal in 1989. 

Although the details of each case vary, that statistical evidence 

suggests that the incidence of thoroughly unfit judges who should 

face the ultimate sanction of impeachment and removal from office 
4 

is low. This seems to confirm that the process by which judges are 

referred to Congress by the Judicial Conference is working. 

The management of complaints that do not rise to the level of an 

impeachable offense are also vitally important to ensure that the 

public retains confidence in the judiciary. The Breyer Committee 

was charged with reviewing the implementation of the judicial misconduct mechanism to determine ‘‘whether the judiciary in implementing the Act failed to apply the Act strictly, as Congress intended, thereby engaging in institutional favoritism.’’ 

Effective enforcement of ethical codes of conduct requires that 

the judiciary self-regulate without preferential treatment to undue 

leniency in favor of accused colleagues. I expect that our witnesses 

will address many of the recommendations of the Breyer Committee that address adequate and unbiased self-regulation by the 

judiciary, as well as any gaps in implementation that may need attention. 

I am equally interested in learning more about two aspects of the 

overall complaint process that I think serve the twin goals articulated by President Carter decades ago—preserving independence 

and commanding accountability. Specifically, I believe that a process that safeguards both the rights of the accused and the complainant will promote public confidence in that process regardless 

of the outcome. 

Employees within the judicial branch must not only feel secure 

in disclosing what they believe to be improper conduct, they must 

also be adequately protected against retaliation when they make 

good faith allegations against powerful judges. These employees are 

often in a position to detect and prevent misconduct early, and robust whistleblower protections will serve that aim. 

It is equally important to the process that judges who are unfairly or erroneously targeted and incur unwarranted legal fees in 

their defense get reimbursed. Still, while I understand that attorneys fees and other reasonable costs may be awarded, I am concerned that the reimbursement is authorized under—as authorized 

under 16 U.S.C. Section 361 only ‘‘from funds appropriated to the 

Federal judiciary.’’ 

We need to be sure that the language of Section 361 does not 

present a problem in these tight budget times, especially during 

this time of sequestration. I hope that the witnesses, either in their 

prepared remarks or the question and answer period, will have an 

opportunity to address these concerns, along with any other concerns and issues they have identified. 

And I thank them again for being here. Great to see you again, 

Judge Sentelle. Great to see all of you. I am not—I might have to 

go back to his court sometime. So I am being especially nice to him. 

[Laughter.] 

I yield back, Mr. Chairman. 

Mr. COBLE. I thank the gentleman. 

And this Subcommittee hearing will stand in recess, subject to 

our return from the floor. 

[Whereupon, at 1:44 p.m., the Subcommittee recessed, to reconvene at 2:11 p.m., the same day.] 

Mr. COBLE. I normally beat Mr. Watt back from the floor, but he 

was the winner today. So kudos to him. 
5 

We will resume our hearing, folks. 

We have a very distinguished panel of witnesses today. Each of 

the witnesses’ written statement will be entered into the record in 

its entirety, and I ask that each witness summarize his testimony 

in 5 minutes or less. 

There is a clock monitor on your panel there. When the green 

light turns to amber, that gives you a minute’s warning. The red 

light illuminates, that is your warning to stop. Now you won’t be 

keelhauled if you violate it, but try to stay within the 5 minutes 

if you can. When the light switches on—as I just said that. 

I will begin by swearing in our witnesses before introducing 

them. If you would, please, all rise, raise your right hands. 

[Witnesses sworn.] 

Mr. COBLE. Let the record reveal that all four witnesses responded in the affirmative. 

As I said before, we have a very distinguished guest today, and 

we were glad to welcome each of you four. But I am particularly 

pleased to see Professor Hellman again, who has appeared on the 

Hill many times. Good to have you back, Professor. And not unlike 

Mr. Watt, I proudly claim a longstanding friendship with Judge 

Sentelle. But it is good to have the other two as well. I don’t mean 

to diminish your presence. 

Our first witness today is the Honorable Anthony J. Scirica. 

Mr. ISSA. Mr. Chairman? 

Mr. COBLE. Yes, sir? 

Mr. ISSA. A point of privilege, Mr. Chairman. Since you are introducing your good friends, I would note the presence of the Chief 

Judge of the Southern District of California, Judge Moskowitz, is 

also with us today in the audience. And no stranger to the issues 

of my district and my region for decades. 

And so, since I have known him since he was a baby magistrate, 

I just wanted to make sure I embarrassed him publicly in this 

hearing because he is a person I admire a great deal. 

Mr. COBLE. Thank you, Darrell. I appreciate that. 

And Your Honor, good to have you with us as well. 

The Honorable Anthony J. Scirica, senior judge of the U.S. Court 

of Appeals, as Darrell just told us. And I think you pretty well covered it, Darrell. Prior to his appointment, he served as a State representative in the Pennsylvania General Assembly and also as assistant district attorney to Montgomery County in Pennsylvania. 

Judge Scirica received his law degree from the University of 

Michigan and his bachelor’s degree from Wesleyan University. 

Our second witness today is the Honorable David B. Sentelle, our 

fellow North Carolinian, senior judge of the U.S. Court of Appeals 

for the District of Columbia Circuit. Judge Sentelle was appointed 

to the U.S. District Court for the Western District of North Carolina in 1985 by President Ronald Reagan and then served on the 

D.C. Circuit from 1987 until the present time. 

Prior to his appointment, Judge Sentelle served as the assistant 

U.S. attorney in Charlotte, North Carolina. He also practiced law 

at two firms, first Ussell & Dumont, then Tucker, Hicks, Sentelle, 

Moon & Hodge. 
6 

Judge Sentelle is a double Tar Heel, having received both his law 

degree and bachelor’s degree from the University of North Carolina 

at Chapel Hill. 

Our third witness is Professor Arthur Hellman from the University of Pittsburgh School of Law. Professor Hellman serves as one 

of the Nation’s leading academic authorities on Federal judicial 

ethics. He has testified multiple times before this Committee and 

this Subcommittee and has received public recognition for his work 

in helping draft the Judicial Improvements Act of 2002. 

Professor Hellman is well recognized for his publications that include numerous articles and several books. In 2005, he was appointed as the inaugural holder of the Sally Ann Semenko Endowed Chair at the university. In 2002, he received the 

Chancellor’s Distinguished Research Award. Professor Hellman received his J.D. degree from the Yale School of Law and his B.A. 

magna cum laude from Harvard University. 

Our final and last witness is Mr. Russell Wheeler, visiting fellow 

in the Government Studies Program at the Brookings Institute. 

Mr. Wheeler joined the Federal Judicial Center in 1977 and served 

as Deputy Director from 1991 until 2005. His extensive research 

and publications deal with the United States courts, including judicial selection and judicial ethics. 

Mr. Wheeler is currently an adjunct professor at American University’s Washington College of Law and serves on the Academic 

Advisory Committee of the American Bar Association’s Standing 

Committee on Federal Judicial Improvements. 

Mr. Wheeler received his J.D. and M.A. in political science from 

the University of Chicago and his B.S. degree from Augustana College. 

Welcome to all of you, and Judge, we will begin with you, Your 

Honor. 

TESTIMONY OF THE HONORABLE ANTHONY J. SCIRICA, SENIOR JUDGE, UNITED STATES COURT OF APPEALS FOR THE 

THIRD CIRCUIT 

Judge SCIRICA. Thank you very much, Mr. Chairman. Thank you 

for inviting me to testify. 

I am Anthony Scirica. I’m a judge on the United States Court of 

Appeals for the Third Circuit, and I chair the Judicial Conference 

Committee on Judicial Conduct and Disability. 

For 7 years, I served as the chief judge of the Third Circuit. In 

that capacity, I received roughly two judicial conduct complaints a 

week. My job was to adjudicate and resolve these in a manner consistent with the Act and, after 2008, under the new procedural 

rules adopted that year by the Judicial Conference. I always believed that nothing I did as a chief circuit judge was more important than adjudicating these complaints. 

By enacting the Judicial Conduct and Disability Act of 1980, 

Congress entrusted to the judiciary the responsibility to regulate 

judicial conduct and disability. With that responsibility comes the 

imperative of accountability. Judicial accountability and judicial 

independence are two sides of the same coin, as both are essential 

to establish and protect the rule of law. 
7 

At the end of the day, respect for the judgment and rulings of 

courts depends on public confidence in the integrity, competence, 

independence, and accountability of their judges. I appreciate this 

opportunity to set forth the steps we have taken to implement the 

Act. I will begin by noting that the complaint process is interrelated with the Code of Conduct for United States Judges. 

The Judicial Conference has explicitly stated that the Code of 

Conduct provides the standards of conduct to apply in these proceedings. The Code of Conduct and the disciplinary system set 

forth in the Act, therefore, are complementary and act in tandem. 

In 2004, Chief Justice William Rehnquist appointed a study committee known as the Breyer Committee after its chair, Justice Stephen Breyer, to evaluate implementation of the Act. It has been 

nearly 7 years since the Breyer Committee issued its report in 

2006. 

Now is a good time to review how the rules are operating and 

to consider adjustments. We welcome Congress’ views on these 

issues. We value your perspective and oversight. We look forward 

to working together to improve our process. 

Before the Breyer Committee report, the main work of the committee was primarily deciding petitions for review of judicial council actions taken under the Act. The Breyer Committee recommended that the committee become more active in several areas, 

including providing advice to chief circuit judges and circuit councils and guidance to chief circuit judges as to when they should initiate a complaint. 

Also some questions had arisen over matters in which chief circuit judges had not appointed special investigating committees. In 

light of this, the Judicial Conference recognized the need for a set 

of mandatory and clarifying rules, and in 2008 adopted the first set 

of uniform mandatory rules governing the complaint process. 

Significantly, the Conference expanded the authority of the Judicial Conduct and Disability Committee. These developments were 

important because in addition to mandating national uniformity, 

they established oversight and review. They centralized supervisory authority, created a hierarchy of accountability, and improved transparency of the judicial conduct complaint process. 

The Judicial Conference also expanded the oversight role of the 

Judicial Conduct and Disability Committee to include monitoring 

the orders issued by chief circuit judges, circuit councils, and national courts under the Act. This enables the committee to step in 

to assist the circuit councils if requirements are overlooked and to 

ensure that the Act is functioning properly. 

Self-regulatory systems impose significant responsibilities on 

those who must enforce the regulations. The disciplinary system is 

self-regulatory in a legitimate effort to preserve judicial independence. As stewards, we recognize that it is essential that we continually monitor and assess our disciplinary system to make sure that 

it is effective and that it adheres to the correct standards and procedures. 

We want to make certain that our disciplinary system holds 

judges accountable for misconduct, but at the same time protects 

a vital judicial independence. If we deviate from the current disciplinary system, we would create the potential to alter the well- 
8 

balanced calibration in our constitutional system of checks and balances that has served our country so well. 

As I noted, Mr. Chairman, we welcome the opportunity to work 

with you, with the Committee, and with Congress to improve the 

judicial system and in particular to improve our disciplinary and 

disability system. As chair of the committee, I am always available, 

and I welcome the opportunity to brief you and Members of the Judiciary Committee on the operation of the Act. 

That concludes my prepared remarks, and I welcome any questions you may have. 

[The prepared statement of Judge Scirica follows:] 
9 

JUDICIAL CONFERENCE OF THE UNITED STATES 

STATEMENT OF 

JUDGE ANTIIONY J. SQRlCA 

U.S. COU RT OF APPEALS FOR TIlE TH.fRD CIRCUIT 

CHAIR, JUDICIAL CONFERENCE COMMITIEE ON JUDIClAL 

CONDUCT AND DISABLLITY 

BEFORE 

TilE SUBCOJ\.tMI1TEE ON COURTS- INTELLECTUAL PROPERTY 

At"iD TUE INTERNET 

CO;\1MllTEE ON 11IE JUDlCJARY 

lIJIoTfED STATES HOUSE OF R£PRES£J\'TATlVES 

ON 

"AN EXAMINATION m ' 111EJUDICIALCONOUcr AND DISABILITY 

SYSTEM~ 

April lS, 2013 
10 

TESTIMONY OF JUDGE ANTHONY J. SCIRICA 

Good afternoon, and thank you for inviting me to \esli/y. I am Anthony Scirica, and I am 

a judge on the United States Court of Appeals for the Third Circuit. I chair the Judicial 

Conference Committee on Judicial Conduct and Disability, whose charter includes overseeing 

the administration of the Judicial Conduct and Disability Act of 1980, 28 U.s.C. §§ 351-364. 

For seven years I served as the chief judge of the Third Circuit. In that capacity I received 

roughly two judicial conduct or disability complaints a week. My job was to adjudicate and 

resolve these in a manner consistent with the Act, and alter 2008, under the new procedural rules 

adopted that year by the Judicial Conference. I always believed that nothing I did as a federal 

judge was more important than adjudicating these complaints. 

By enacting the Judicial Conduct and Disability Act of 1980, Congress entrusted to the 

Judiciary thc rcsponsibility to regulate judicial conduct and disability. With that responsibility 

comes the imperative of accountability. Judicial accountability and judicial independence-both 

decisional and institutional independence-are two sides of the same coin, as both are essential 

to establish and protect the rule ortaw. At the end oCthe day, respect for the judgments and 

rulings of courts depends upon public confidence in the integrity, competence, independence, 

and accountability of their judges. 

T appreciate the opportunity to set forth the steps '''ie have taken to implement tile Act. 

The Design and Purpose of the Act 

The Judicial Conduct and Disability Act of 1980 proscribes behavior or "conduct 

prejudicial to the effective and expeditious administration of the business of the courts." It 

entrusts to the Judiciary the authority to adjudicate and re~olye complaints of judicial conduct 
11 

and disability, and to create rules of procedure.' The 1980 Act empowers chief circuit judges, 

circuit councils, and the Judicial Conference to investigate and remedy complaints of judicial 

conduct and disability. The process is inquisitorial and administrative so that the Judiciary can 

become the active gatherer of evidence, and focus the objectives and nature of an inquiry. The 

Act enables the Judicial Conference to establish unifonn procedures to adjudicate judicial 

conduct, to revie,v judicial conduct and disability decisions by the circuit conncils, and to 

monitor compliance 1,vith the Act and the rules of procedure through regular oversight. 

The Act vests primary responsibility for complaint administration in chief judges of 

circuit and national courts, and in the circuit councils (or equivalent bodies) of the courts over 

1,vhich those chief judges preside. It draws upon the credibility and moral authority that judges 

have in the eyes of their judicial peers. Likewise, it taps judges' nnderstanding of judicial work 

and of what courts require in order to rundion properly. By vesting authority in the JUdiciary, 

the Act draws upon the collective experience offederal judges to ensure acconntability without 

sacrificing the institutional independence that is essential tc the judicial function. The Act uses 

the si"e and layering of the federal Judiciary so that any complaint can receive independent 

review by judges who are not colleagues ofthe judge who is under scrutiny. 

The Judicial Conduct and Disability complaint process is interrelated with the Code of 

Conduct for United States Judges. The Judicial Conference adopted the Code of Conduct in 

1973 as the standard of conduct for federal judges, and since then has amended the Code several 

times. Behavior that violates the Code of Conduct may constitute "conduct prejudicial to the 

'Professor Stephen Bllrbank has thoughtfully described the congressional deliberations on the 

Act. Stephen B. Burbank, Procedural Rulemaking Under the Judicial Councils Reform and 

Judicial Conduct and Disability Act of 1980, 131 U. Pa. L. Rev. 283, 293 (1982). 

2 
12 

effective and expeditious administration ofthe business of the courts" under the Act. The 

J ooidal Conference has explicitly stated that thc Codc of Conduct '"provides standards of 

conduct for application in proceedings" under the Judicial Conduct and Disability Act. The 

Code of Conduct and the disciplinary system set forth in the Act are therefore complementary 

and operate in tandcm. 

As you might imagine, most complaints arise because someone-generally a 

disappointed litigant or criminal defendant---{juestions a judicial decision or is dissatisfied with 

thc result. Such complaints must be dismissed under the Act because they relatc to thc mcrits of 

a case.2 Experienced attorneys are familiar with the appeals process, but pro se litigants do not 

have the benefit of counsel and often seek to redress an adverse determination through the 

conduct and disability complaint process. More than ninety percent of complaints are filed by 

prisoncrs and othcr pro se litigants, and most complaints are merits-related. As a result, cven 

though a substantial nwnber of complaints are filed, very fe,v are found to warrant remedial 

action. 

Complaint Process 

Before I address the Breyer Committee Report,3 I would like to describe how the Act 

currently functions. The process begins with a complaint alleging that a judge engaged in 

'"conduct prejudicial to the effective and expeditious administration ofthc busincss of the 

2 The entire panoply of rights under the appeals process is available for the correction of any 

merits-related errors. Generally, failure to recuse without more is not viewed as misconduct. 

But failure to recuse can generate a cognizable misconduct complaint if the recusal decision was 

based on an improper or illicit motive, such as a bias or prejudice against a person or a certain 

group of people. Moreover, any party may appeal a reeusal decision, sometimes even during the 

pendency of a casco 

Thc Judicial Conduct and Disability Act Study Committee, Implementation of the Judicial 

Conduct and Disability Act of 1980: A Report to the Chief Justice (2006). 

3 
13 

courts," or that, due to a mental or physical disability, the judge "is unable to discharge the duties 

of office." II. complaint can be filed by any person, including any member of the public and any 

member of Congress. Even if no one files a complaint, the chief circuit judge 4 is required to 

initiate a complaint whenever he or she becomes aware of improper conduct. After a complaint 

is filed, the chief circuit judge may conduct a limited, informal investigation, but may not make 

findings offact about any matter that is reasonably in dispute. Ifthere are reasonably disputed 

factual issues, the chief circuit judge must appoint a special committee to investigate. 

If no special committee is warranted, the chief circuit judge may then "conclude" the 

complaint due to intervening events (such as resignation) or appropriate corrective action has 

been taken. The chief circuit judge may also "dismiss" the complaint if it has no actionable 

allegations, is related to the merits of a case, is frivolous, raises no inference of misconduct or 

disability, is unprovable, lacks any factual foundation or is conclusively refuted by objective 

evidence, is filed in the wrong circuit, or is "otherwise not appropriate for consideration under 

the Act."s As noted, however, if the complaint is not concluded or dismissed, the chief circuit 

judge must appoint a special committee (comprising the chier circuit judge and equal numbers of 

circuit and district judges in that circuit), to investigate the allegations. When circumstances 

warrant, the chief justice, at the request of a chief circuit judge or circuit council, may transfer 

the invcstigation and resolution of a complaint to a different circuit from (he one where (he judge 

in question sits. 

4 Throughout the process, the chief circuit judge has specialized responsibilities under the Act. 

Of course, when the chief circuit judge is the subject of the complaint, a different judge ofthe 

comt acts in this role. 

'28 U.S.c. § 352(b); Judicial Conference of the United States, Rules for Judicial-Conduct and 

Judicial-Disability Proceedings, Rule 11 (c) (2008). 

4 
14 

Following an investigation, the special committee submits a report with factual findings 

and recommendations to the circuit council, the basic governing body of a circuit under 

28 U.S.C. § 332. The circuit council consists of the chief circuit judge, chief district judges and 

other experienced judges. The special committee is authorized to exercise the circuit council's 

subpoena power when invcstigating complaints undcr the Act. After review of the special 

committee's report, the circuit council may dismiss or conclude the complaint, return it to the 

special committee for more investigation, refer the complaint to the full Iudicial Conference, or 

take remedial action. 

'tbe Act allows the complainant or the judge to petition the Judicial Conference to review 

the circuit council decision. The Iudicial Conference delegated this review function to the 

Iudicial Conduct and Disability Committee, but retains the authority to review all complaints 

considered by the Judicial Conduct and Disability Committee. I will comc back to the review 

process. 

The complaint consideration process first seeks to determine the facts and whether 

misconduct occurred or whelher ajudge is disabled and cannot fully pcrform his or her judicial 

functions. If the complaint allegations are substantiated, the circuit councilor Iudicial Conduct 

and Disability Committee orders an appropriate remedy. Remedial actions include ordering the 

temporary suspension of new case assignments, issuing a public or privale censure or reprimand, 

asking a judge to retire voluntarily, and certifying ajudge's disability so that a vacancy is 

created. 6 Ifthe complaint is against a magistrate judge or bankruptcy judge, remedies can also 

include initiating the statutory process to remove that judge from office. If a circuit council finds 

, The fonnal struclure and sanctions set forth in thc rulcs also serve to reinforce conduct nomlS 

and can induce voluntary remedial action. 

5 
15 

that an Artiele III judge may have engaged in conduct that could constitute grounds for 

impeachment, it must rcfer the complaint directly to the Judicial Confcrcnce. Ifthe Jl.ldicial 

Conference determines that impeachment may be warranted, it must certifY that determination 

and transmit the record to the House of Representatives. "Cnder the Act, the Judicial Conference 

may recommcnd the impeachment of a judge convicted or a felony without waiting for refcrral 

or certification from a circuit council. The rules expanded on the Act's reference to possible 

criminal conduct. For example, "[i]fthe [special] committee's investigation concerns conduct 

that may be a crimc, the committee must consult with the appropriate prosecutorial authoritics to 

the extent permitted by the Act to avoid compromising any criminal investigation." 

To protect complainants and witnesses, as well as subject judges, the process is 

confidential until a final order is issued and the period for review expires. Confidentiality is 

important becausc it encourages cooperation with investigation of the underlying allegations, and 

protects complainants and witnesses (who may include conrt employees and attorneys). All final 

orders under the Act are made public. Orders must give reasons for a complaint's disposition. 

The judge's name must be disclosed iftherc is a remedy ordered that cxceeds private censurc or 

reprimand. Publishing orders promotes transparency, develops precedent, enables the orders to 

function as a deterrent, and builds public confidence. 

Breyer Committee 

In 2004 Chief Justice William Rehnquist appointed a committee, chaired by Justice 

Stephen Breyer, to review the Act's implementation and to report findings and 

recommendations. The Judicial Conduct and Disability Act Study Committee, kno,vn as the 

Breycr Connnittee, issued its report in 2006 and found that the Act's implementation was largely 

6 
16 

successful, with a two to three percent error rate out of the 2,000 complaints it revie\ved. But the 

Commillee found that five of the seventeen highly visible ~ases it studied wcrc "problematic." 

Problems included a failure to appoint a special investigating committee to resolve disputed 

facts, and a failure of chief circuit judges to initiate a complaint upon learning of improper 

. conduct. 

The Breyer Committee issued twelve recommendations to improve implementation of the 

Act, judicial accountability and transparency: 

1 , The Judicial Conference should authorize tbe Committee on Judicial Conduct and Disability to 

provide ,ldvice and counsel regarding implementation of the Act. 

2. In this advisory role, the Committee on Judicial Conduct and Disability should emphasize the 

desirability of identifying complaints, transferring complaints to other circuits for investigation, 

and appointing special committees. 

3. The Commillee on Judicial Conduct and Disability should create an orientation program for 

new chief circuit judges and an onlinc compcndium with suggested approaches and procedures, 

as well as guidance on the Act's terms. 

4. The Committee on Judicial Conduct and Disability should make illustrative chief circuit judge 

and circuit council orders available online. 

5. The Committee on Judicial CondLlct and Disability shonld cncourage courts to create 

commiltees oflocallawycrs who can serve as intennediaries between individual lawyers and the 

formal complaint process. 

6. All courts should provide information on how to file a complaint on the home page of the 

court's website and take other steps to publicize the Act. 

7. All courts should submit timely !lnd accurate information about complaint filing and 

terminations to the Administrative Office. 

8. The Committee on Judicial Conduct and Disability's annual reporting should tally the number 

of special committees appointed each year. 

9. The Committee on Judicial Conduct and Disahility should periodically monitor the Act's 

administration. 

7 
17 

10. The Federal Judicial Center should seek to ensure all judges understand the Act and its 

procedures. 

11. The Judicial Conference should make clear it has the authority to review the Judicial Conduct 

and Disability Committee's decisions on appeals from circuit council orders. 

12. The councils and the Judicial Conference should consider programs to make advice available 

by phone ( or otherwise) for chief circuit judges. 

The Judicial Conference of the United States endorsed lhe full complement of the Breyer 

Committee's recommendations. Of the implementation actions taken, the most important change 

was the 2008 adoption of uniform mandatory rules governing the complaint process. Prior to the 

2008 rules, each circuit council created its own complaint procedures, under the guidance of the 

Judicial Conference's Illustrative Rules. The Breyer Committee cited this lack of procedural 

uniformity. The Judicial Conference agreed, and in 2008 adopted uniform mandatory rules of 

proeedurc. In addition, thc Confcrence expanded the authority of the Committee on Judicial 

Conduct and Disability. These developments were significant because in addition to mandating 

national uniformity, the Conference established oversight and review, centralized supervisory 

authority, created a clear hierarchy of accountability, and improved transparency of the judicial 

conduct complaint process. 

The Act authorizes chief circuit judges to initiate complaints. The uniform rules expand 

on the Act by prescribing circumstances in which chief circuit judges must initiate a complaint 

on their own. The rules provide for the chief circuit judge to conduct an informal investigation 

to determine whether a complaint should be initiated. As noted, the uniform rules also require 

the appointment of a special investigatory committee if material facts are reasonably in dispute. 

Th", predecessor illush'ative rules did not clearly require chierjudge~ to act in ~uch 

circumstances. 

8 
18 

Significantly, the uniform rules impose up to three levels ofreview on decisions by the 

chief circuit judge: circuit councils review the chief circuit judge's orders, the Committee on 

Judicial Conduct and Disability revie\vs certain circuit council actions/ and the Judicial 

Conference may review the decisions of the Committee on Judicial Conduct and Disability. 

The uniform rules now allow thc Committec on Judicial Conduct and Disability to review 

any circuit council order to determine if a special committee should be appointed. The 

Conunittee on Judicial Conduct and Disability may exercise "reach down" authority to review 

whether a special committee should be appointed, even irno party seeks review. Moreover, the 

Conunittee may retnru any reviewable matter to the circuit council with directions to undertake 

an additional investigation. In extraordinary circumstances, the Conunittee may undertake its 

own investigation on reviewable matters, exercising the powers of the Judicial Conference. 

Responding to the Breyer Committee Rcport, the Judicial Confcrcnce cxpanded the 

oversight role of the Conunittee on Judicial Conduct and Disability to include monitoring of 

orders issued by chief circuit judges, circuit councils, and national courts under the Act. This 

enables the Judicial Conduct and Disability Commi(lee 10 ~jep in to assist the cireuit councils if 

requirements are overlooked, and to ensure that the Act is functioning properly. The Cormnittee 

on Judicial Conduct and Disability annually reviews orders and other complaint-related 

documents for compliance with the Act, in a manner similar to the BTeyer Committcc's revicw. 

'Inc Committee on Judicial Conduct and Disability receives infonnation on all complaint-related 

orders and examines a number of them to confirm that all proper procedures were followed, and 

7 When a complainant petitions for review, the Committee on Judicial Conduct and Disability 

must review any decision by the ciTcuit council when a special committee was appointed. Thc 

Conunittee must also review a decision not to appoint a special committee if a circuit council 

member dissented on the grounds a special conunittee should have been appointed. 

9 
19 

to identify any orders that are novel in their underlying facts or could serve as models, and any 

documents associated with "high-vi~ibility" complaints that could particularly affect the public's 

confidence in the Judiciary. The Committee reviews each such complaint for compliance with 

the Act and the procedural rules. 

To facilitate review, the Judicial Conference created a mandatory proccdure for electronic 

submission of complaint-related documents to the Committee. The Committee on Judicial 

Conduct and Disability also arranged for adjustments in the software that compiles statistics on 

judicial conduct and disability complaints to makc tabulated data public each year. 

The Committee on Judicial Condnct and Disability is also charged with informing the 

public and the bar about the Act, its procedures and their rights under the Act. Now every circuit 

court website has a link on its homepage to information on judicial conduct and disability. The 

Committcc on Judicial Conduct and Disability created a guide for the public to assist \vith filing 

a complaint, which is readily accessible on the uscourts.gov website. That website has a section 

devoted to judicial conduct and disability. Committee decisions along with other information on 

the complaint proces~ are now posted in this area of the uscourts.gov website. A majolity of 

circuit courts also post published complaint-related orders online to make them more accessible 

to the public. Finally, chief circuit judges are in some extraordinary circumstances authorized to 

disclose the existence of a complain! before its rcsolution. These efforts seek to educat~ th~ 

public on enforcement ofthe Act and to improve transparency. 

As the Breyer Committee recommended, the Committee on Judicial Conduct and 

Disability is now also an advisory body. The Committee on Judicial Conduct and Disability is 

frcquently consulte<.l by chief circuit judges and circuit council members on complaint-related 

10 
20 

issues-for example, whether in a given case a complaint should be initiated, whether a special 

cummi(tee should be appointed, whether a complaint should be transfened to another circuit, and 

how to address other issues. 

To further aid cruef circuit judges confronted with possible judicial misconduct or 

disability, we created a compendium, the Digest of Practical Advice. This new resource draws 

upon extensive interviews of cunent and former cruef circuit judges with long experience in the 

administration of the Act. The JUdiciary has provided educational programs on the Judicial 

Conduct and Disability Act for judges and staff, including presentations, one of which was an 

orientation seminar on the 2008 Rules. 

In addition to this guidance, the Committee on Judicial Conduct and Disability is 

developing the Digest o.f Authorities, a body of precedent in judicial conduct and disability cases. 

Wc expect this volume to be available this summer, and it will be published online. Thcsc 

opinions will not only provide advice, but serve as precedent for future cases. They create a 

common law, a body of precedents for all who are charged under the 1980 Act with adjudicating 

judicial conduct and disability complaints. 

Self-regulatory systems impose significant responsibilities on those who must enforce the 

regulations. This disciplinary system is self-regulatory in a legitimate effort to preserve judicial 

independcncc. As stewards, the Judidary recognizes that it is essential to cuntinually monitor 

and assess our disciplinary system to ensure both its eHectiveness and adherence to the 

appropriate standards and procedures. The Committee on Judicial Conduct and Disability sits at 

the intersection of judicial accountability and judicial independence. We want to make certain 

that our disciplinary system holds judges accountable for misconduct, but at the same time 

II 
21 

Mr. COBLE. Thank you, Judge Scirica. 

Judge Sentelle? 

TESTIMONY OF THE HONORABLE DAVID B. SENTELLE, SENIOR JUDGE, UNITED STATES COURT OF APPEALS FOR THE 

DISTRICT OF COLUMBIA 

Judge SENTELLE. Good afternoon. 

Mr. COBLE. Check your mike, Judge. 
22 

Judge SENTELLE. I’m not accustomed to that. Thank you. 

Good afternoon to the Chairman and Ranking Member Watt. 

Both of you were kind enough to acknowledge our long friendship. 

As you might guess from looking, Chairman Coble’s and mine is 

longer than mine with Ranking Member Watt, but almost as long. 

And since the commission of this hearing, another old friend, 

though not near the venue, the young gentleman in the front row 

there, Representative Holding has come in, whose hospitality I’ve 

enjoyed in Raleigh. 

So to all the other Members of the Committee, I’m sure I’d like 

you equally well if I knew you. [Laughter.] 

Mr. COBLE. Don’t be too sure. 

Judge SENTELLE. I am Dave Sentelle. I’m a judge of the United 

States Court of Appeals for the District of Columbia Circuit. 

In February of this year, I completed my term as chair of the Executive Committee of the Judicial Conference of the United States, 

succeeding Judge Scirica. I also completed a 5-year term as chief 

judge of my court. 

Although this hearing is, as I understand it, directed toward an 

examination of the judicial conduct and disability system, and my 

colleague Judge Scirica is the chair of the most relevant committee 

on that—and he’s obviously the best qualified to discuss it. But our 

conduct and disability system does not operate in a vacuum. It’s 

part of an interconnected web of judiciary programs regarding ethics, employee conduct, oversight, audit, review, complaint and dispute resolution, development and implementation of best practices. 

Not infrequently, matters that are discovered in one of those 

areas lead to others so that both in practice and perhaps in the 

minds of those who set up the hearing. So my testimony on behalf 

of the conference today will outline briefly some of the work in 

those other areas and in a bit more detail in the written submission. I hope it will be helpful to the Subcommittee in its consideration. 

An independent judiciary is one of the most valuable and admired assets of our 235-year-old democracy. In order to help preserve independence, our branch has been granted considerable 

powers of governance and oversight. We recognize that with that 

power comes responsibility and accountability, including the obligation to be able to explain ourselves to the public and to this Congress. 

The Judicial Conference reaffirmed this guiding principle by 

identifying accountability as one of the six core values underlying 

the strategic plan for the Federal judiciary, which also happens to 

be known as the Breyer plan, although that’s named after District 

Judge Breyer rather than Justice Breyer. 

Specifically, the plan requires ‘‘stringent standards of conduct, 

self-enforcement of legal and ethical rules, good stewardship of 

public funds and property, effective and efficient use of resources.’’ 

I’ll give you a brief overview of the checks and balances that we 

have in place to ensure that the administration of the judicial 

branch is accountable. 

To understand accountability mechanisms in the judiciary, it’s 

important to recognize that our system is specifically designed to 
23 

reflect and capitalize on the unique nature and structure of judicial 

administration. 

The decentralized nature of judicial administration is designed to 

support and complement independent judicial decision-making at 

the local court level where the judicial power is vested in individual 

judges and panels of judges. Local court mechanisms include, within appellate, district, and bankruptcy courts, chief judges and court 

unit executives who are primarily responsible for the review, oversight, and integrity of the court operations. 

Certain duties and responsibilities are statutory responsibilities 

of the chief judge, or the court as a whole. Other authorities are 

delegated to the courts by the Director of the Administrative Office 

of the United States, what we refer to as the AO, but in accordance 

with statute, rules of court, Judicial Conference policies, and circuit 

judicial orders. 

As my time is running, I will skip and tell you that there is a 

little further detail in the written submission. Our regional oversight responsibilities within the court reside in the circuit judicial 

councils. They carry out major oversight responsibilities. Each 

council has broad authority to make all necessary and appropriate 

orders for effective and expeditious administration of justice within 

the circuit. 

The judicial councils play an important role in the administration 

of the judicial disability and misconduct complaint system. They 

hear the appeals from the chief judges from those complaints. 

On the national level, the national entities and governing bodies 

include the Judicial Conference of the United States, which develops policies, provides support for courts, and performs necessary 

oversight. I see that my stop light is on, but I’ll rush to say that 

that includes an appellate and a trial judge from each circuit. 

I have further information in my written submission, and I, of 

course, stand ready to answer questions and to meet with the Committee at any time. 

Thank you. 

[The prepared statement of Judge Sentelle follows:] 
24 

JUDICIAL CONFERENCE OF THE UNITED STATES 

STATEMENT OF 

JUDGE DAVID B. SENTELLE 

U.S. COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA 

BEFORE 

TIlE SUBCOMMlTfEE ON COURTS, INTELLECTUAL PROPERTY 

AND THE INTERNET 

COI'IfMtTIEE ON THE JUDICIARY 

UNITED STATES HOUSE OF REPRESENTATIVES 

ON 

'"AN EXAMINATION OF THE JUDICIAL CONDUCT AND DISABILITY 

SYSTEM" 

April 25, 2013 
25 

Good day, Mr. Chainllan and mcmbers ofthe Committcc. 1 am Judge David Sentelle of 

the United States Court of Appeals for the District of Columbia Circuit. In February of this year, 

T completed my tenn as Chair of the Executive Committee of the Judicial Conference of the 

Unitcd Statcs. In 1 ;ebruary, I also completcd a five-year term as chief judgc of my comt. 

Today's hearing is entitled, "An Examination of the Judicial Conduct and Disability System" and 

my colleague, Judge Anthony Scirica, as the chair of the Judicial Conference Committee on 

Judicial Conduct and Disability, is obviously best qualified to discuss that topic. But our 

conduct and disability system does not operate in a vacuum. Rather, it is part of an 

intercollllected web of Judiciary programs regarding ethics, employee conduct, oversight, audit, 

review, complaint and dispute resolution, and development and implementation ofbcst practices. 

Not infrequently, matters that are discovered in one of these areas lead to others, both in practice 

and perhaps in the minds of Congressional Committees. Therefore, my testimony today on 

behalf of the JudiL1al Conference of the United States will outline SOllle of our work in thesc 

other areas, which I hope will be helpful to the Subcommittee. 

An independent Judiciary is onc ofthe most valuable and admircd assets of our 235-

year-old democracy. In order to help preserve. independence, our branch has been granted 

considerable powers of self-governance and oversight. With such power, however, comes 

respOl1sibilityand accountability, including thc obligation to explain ourselvcs to the public and 

to Congress. The Judicial Conference reatlinned this guiding principle by identifying 

Accountability as one of the six core values underlying the Strategic Planfor the Federal 

Judiciary, adopted in September 2010. Specifically, the Plan requires "stringent standards of 

conduct; self-enforcement oflegal and ethical rules; good stewardship of public funds and 

property; effective and etlieient use of resources"j Today, I will provide a brief overview of 

the robust systcm of checks and balances that are in place to ensurc that thc administration of the 

judicial branch oIlhe U.S. government is accountabk 

I Strategic Plan for the Federal Judiciary, Septemher 2010, page 2. See uh(), Strategy 7.1, page 

16. 
26 

Judiciary Mechanisms for Oversight and Accountability 

To understand accountability mcchanisms in the Judiciary, it is important to recognize 

that our system is specifically designed to reflect and capitalize upon the unique nature and 

structure of federal judicial administration, Unlike executive branch entitie" the federal 

J uiliciary is not a single agency, and critical administrative authorities and rcsponsibilities are 

carried out locally, as well as regionally and nationally. The decentralized nature of judicial 

administration is designed to ,upport and complement independent judicial decision-making at 

the local COUlt level where thcjuclicial power is vested in individual judges ,md pand, of judges. 

28 U,S.C. §§ 43(b), 132(b), 151. 

Local Accountability Mechanisms 

Within appellate, district, and bankruptcy comls, chief judges and courl unit executives 

are primarily responsible for the review, oversight, and integrity of court operations. Certain 

duties and responsibilities are the statutory responsibility of the chief judge or the court as a 

whole; other authorities arc delegated to the COUlts by the Director ofthe Administrative Office 

of the U.S, COutts (AO), Each court carries out its business independently, but in ac{;Ordan~e 

with statutes, rules of court, Judicial Conference policies, and circuit judicial council orders. For 

administrative purposes, cach court has a chief judge, whose responsibilities include oversight 

activities in areas that do not impinge on the judicial independence of the court's judges. 

Every federal cOUIt is held responsible for the effective stewardship of all public 

resources under its control and for appointing and removing its employees. Each court is 

required to have clearly defined procedures for making financial management decisions and 

producing timely financial reports. Courts must maintain managcmcnt plans against which court 

operations can be monitored including, for example, a budget spending plan, internal controls 

plan, jury management plan, employment dispute resolution plan, Criminal Justice Act plan, and 

others timt guide ptlrf0l111anCe and effective, accountable administrative operations. 

2 
27 

Regional Oversight Responsibilities 

Regionally, circuit judicial councils carry out major oversight responsibilities? Each 

council has broad authority to "make all necessary and appropriate orders for the effective and 

expedition. administration ofjmtice within its circuit." 28 U.S.c. § 332(d)(1). As Judge Scirica 

has already described, the judicial councils play an important role in the administration of the 

judicial disability or misconduct complaint system. Tn addition, the councils perform an array of 

other oversight responsibilities related to circuit governance and operations. To ensure 

enforcement of council mandutes, Judiciary officers and employees of the circuit are staultorily 

required to "promptly carry into effect alI orders of the judicial council." 28 U.S.c. § 332(d)(2). 

lIrational Entities 

National entities and governing bodies, including the U.S. Judicial Conference and the 

AO, develop policies, provide SUppOit for courts, and perfOlm necessary oversight. The Director 

of the AO is "the administrative officer of the courts," 28 FS.C. § 604(a), and is vested with 

various powers and responsibilities for administering the branch's lunctions. In addition to 

coordinating the Judiciary audit program, the AO maintains an integrated management and 

financial planning system, with rigorous financial controls governing budget fonnulation and 

execution. The AO also conducts reviews and assessments of certain court. operations and 

judicial workloads to enhance operational effectiveness and economy. National standards and 

guidelines are promulgated in an official administrative policy manual, and the AO prepares 

supplemental court guidance materials. The AO also is instrumental in conducting investigations 

of allegations ahout fraud, waste, and abuse regarding Judiciary operations that are raised hy 

judges, Judiciary personnel, or members of the public. 

2 For each circuit, the membership of circuit judicial councils includes the chief judge of the 

court of appeals plus an equal number of circuit and district judges. Most circuit judicial 

councils also have non-voting bankruptcy judge and magistrate judge observers. 
28 

The Director of the AO is appointed by the Chief Justice and serves under the supervision 

and direction ofthe Judicial Conference of the United States. 28 U.S.C. §§ 601, 604(a). The 

Judicial Conference is the policy-making body for the federal JUdiciary, 28 U.S.c. § 331, and 

much of its work, like that in Congress, is conducted by committees. Proposed policies are 

analyzed and considered at the committee level. The Judiciary's audit, review, and investigative 

assi~tance activitie, are overseen by the Judicial Conference Committee on Audits and 

Administrative Office Accountability. 

External Oversight 

Tn ad(\ition to these internal oversight mechanisms, Congress provides external oversight 

of Judiciary budgets, administrativc functions, and operations. Today's healing is all example of 

Congress exercising its legitimate oversight role specifically to hear abont how onr selfgovernance is functioning, to ask questions about our accountability systems, and to discuss 

suggested actions that the Judiciary can take to address any concerns you may have. Judiciary 

representatives are often called upon to testii)' before other Congressional committees that have 

oversight responsibilities over other aspects of our operations, including for example the 

Judiciary's budget requests and courthouse construction. In addition, the Government 

Accountability Office (GAO) regularly conducts studies of Judiciary operations. ""fine GAO 

studies involving the federal Judiciary are either underway or recently completed. This year, the 

JUdiciary has cooperated with GAO reviews on the following array of topics: shared 

administrative services, courthouse planning and use, patemlitigation, jndicial survivor benefits, 

tile bankruptcy oHarge linallcial films, and other matters. 

Judiciary Audit Programs 

28 U.S.C. § 604(a)(11) provides that the Director ofthe AO ~hall audit vouchers and 

accounts of the courts, the Federal Judicial Center, the offices providing pretrial services, and 

their clerical and administrative personnel. This responsibility requires the Director to audit the 

4 
29 

courts' financial transactions to ensure thc completeness, existence, accuracy, rights and 

obligations, valuation, and presentation of financial reporting. To carry out this function, the 

AO's Office of Audit oversees comprehensive audits of Judiciary funds through cyclical 

financial audits of Judiciary units, annual financial audits of judiciary pnlgrams, and audits of 

major program expenditures, activities, and systems. 

Most of these audits, induding the cyclical audits of court units, audits of Criminal 

Justice Act grantees, bankruptcy trustees and debtors, and audits of the Judiciary's appropriation 

accounts, are conducted by independent certified puhlic accounting (CPA) firms. Thcse audits 

are performed in accordance with generally accepted auditing standards, and the standards 

applicable to financial audits contained in the Government Auditing Standards, issued by the 

Comptroller General ofthe United States. Use of CPA firms for these audits provides the 

assurance that the Judiciary has obtaincd an indcpendent auditor's opinion on the related 

financial statements. 

In addition to these regular audits, managers of federal court units, including federal 

defender organizations, may request special audits of their units or programs. The most common 

types of special audits are "change of clerk" and "change of financial administrator" audits. 

These audits provide assurance that new unit executives and financial administrators inherit 

financially sound operations. The AO may also initiate a special audit in certain circumstances if 

an issue is identified in an area for which the AO ha~ oversight or audit responsihilities. Special 

financial audits are usually performed by an experienced stafftinancial auditor from the AO's 

Office of Audit. 

Upon cDmpletion of all audits, final audit reports are provided to the court unit's chief 

judge, court unit executives and circuit executives, and relevant AO program managers and 

offices. These reports arc used by the auditee to implement recommendations C0l1ll1l1111icateti in 

the report to address audit findings. In order to ensure that court units and other audited entities 

evaluate and implement corrective action to address audit findings or other issues identified in an 
30 

audit, the AO, under the gLridance oflhe Committee on Audit and Administrative Offiee 

Accountability, has instituted a follow-up program in which auditees are asked to report on and 

verify the implementation of corrective actions. The Office of Audit tracks all findings 

identified in final audit rcports until it has been verified that all issues have been resolved. Opcn 

findings and reports may be escalated to the relevant circllit judicial council for resolution if not 

addressed at the local level. In addition, all previous findings and corrective actions are 

Tcviewcd and asscssed as part of the next regularly schcduled audit. 

Perf0n11anCe audits also are conducted. This t}1)e of audit provides infonnation to 

improve program management and facilitate decision-making by management, as well as to 

oversee or initiate corrective actions and improve public accountability. Pertormance audits are 

gcnerally national in scopc and focus on programs, activities, or systems that support all of the 

courts. Typically, thcy aTe periormed at the requcst of cithcr AO Or eourt unit managcmcnt to 

review a specific operation or program or to ensure that a law, standard, or policy is adhered to 

or is operating effectively. Performance audits can be conducted by internal audit staff or by 

independent CPA finns, depending On the nature of the audit. 

Program Reviews 

The AO conducts 8 broad array of management and program reviews of conrt units and 

fedcral defcndcr organizations. Thesc rcview programs provide advice to court and defender 

organization managers regarding the effectiveness of their organizations, and determine whether 

the policies of the Judicial Conference are being followed. Review programs also assess whether 

AO responsibilities that have been deltlgated to the courts by the AO Director are being carried 

out in compliance with relevant policies. 

Program reviews may be broad in scope or narrowly focused - they may address the 

operations and functions of the organization; human resource management; bndget and finance; 

propelty management; procurement; jury administration; COUlt repOiting; court interpreting; and 
31 

information technology operations, management, and security. Most program reviews are 

conducted on site and include observations of office operations, interviews with key staff, and 

reviews of appropriate court records and files. 

Most program reviews conclude with a set of findings and recommendations that are 

discussed " .. ith the court unit while they are in a preliminary stage, and are then included in a 

final report. Implementation of program review recommendations is generally the responsibility 

of the court unit or defender organization, in consultation with the relevant AO program office, 

which is also available to provide assistance as ncedcd. 

Investigations of Allegations of Fraud, Waste, and Abuse 

Tn keeping with the decentralized nature of the federal Judiciary, the primary 

responsibility for addressing allegations of fraud, waste, or abuse rests with cach Judiciary 

organization ~ at the local, regional, and national levels. The Committee on Audits and 

Administrative Office Accountability works with courts to ensure that local mechanisms for 

reporting and investigating fraud, waste, or abuse allegations are established and that these 

mec:hanisms are communicated to all Judiciary employees. For those who may not feel 

comfortable reporting an allegation locally, complaints may be lodged at the circuit level or with 

thc AO, which maintains a confidential fraud, waste, and abuse online systcm that is available to 

all Judiciary employees and contraGiors. 

Since 1988, the Judicial Conference has authorized the Director ofthe AO to provide 

investigative assistance to courts and federal public defender organizations, upon request of a 

chief circuit, district, or bankruptcy judge. The AO may receive allegations pertaining to the 

federal courts and its employees fi·om court Or AO employecs, from exe(;utive branch agencies 

such as the Department of Justice, and from GAO's fraud hotline. Allegations of impropriety 

may also he received hythe AO from memher;; of Congress and the general public. If the 

7 
32 

allegation involves court behavior, the AO brings these matters to the chief judge of the invol ved 

court and offers assistance, including investigatory assistance. 

Although CDurts may elect to conduct their own investigations of alleged improprieties, 

the AO's investigation program was created to provide professional, impartial, fact-finding 

services. The investigation program enables Bn involved court to determine if a matter requires 

its administrative attention, generally by way of corrective action or, in some circumstances, 

referral to law enforcement officials. The AO follows up with the court regarding its 

investigation aTld resolutions are reported to the Committee on Audits and Administrative Office 

Accountability. 

Whistle blower Protections for Judiciary Employees 

To protect whistleblowcrs in the courts, in September 2012, the Judicial Conference 

approved an amendment to the Judiciary's Model Employment Dispute Resolution (EDR) Plan 

to provide more explicit protections for whistleblowers. A new chapter in the Model EDR Plan 

includes a policy statement that employees with certain personnel authority shall not take 

adverse action against an employee who 111 good faith discloses what that employee believes is 

evidence of a violation of any law, rule, or regulation, as well as certain other conduct 

constituting gross mismanagcment or waste. The new chapter also defines adverse actions and 

describes reporting responsibilities, the investigation of allegations, and disciplinary actions. 

Claims of retaliation are adjudicated through the plan's dispute resolution procedures. The AO 

also has whistleblower protections for its employees, established pursuant to the AO Personnel 

Act, Pub. L. No. 101-474. 

Conclusion 

Acc~untability is a core value of thc federal Judiciary, and a comprehensive array of 

Judiciary policies, procedures, and governancc mechanisms provide thorough oversight and 

review of court and federal defender operations. A multi-ticrcd system of comprehensive checks 
33 

Mr. COBLE. Thank you, Judge Sentelle. 

Professor Hellman, as I mentioned earlier and I will reiterate it, 

you are no stranger to Capitol Hill. Good to have you back here on 

the Hill. 
34 

TESTIMONY OF ARTHUR D. HELLMAN, SALLY ANN SEMENKO 

ENDOWED CHAIR, UNIVERSITY OF PITTSBURGH SCHOOL OF 

LAW 

Mr. HELLMAN. Well, thank you so much, Mr. Chairman, for holding this hearing, for giving me the opportunity to share my 

thoughts on this subject that I’ve been studying and writing about 

for more than a decade, and thank you especially for those generous words of welcome. 

In my view, the system of decentralized self-regulation established by Congress in 2008 is sound and does not require fundamental restructuring. At the same time, the experience of the past 

few years has revealed a number of gaps and deficiencies in the 

regulatory regime that were not apparent before and that warrant 

attention today. 

Some of these may be appropriately dealt with through revision 

of the rules that were promulgated by the judiciary in 1980 that 

have been mentioned here already. But others, in my view, should 

be addressed by amendments by Congress to Title 28. 

In my statement, I suggest statutory amendments dealing with 

three aspects of the system. One, transparency and disclosure. 

Two, disqualification of judges. Three, review of the orders issued 

by chief judges and circuit councils. Now why those three elements? 

One reason is that in each of those areas, the judiciary has promulgated rules, like the 2008 rules, that reflect sound policy but 

are in conflict or tension with the statutory language. And I will 

suggest to you that it is not healthy for the judiciary to be operating under rules that are or that appear to be at variance with 

the laws passed by Congress. That’s true in any situation, but it’s 

particularly unfortunate when the rules regulate a matter as sensitive as judicial ethics with the possibility of imposing sanctions 

on Federal judges. 

Beyond that, each of these elements is, in a sense, structural. 

They determine who makes the decisions and whether the public 

and Congress itself are getting enough information to know with 

confidence whether the system is working as it should. 

Now having said that, I don’t mean to minimize the role of the 

judiciary in administering the system and improving that system. 

On the contrary, in my statement, I suggest a number of steps— 

quite a few, actually—that the judiciary can take today or very 

quickly without any further authorization by Congress. But I do 

think that for the judiciary to do its job right that it does need 

some help from Congress in the form of amendments to Title 28. 

First, disclosure and transparency. From the beginning, the administration of the Act has been characterized by a lack of transparency and a bias against disclosure. But to some degree, the Act 

itself may be at fault because it includes a strict provision requiring confidentiality. 

Now notwithstanding that confidentiality requirement, the 2008 

rules include a new provision that authorizes the chief judge to disclose the existence of a proceeding under the Act when necessary 

to maintain public confidence in the administration of the Act and 

the Federal judiciary’s ability to redress misconduct. I think that 

is a really good idea and that Congress should ratify it and build 

upon it, and there are some details on that in my statement. 
35 

I’ll skip now to disqualification. On disqualification, there are 

two kinds of problems. The statute itself provides only limited guidance on when judges should disqualify themselves from taking part 

in particular misconduct proceedings. 

The current rules have quite a bit to say on the subject, but one 

provision of those rules appears to be inconsistent with the statute, 

and others, in my view, do not adequately protect against conflict 

of interest. 

I think that the rules on disqualification should be part of the 

statute and that there’s a simple model, Section 455, which deals 

with litigation. Everybody is familiar with that. 

Finally, review of chief judge and circuit council orders. There’s 

a very strong limitation on review in the statute. The consequence 

of this has been that some high-visibility cases, the cases that 

shape public perceptions of whether the Act is working, have gone 

unreviewed. I think those can and should be dealt with. 

I’ll summarize and conclude by saying that all of the suggestions 

made in that unfortunately lengthy statement of mine—all of those 

suggestions are incremental. What they represent is the best practices developed by the judiciary, the institutional judiciary and 

some individual judges over the years. 

And I think that by updating the Act to reflect these practices 

Congress can enhance accountability while fully respecting and 

maintaining the independence of the judiciary. 

Thank you. I’d be happy to answer questions. 

[The prepared statement of Mr. Hellman follows:] 
36 

April 22, 2013 

Statement of 

Arthur D. Hellman 

Sally Ann Semenko Endowed Chair 

University of Pittsburgh School of Law 

House Committee on the judiciary 

Subcommittee on Courts, Intellectual Property, and the Internet 

Hearing on 

An Examination of the 

Judicial Conduct and Disability System 

April 25, 2013 

Arthur D. Hellman 

University of Pittsburgh School of 

Law 

Pittsburgh, PA 15260 

Telephone: 412-648-1340 

Fax: 412-648-2649 

E-mail: hellman@pitt.edu 
37 

Hellman - Judicial Conduct - Page ii 

Outline of Statement 

I. Background 

II. Perspectives on Chapter 16 

III. Procedures under the Act and the Rules 

IV. Disclosure and Transparency 

A. The nature and timing of public disclosure 

B. Making the process more visible 

I. Electronic posting of final orders 

2. Publishing orders with precedential value 

3. Creating a national compendium of precedential orders 

4. A more detailed annual report on the Act's administration 

V. Disqualification of Judges 

A. Disqualification of judges under investigation 

B. Other disqualification issues 

I. The general standard 

2. Chief judge participation in council review in Track One cases 

3. Special committees and judicial councils 

VI. Review of Chief Judge and judicial Council Orders 

A. judicial council review of chief judge final orders 

B. Conduct Committee review in Track One cases 

I. Background 

2. Availability and scope of review 

C. Review of orders in "identified" complaints 

D. Matters of statutory organization 

VII. Other Issues 

April 22, 2013 
38 

Statement of 

Arthur D. Hellman 

Chairman Coble, Ranking Member Watt, and Members of the Subcommittee: 

Thank you for inviting me to express my views at this hearing on "An 

Examination of the Judicial Conduct and Disability System." 

In my view, the system of decentralized self-regulation established by 

Congress in 1980 is sound and does not require fundamental restructuring. At 

the same time, the experience of the past few years has revealed gaps and 

deficiencies in the regulatory regime that warrant attention. Some may be 

appropriately dealt with through revision of the Rules promulgated by the 

judiciary, but others should be addressed by Congress through changes to Title 

28. 

In this statement I suggest statutory amendments (and also some Rules 

changes) dealing with three aspects of the system: transparency and disclosure; 

disqualification of judges; and review of orders issued by chief judges and judicial 

councils. A common thread is that in each of these areas the judiciary has 

promulgated rules that reflect sound policy but are in conflict or tension with 

statutory language. Moreover, these elements are more than procedural; they 

determine who makes the decisions and how much information the public 

receives. The statement concludes by briefly flagging other issues that may 

warrant attention by Congress or the judicial Conference. 

Before turning to these matters, I will say a few words by way of personal 

background. I am a professor of law at the University of Pittsburgh School of 

Law, where I was appointed in 2005 as the inaugural holder of the Sally Ann 

Semenko Endowed Chair. I have been studying the operation of the federal 

courts for more than 30 years. I have testified at several hearings of the House 

Judiciary Committee on various aspects of judicial ethics, including the 200 I 

hearing that led to the enactment of the Judicial Improvements Act of 2002. My 

writings include two articles of particular relevance to today's hearing. One is an 

overview of the regulation of federal judicial ethics. I The other is an analysis of 

I Arthur D. Hellman, The Regulation of judicial Ethics in the Federal System: A Peek Behind 

Closed Doors, 69 U. Pitt. L. Rev. 189 (2007) [hereinafter Hellman. Judicial Ethics]. 

April 22, 2013 
39 

Hellman - Judicial Conduct - Page 2 

the current rules for judicial misconduct proceedings, adopted by the judiciary in 

the spring of 2008. 2 

I. Background 

For most of the nation's history, the only formal mechanism for dealing with 

misconduct by federal judges was the cumbersome process of impeachment. That 

era ended with the enactment of the Judicial Councils Reform and Judicial 

Conduct and Disability Act of 1980 (1980 Act or Act). This law created a regime 

that has aptly been described as one of "decentralized self-regulation."3 Codified 

in a single subsection of the Judicial Code, it established a new set of procedures 

for judicial discipline and vested primary responsibility for implementing them in 

the federal judicial circuits. In 1990, Congress adopted a modest package of 

amendments to the statute. 

In November 200 I, the predecessor of this Subcommittee held an oversight 

hearing on the operation of the 1980 Act. Based on the record of that hearing, 

Chairman Coble and Ranking Member Berman introduced a bipartisan bill to 

further revise the statutory provisions governing the handling of misconduct 

complaints. In particular, the bill codified some of the procedures adopted by the 

judiciary through rulemaking; it also gave the misconduct provisions their own 

chapter in the United States Code, Chapter 16. The bill was signed into law as 

the Judicial Improvements Act of 2002. 

Much has happened since the 200 I hearing. Two federal district judges 

were impeached by the House of Representatives. One resigned to avoid a 

Senate trial; the other was convicted and removed from office. Chief Judge Alex 

Kozinski of the Ninth Circuit was "admonished" by the Judicial Council of the 

Third Circuit for "possession of sexually explicit offensive material combined with 

his carelessness in failing to safeguard his sphere of privacy."4 District Judge 

Manuel Real was publicly reprimanded by the Ninth Circuit Judicial Council for 

2 Arthur D. Hellman, When Judges Are Accused: An Initial Look at the New Federal Judicial 

Miscanduct Rules, 22 Notre Dame J. L. Ethics & Pub. Pol. 325 (2008) [hereinafter Hellman, 

Misconduct Rules]. 

3 Jeffrey N. Barr & Thomas E. Willging, Decentralized Self-Regulation, Accountability, and 

Judicial Independence Under the Federal Judicial Conduct and Disability Act of 1980, 142 U. Pa. L. Rev. 

25,29 (1993). 

4 In re Complaint of Judicial Misconduct, 575 F.3d 279, 293 (3d Cir. judo Council 2009) 

[hereinafter Kozinski Website Opinion]. The proceeding was transferred to the Third Circuit 

after a request to the Chief justice by the Ninth Circuit judicial Council. 

April 22, 2013 
40 

Hellman - Judicial Conduct - Page 3 

improperly interfering in a bankruptcy case - but only after protracted 

proceedings that included two dismissals of the complaint.s Just this year, Senior 

District Judge Richard F. Cebull resigned from the bench after a Special 

Committee in the Ninth Circuit completed its investigation of Judge Cebull's 

transmittal of an email containing racially offensive content. 

Meanwhile, the regulatory landscape within the judiciary has altered 

considerably. In September 2006, a committee chaired by Associate Justice 

Stephen G. Breyer issued a detailed report on the implementation of the 1980 

Act.6 The report included extensive commentary on key statutory terms; it also 

made recommendations to all of the principal actors in the misconduct process. 

Although the report does not have the status of law, it is treated as a primary 

document; chief judges and circuit councils look to its analysis for guidance in 

handling misconduct complaints. 

In March 2008, the judicial Conference ofthe United States, the 

administrative policy-making body of the federal judiciary, approved the first set 

of nationally binding rules for dealing with accusations of misconduct by federal 

judges.? These Rules replaced the Illustrative Rules promulgated by the 

Administrative Office of United States Courts in 2000.8 All ofthe circuits have 

now adopted the 2008 Rules. 

Against this background, the time is ripe for a fresh look at the operation of 

the federal judicial misconduct statutes. I applaud the Subcommittee for initiating 

the process by holding this hearing. 

II. Perspectives on Chapter 16 

Before turning to the specifics, I offer three general observations to provide 

some context for my suggestions. 

5 See In re Committee on judicial Conduct & Disability, 517 F.3d 563 (U.S. judo Conf. 

Comm. on Conduct & Disability 2008). The conduct that led to the reprimand was also the 

subject of an impeachment hearing by the predecessor of this Subcommittee. 

6 judicial Conduct and Disability Act Study Committee, Implementation of the judicial 

Conduct and Disability Act of 1980: A Report to the Chief justice, 239 F.RD. 116 (2006) 

[hereinafter Breyer Committee Report]. 

7 Rules for judicial-Conduct and judicial-Disability Proceedings (Mar. I I. 2008), available at 

http://VVW'l'{.u5cQum.g9yNie';\'er.asjJ)(?clc)c=Ju~c()Ur1:s/R.lJLes,Al1t:1f>9Iicie_sLMisc(,-"dllCt!jud_~(mduct 

and disability 308 app B rev. pdf (hereinafter cited with Rule number). 

8 Administrative Office of the United States Courts, Illustrative Rules Governing 

Complaints of judicial Misconduct and Disability (2000) [hereinafter Illustrative Rules]. 

April 22, 2013 
41 

Hellman - Judicial Conduct - Page 4 

I. Judicial disability. When Congress established procedures for handling 

complaints against federal judges, it made no distinction between complaints 

alleging misconduct and complaints alleging "mental or physical disability" that 

affects a judge's ability to perform his or her judicial worle However, experience 

has shown that allegations of disability raise very different issues from allegations 

of misconduct. Concerns about a judge's mental or physical decline are generally 

addressed through informal and totally private measures. Transparency is 

generally unnecessary and indeed harmful. 

In this statement I shall focus primarily on misconduct. But I will note here 

that in revising the statute, care should be taken not to include mandates that 

would interfere with the ability of circuit chief judges to deal with disability in a 

quiet, compassionate, but effective way. 

2. Routine and non-routine complaints. The vast majority of misconduct 

complaints do no more than challenge the merits of a judge's ruling or make 

totally unsupported allegations of bias, hostility, or conspiracy on the part of one 

or more judges. The Breyer Committee, after careful study, found "no serious 

problems with the judiciary'S handling" of these routine complaints. I agree with 

that assessment. By the same token, I believe that Chapter 16 in its current form 

provides a generally adequate framework for dealing with the routine complaints. 

Some tweaking of the procedures may be desirable, but no more. 

Non-routine complaints present a more complex picture - in particular, 

what the Breyer Committee called "high-visibility cases" - complaints "that have 

received national or regional press coverage, including matters that have come to 

the attention of (or been filed by) members of Congress." These complaints are a 

tiny fraction of the total, but they are important out of proportion to their 

numbers, because those are the cases that shape public perceptions of whether 

the judiciary is adequately carrying out its responsibility to police misconduct 

within its ranks. In the high-visibility cases, the Breyer Committee found "an 

error rate of close to 30%," which the Committee deemed "far too high." The 

judiciary has taken steps to improve its handling of these cases, but more could 

be done, and some modest amendments to Chapter 16 could help. 

3. Fine-tuning the 2008 Rules. The mandatory national Rules adopted by the 

Judicial Conference in 2008 draw heavily on the analysis in the Breyer Committee 

report. However, on two important points the Rules fall short of the Breyer 

Committee's recommendations. First, the Rules do not adequately delineate the 

circumstances under which a circuit chief judge should "identify a complaint" to 

initiate the misconduct process. Second, the Rules do not sufficiently define the 

April 22, 2013 
42 

Hellman - Judicial Conduct - Page 5 

limited scope of the inquiry that the chief judge may undertake in his or her initial 

review of a complaint. There is no need to revise the statutory treatment of 

these matters, but I do think they should be addressed by the Conduct 

Committee and the Judicial Conference. I have discussed these points at length 

elsewhere and will not repeat the analysis here. 9 

III. Procedures under the Act and the Rules 

To set the stage for discussion of the issues warranting attention by this 

Subcommittee, it will be useful to outline the current procedures for handling 

complaints against federal judges. 

Under Chapter 16 and the implementing rules, the primary responsibility 

for identifying and remedying possible misconduct by federal judges rests with 

two sets of actors: the chief judges of the federal judicial circuits and the circuit 

judicial councils. A national entity-the judicial Conference of the United 

States-becomes involved only in rare cases, and only in an appellate capacity. 

There are two ways in which a proceeding may be initiated to consider 

allegations of misconduct by a federal judge. Ordinarily, the process begins with 

the filing of a complaint about a judge with the clerk of the court of appeals for 

the circuit. "Any person" may file a complaint; the complainant need not have any 

connection with the proceedings or activities that are the subject of the 

complaint, nor must the complainant have personal knowledge of the facts 

asserted. The Act also provides that the chief judge of the circuit may "identify a 

complaint" and thus initiate the investigatory process even when no complaint 

has been filed by a litigant or anyone else. 

When a complaint has been either "filed" or "identified," the chief judge 

must "expeditiously" review it. The chief judge "may conduct a limited inquiry" 

but must not "make findings of fact about any matter that is reasonably in 

dispute." Based on that review and limited inquiry, the chief judge has three 

options. He or she can (a) dismiss the complaint, (b) "conclude the proceeding" 

upon finding that "appropriate corrective action has been taken or that action on 

the complaint is no longer necessary because of intervening events," or (c) 

appoint a "special committee" to investigate the allegations. 

9 See Hellman. Misconduct Rules. supra note 2. at 348-55. I will also note that the 2008 

Rules are contained in a rather bureaucratic document. not easily navigable by the ordinary 

citizen. Some reorganization and restyling would be desirable. 

April 22, 2013 
43 

Hellman - Judicial Conduct - Page 6 

From a procedural perspective, options (a) and (b) are treated identically. 

The statute can thus be viewed as establishing a two-track system for the 

handling of complaints against judges. What I call Track One is the "chief judge 

track;" Track Two is the "special committee track." 10 All but a tiny fraction of 

complaints are disposed of on the chief judge track. I I 

If the chief judge dismisses the complaint or concludes the proceeding, a 

dissatisfied complainant may seek review of the decision by filing a petition 

addressed to the judicial council of the circuit. 12 The judicial council may order 

further proceedings, or it may deny review. If the judicial council denies review, 

that is ordinarily the end of the matter; in Track One cases, the statute states 

that there is no further review "on appeal or otherwise."13 However, the 2008 

Rules provide for another level of review under limited circumstances. This 

innovation raises important issues that will be discussed in Part VI of this 

statement. 14 

If the chief judge does not dismiss the complaint or conclude the 

proceeding, he or she must promptly appoint a "special committee" to 

"investigate the facts and allegations contained in the complaint." A special 

committee is composed of the chief judge and equal numbers of circuit and 

district judges of the circuit. Special committees have power to issue subpoenas; 

sometimes they hire private counsel to assist in their inquiries. 

After conducting its investigation, the special committee files a report with 

the circuit council. The report must include the findings of the investigation as 

well as recommendations. The circuit council then has a variety of options: it may 

conduct its own investigation; it may dismiss the complaint; or it may take action 

including the imposition of sanctions. 

Final authority within the judicial system rests with the judicial Conference 

of the United States. A complainant or judge who is aggrieved by an order of the 

circuit council after a special committee investigation can file a petition for review 

by the Conference; in addition, the circuit council can refer serious matters to 

10 More precisely, Track Two is the "chief judge/special committee track." For ease of 

reference I will use the shorter label. 

I I See Breyer Committee Report, supra note 6, at 132. 

12 The judicial council may refer petitions to a panel composed of at least five members of 

the council. 

13 In fact, the statute says this twice. See 28 U.S.c. §§ 352(c), 357(c). 

14 To my knowledge, the new review provision has not yet been invoked. 

April 22, 2013 
44 

Hellman - Judicial Conduct - Page 7 

the Conference on its own motion. If the Conference determines that 

"consideration of impeachment may be warranted," it may so certify to the 

House of Representatives. 

Congress has authorized the Conference to delegate its review power to a 

standing committee, and the Conference has done so.15 Until 2007, the 

committee was known as the Committee to Review Circuit Council Conduct and 

Disability Orders. The name was changed in 2007 in order to reflect the 

Committee's more active role in overseeing the Act's implementation; it is now 

the Committee on judicial Conduct and Disability. 16 I refer to it in this statement 

as the "Conduct Committee." 

IV. Disclosure and Transparency 

The system of self-regulation established by Congress can work only if the 

public trusts the judges to resist the temptations of what the Breyer Committee 

called "guild favoritism" - "an inappropriate sympathy with the judge's point of 

view or de-emphasis of the misconduct problem."17 This means that it is not 

enough that the judges carry out the task with rigor and impartiality; it is also 

necessary that their actions are seen as reflecting those qualities. In short, an 

effective system requires trust, and trust requires transparency. 

Unfortunately, from the beginning, the administration of the Act has been 

characterized by a lack of transparency and a bias against disclosure. The 2008 

Rules take some small steps in the direction of making the process more visible, 

and I applaud them for that. But they do not go far enough. Moreover, the 

statute itself bears some of the blame. I'll look first at the rules governing 

disclosure, then at other aspects of transparency. 

A. The nature and timing of public disclosure 

Except in the rare case where the judicial Conference determines that 

impeachment may be warranted, Chapter 16 provides for only limited public 

disclosure in misconduct proceedings. Written orders issued by a judicial council 

or by the judicial Conference of the United States to implement disciplinary 

IS See 28 USC § 331; In re Complaint of judicial Misconduct, 37 F.3d 1511 (U.S. Judo Conf. 

Comm. to Review Circuit Council Conduct and Disability Orders 1994). 

16 See Report of the Proceedings of the judicial Conference of the United States. Mar. 13. 

2007. at 5. 

17 Breyer Committee Report. supra note 6. at I 19. 

April 22, 2013 
45 

Hellman - Judicial Conduct - Page 8 

action must be made available to the public. But unless the judge who is the 

subject of the accusation authorizes the disclosure, "all papers, documents, and 

records of proceedings related to investigations conducted under [Chapter 16] 

shall be confidential and shall not be disclosed by any person in any 

proceeding." 18 The statute is silent on the publication of chief judge orders 

dismissing a complaint or concluding a proceeding. 

The judiciary's rules have filled in some of the statutory gaps, but they too 

evince a bias against disclosure. The basic rule (part of Rule 24) is that orders 

entered by the chief circuit judge and the judicial council must be made public, 

but only "[w]hen final action on a complaint has been taken and it is no longer 

subject to review." This directive is supplemented by a series of rules governing 

the disclosure - or more accurately the non-disclosure - of the name of the 

subject judge. Of particular importance, the rules specify two situations in which 

"the publicly available materials must not disclose the name of the subject judge 

without his or her consent": 

• "the complaint is finally dismissed ... without the appointment of a 

special committee;" or 

• "the complaint ... is concluded under [§ 352(b)(2)] because of 

voluntary corrective action." 

(Emphasis added.) There is only one situation in which the judge's name must be 

disclosed: when the judicial council takes remedial action (other than private 

censure or reprimand) after a special committee report. 

The overwhelming majority of complaints are dismissed without the 

appointment of a special committee, and a large proportion of the remainder are 

concluded based on corrective action. Thus, in all but a tiny fraction of cases, the 

publicly available materials will not identify the judge, and any explanatory 

memoranda may omit details that would enable a reader to find out who the 

judge is. 19 Further, no orders of any kind will be made public until the 

proceedings have concluded. 

18 28 U.S.c. § 360(a). As noted in the text, there is also a narrow exception for situations 

involving actual or potential impeachment proceedings. 

19 See, e.g., In re Complaint Against a Judicial Officer, No. 07-7-352-55 (7th Cir.Judicial 

Council Sept. 30, 2008). The two-paragraph order informs us that the chief judge appointed a 

special committee, and the committee carried out an investigation. The committee 

recommended that complaint be "dismissed as factually unsubstantiated and/or concluded based 

April 22, 2013 
46 

Hellman - Judicial Conduct - Page 9 

Is this policy sound? Consider first the cases in which the complaint is 

dismissed without the appointment of a special committee. The commentary has 

little to say about the rationale for the non-disclosure rule, but a somewhat fuller 

explanation can be found in the commentary to the Illustrative Rules. That 

commentary referred to "the legislative interest in protecting a judge from public 

airing of unfounded charges," and said that "the [1980] law is reasonably 

interpreted as permitting nondisclosure of the identity of a judicial officer who is 

ultimately exonerated and also permitting delay in disclosure until the ultimate 

outcome is known."20 

For purposes of today's hearing, it is unnecessary to inquire into Congress's 

intent in 1980; the question, rather, is whether the asserted interest in protecting 

judges from "public airing" should be given primacy over the interest in 

accountability.21 In the routine cases that make up the vast bulk of complaints, I 

think the tradeoff is a reasonable one, because neither interest is particularly 

strong. Take the typical case: the chief judge dismisses a complaint on the ground 

that the allegations are directly related to the merits of a decision. Is there really 

an injury to the judge's reputation if this "unfounded charge[]" of misconduct 

receives a "public airing"? At the same time, however, it is hard to see any 

serious threat to accountability if the judge's name remains undisclosed. 

The calculus changes in what the Breyer Committee called "high-visibility 

cases" - cases that have received national or regional press coverage. A 

complaint filed against District Judge Charles A. Shaw in 2006 is illustrative. The 

complaint was based on a story in the St. Louis Post Dispatch reporting that 

Judge Shaw "urged the crowd [at a naturalization ceremony] to vote for a 

congressman who shared the stage." The article noted that the Code of Conduct 

for federal judges says that judges should not endorse candidates for public office. 

The chief judge dismissed the complaint, saying that the judge's statements did 

not constitute an "endorsement." The order did not identify the judge.22 

on voluntary corrective actions." The circuit council accepted the recommendation. But the 

judge is not identified. and the order gives no clue as to the nature of the alleged misconduct. 

20 Illustrative Rules. supra note B. at 55. 

21 In the interest of brevity. I will summarize my conclusions in this statement. For a more 

extended analysis. see Hellman. Misconduct Rules. supra note 2. at 357-59. 

22 In re Complaint of john Doe. jCP No. 06-013 (Bth Cir. Judo Council Oct. lB. 2006) 

(Loken. CJ.) (on file with the author). 

April 22, 2013 
47 

Hellman - Judicial Conduct - Page 10 

The accusations against Judge Shaw had already been aired in a major 

regional newspaper (including its website). Withholding his name from the 

dismissal order did not protect him from that airing; on the contrary, it obscured 

from the public the information that he had been exonerated. In this kind of 

situation, the policy of the Rules makes little sense)3 

The "voluntary corrective action" cases present more difficult questions. 

Typically, these are cases in which the accusation of misconduct has some 

foundation, but the judge apologizes, and on that basis the chief judge concludes 

the proceeding. One can argue that, at least where the chief judge finds that the 

accused judge has violated the Code of Conduct or other ethical norms, the 

public has a legitimate interest in knowing the identity of the judge. On the other 

hand, ifthe apology (or other corrective action) did not carry with it a promise 

that the order would not identify the judge, the judge might be less willing to 

acknowledge fault and apologize. 24 That does not seem like a desirable outcome. 

Of course, this implicit bargain makes sense only when the allegations have 

not received a "public airing." If the underlying conduct has already been 

reported in national or regional news media, it is hard to see what is gained by 

withholding the judge's name from the order. And including it allows the public to 

see that the judiciary has not swept the matter under the rug. Indeed, in this 

situation, chief judges today sometimes ask the apologizing judge to consent to 

being identified in the order)5 

In my view, the policy should be this: When the substance of a misconduct 

complaint has been reported in news media, there should be a presumption that 

orders arising out of that complaint will disclose the identity of the judge. The 

presumption would apply when the complaint is dismissed on the merits and also 

23 The point is also illustrated by the proceedings involving District Judge James C. Mahan 

of Nevada. The Los Angeles Times published a front-page article accusing Judge Mahon of giving 

favorable treatment to friends and associates without disclosing "his relationships with those 

who benefited from his decisions." A special committee investigated the allegations and found 

no misconduct. The Ninth Circuit Judicial Council then dismissed the complaint in a brief, 

opaque order that did not identify the judge. In re Complaint of Judicial Misconduct, No. 06-

89087 (9th Cir. Jud. Council Aug. 23, 2007) (on file with the author). The anonymity was broken 

by Judge Mahon himself a few weeks later when he told his hometown newspaper that he was 

"very heartened" by the findings of the investigation. 

24 Perhaps this is what the Rules commentary means when it says: "Shielding the name of 

the subject judge in this circumstance should encourage informal disposition." 

25 See, e.g., In re Complaint Against District Judge Joe Billy McDade, No. 07-09-90083 (7th 

Cir. Jud. Council Sept. 28, 2009) (Easterbrook, c.J.). 

April 22, 2013 
48 

Hellman - Judicial Conduct - Page I I 

when the proceeding is concluded based on corrective action. By the same 

token, in "high visibility" cases it will often be desirable to release interim as well 

as final orders. 

I do not suggest that this policy be codified as part of Chapter 16. Rather, 

the statute should be amended to enable the judiciary to implement the policy 

(through rules or guidelines) without the constraints of the existing statutory 

provisions on confidentiality. The judicial Conference has shown the way, in a 

provision that is new in the 2008 Rules: "In extraordinary circumstances, a chief 

judge may disclose the existence of a proceeding under these Rules when 

necessary to maintain public confidence in the federal judiciary's ability to redress 

misconduct or disability." Building upon that provision, here is one possible way 

of drafting the amendment (to § 360): 

When necessary or appropriate to maintain public confidence in the 

federal judiciary's ability to redress misconduct or disability, a chief judge, a 

judicial council, or the Judicial Conference may -

(I) disclose the existence of a proceeding under this chapter; 

(2) make interim orders public; and 

(3) disclose the name of the judge who is subject of an order made public 

under [section 360]. 

B. Making the process more visible 

"Concern over public awareness of the Act," the Breyer Committee 

observed, "is longstanding." Addressing this concern entails two overlapping 

elements: the availability of the process must be made known to potential 

complainants, and the results of the process must be made known to all who are 

interested in the effective operation of the judicial system. 

Thanks in part to stern prodding by the Breyer Committee, the federal 

courts now do a better job of publicizing the availability of the process. But 

improvement has been spotty. The Breyer Committee recommended that every 

federal court should display the complaint form and the governing rules 

"prominently" on its website - "that is, with a link on the homepage."26 As of 

mid-June 20 I I, more than one-third of the district courts had failed to take this 

modest step toward greater viSibility. A spot check in April 2013 suggests that 

26 Breyer Committee Report. supra note 6. at 218. 

April 22, 2013 
49 

Hellman - Judicial Conduct - Page 12 

little has changed since then. Perhaps the time has come to incorporate the 

Breyer Committee recommendation into the National Rules. 

Even less progress has been made in publicizing how the Act is 

administered. Here are some steps that might be taken. 

I. Electronic posting of final orders 

The 2008 Rules provide that final orders disposing of a complaint "must be 

made public by placing them in a publicly accessible file in the office of the circuit 

clerk or by placing such orders on the court's public website." (Emphasis added.) 

It is difficult to understand why the Rule does not require, without qualification, 

that all final orders must be posted on circuit web sites. The ubiquity of the 

Internet has changed the popular understanding of document availability; in 

today's world, availability means "available online." Yet today, only six of the 13 

federal circuits post all misconduct orders on their websites. 

It is desirable in any event to codify the Rule provision requiring that all final 

orders (including those issued by the chief judge under § 352) be made public. 

That being so, there is every reason to include a requirement that the orders be 

posted on the court of appeals' public website.27 This could easily be done by 

amending 28 U.s.c. § 360(b). 

One drawback of comprehensive posting is that orders of general public 

interest (e.g. those that interpret the Code of Conduct) are buried among the 

routine ones. The simple solution is to post the non-routine orders under a 

separate heading or on a separate page within the website. 

2. Publishing orders with precedential value 

The 2008 Rules also provide: "If [misconduct] orders appear to have 

precedential value, the chief judge may cause them to be published." (Rule 23(b); 

emphasis added.) If a misconduct order "appears to have precedential value," that 

means that it will provide guidance to other judges in administering the Act. That 

is enough to warrant publication. 

The rule should also encourage chief judges and circuit councils to provide 

sufficient explanation in their orders to enable outsiders to assess the 

appropriateness of the disposition. 

27 The E-Government Act of 2002 already requires all federal courts to provide access on 

their websites to "the substance of all written opinions issued by the court, regardless of 

whether such opinions are to be published in the official court reporter." 

April 22, 2013 
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3. Creating a national compendium of precedential orders 

Two decades ago, the National Commission on judicial Discipline and 

Removal, chaired by former Rep. Robert W. Kastenmeier, recommended that 

the judiciary develop "a body of interpretative precedents" that would enhance 

"judicial and public education about judicial discipline and judicial ethics."28 The 

Breyer Committee renewed and elaborated upon this recommendation. But no 

such compilation has been made available on the federal judiciary's public 

website.29 

The Breyer Committee's report provides a good blueprint for the content 

and organization of the compilation, and I need only refer to it here.3o 

4. A more detailed annual report on the Act's administration 

Congress has required the Administrative Office of United States Courts 

(A.a.) to include in its annual report a statistical summary of the number of 

complaints filed under the Act and their disposition. The Breyer Committee 

recommended refinements to that report, and the A.a. has complied. But the 

report is still confined to numbers. 

I suggest that the judiciary supplement the statistical report with a narrative 

report that includes discussion of particular noteworthy complaints and their 

resolution. Models for such a report can be found in the annual reports issued by 

some state boards and commissions. The Minnesota Board on Judicial Standards 

provides "abridged versions" of cases to maintain confidentiality; the California 

Commission on Judicial Performance gives a wealth of detail. 

The report should be Signed by the chair of the Conduct Committee. And it 

should be posted as a separate document on the "Judicial Conduct and Disability" 

page of the Federal Judiciary's website. Taking these steps would not only 

28 Report of the National Commission on judicial Discipline and Removal, 152 F.R.D. 265, 

352 (1993) 

29 The 2008 Rules state that the Conduct Committee "will make available on the Federal 

judiciary's website ... selected illustrative orders, appropriately redacted, to provide additional 

information to the public on how complaints are addressed under the Act." But the only orders 

published on the website are five opinions of the Conduct Committee. 

30 Breyer Committee Report, supra note 6, at 216-17. The Breyer Committee 

recommended that the precedential orders should be "published in broad categories keyed to 

the Act's provisions, and ... with brief head notes." I would add that the categories should also 

be keyed to provisions of the Code of Conduct for United States judges. 

April 22, 2013 
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enhance public understanding of the Act's administration; it would also show the 

judiciary's commitment to policing misconduct within its ranks. 

v. Disqualification of Judges 

In opting for a system of judicial self-regulation, Congress decided that, as a 

general matter, federal judges can be trusted to investigate allegations of 

misconduct by their fellow judges and to impose discipline where appropriate. 

Plainly, however, there are some situations in which particular judges should not 

participate in particular misconduct proceedings. Unfortunately, Chapter 16 

provides only limited guidance on when judges should disqualify themselves. The 

2008 Rules have quite a bit to say about the subject, but some of their provisions 

are themselves problematic. I'll begin by looking at the statute, then turn to some 

of the issues that the statute does not address. 

A. Disqualification of judges under investigation 

Section 359(a) provides that a judge who is the subject of an "investigation" 

for misconduct or disability is not permitted to participate in specified 

governance activities within the judiciary. (The statute does not restrict 

participation in adjudicative activities.) Section 359(a) reads: 

No judge whose conduct is the subject of an investigation under this 

chapter shall serve upon a special committee appointed under section 353, 

upon a judicial council, upon the Judicial Conference, or upon the standing 

committee established under section 33 I, until all proceedings under this 

chapter relating to such investigation have been finally terminated. 

This provision raises four issues that warrant the Subcommittee's attention. 

First, the reference to "this chapter" in the opening phrase may be 

misleading. The only "investigation" authorized by Chapter 16 is an investigation 

by a special committee under § 353. But the reference in § 359(a) could be read 

as including the "limited inquiry" made by a chief judge under § 352. Thus, if the 

present phrasing is retained, I suggest replacing "this chapter" with "section 

353."31 

Second, the statute specifies that the disqualification continues "until all 

proceedings under this chapter relating to such investigation have been finally 

31 Perhaps out of caution there should also be a reference to § 355, but it is highly unlikely 

that the Judicial Conference would be carrying out an "investigation" with an eye to possible 

impeachment unless a special committee had been investigating in the circuit. 

April 22, 2013 
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terminated." (Emphasis added.) This appears to mean that disqualification would 

not be required if the investigation has moved to Congress for consideration of 

possible impeachment. I believe that if disqualification is appropriate while the 

judiciary is investigating possible misconduct, it should continue during the 

pendency of related proceedings in Congress. Rule 18 of the Illustrative Rules 

offers an alternative formulation that eliminates any ambiguity. Using it as a 

model, § 359(a) would read: 

Upon the appointment of a special committee under section 353, the 

judge who is the subject of the investigation shall not serve upon [the specified 

bodies] until all proceedings relating to such investigation have been finally 

terminated. 

Third, there is a question as to the scope of the disqualification mandated 

by § 359(a). The statute says that a judge who is the subject of a special 

committee investigation shall not "serve ... upon a judicial council, [or] upon the 

Judicial Conference." But the 2008 Rules provide that the subject judge is 

disqualified "from participating in any proceeding arising under the Act ... as a 

member of ... the judicial council ofthe circuit [or of] the Judicial Conference of 

the United States." (Emphasis added.) The commentary confirms that under the 

Rule the disqualification "relates only to the subject judge's participation in" 

misconduct proceedings; it does not "disqualify a subject judge from service of 

any kind on each of the bodies mentioned." 

I believe that § 359(a) does "disqualify a subject judge from service of any 

kind on each of the bodies mentioned."32 On that reading, the new Rule is in 

direct conflict with the statute. But Congress can amend the statute to conform 

to the Rule; the question for this Subcommittee is whether it should. 

The commentary to the Rule gives two reasons for limiting the 

disqualification to misconduct proceedings: 

[The broader] disqualification would be anomalous in light of the Act's 

allowing a subject judge to continue to decide cases and to continue to 

exercise the powers of chief circuit or district judge. It would also create a 

substantial deterrence to the appointment of special committees, particularly 

where a special committee is needed solely because the chief judge may not 

decide matters of credibility in his or her review under Rule I I. 

32 The drafters of the Illustrative Rules appear to have read the statute in the same way. 

See Illustrative Rules, supra note B. at 56 (Rule I B(a)). 

April 22, 2013 
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I am not convinced that these arguments, alone, carry the day. Ordinary judicial 

work is not likely to give rise to actual or perceived conflict with the judge's 

interest as the subject of an investigation. And special committees are so few in 

number that the deterrence concern seems overstated. 

Nevertheless, I agree that it makes sense to allow the judge who is under 

investigation to participate in activities of the circuit council and the Judicial 

Conference that are unrelated to misconduct proceedings. The rationale for 

disqualification is that participation would give rise to an actual or apparent 

conflict of interest. When the councilor the Conference is dealing with matters 

outside the realm of misconduct - matters such as budgets, space allocation, or 

personnel - there is little risk of such a conflict. 

This analysis applies only to the judicial council and the Judicial Conference. 

Special committees and the Standing Committee deal only with misconduct 

matters, so the disqualification should be comprehensive. 

Taking all of these points into account, I suggest that § 359(a) be redrafted 

as follows: 

Upon the appointment of a special committee under section 353, and 

until all proceedings relating to the investigation have been finally terminated, 

the judge who is the subject of the investigation -

(I) shall not serve upon a special committee appointed under section 353 

or upon the standing committee established under section 331; and 

(2) shall not participate in any proceeding arising under this chapter as a 

member of the judicial council of the circuit or as a member of the 

Judicial Conference of the United States. 

Finally, the statute does not address the question whether a circuit chief 

judge should be permitted to carry out his or her responsibilities under Chapter 

16 while he or she is the subject of a special committee investigation under § 353. 

As far as I know, this situation has arisen only once since the procedures were 

established more than 30 years ago. 33 But if Congress thinks that the answer is 

"no," the statute should be amended accordingly. 

I believe such an amendment would be desirable. First, it is unseemly for a 

judge whose own conduct is under investigation for possible violation of ethical 

norms to be passing judgment on other judges who have been accused of 

misconduct. Second, as the Rules commentary states in a related context, 

33 Three separate complaints were involved. 

April 22, 2013 
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"participation in proceedings arising under the Act ... by a judge who is the 

subject of a special committee investigation may lead to an appearance of selfinterest in creating substantive and procedural precedents governing such 

proceedings."34 And there is no way of telling in advance whether a particular 

misconduct complaint will raises issues that bear upon those involved in the chief 

judge's own case. 

For these reasons - and recognizing the rarity of the situation - I think it 

would be desirable to provide that, for the duration, the next-most-senior active 

judge will serve as acting chief judge for purposes of Chapter 16. Here is a 

possible way of putting this into the statute: 

A circuit chief judge whose conduct is the subject of an investigation 

under section 353 shall not participate in the consideration of any complaint 

under this chapter until all proceedings relating to such investigation have been 

finally terminated. 

B. Other disqualification issues 

Section 359(a) deals only with the disqualification of judges who are under 

investigation by a special committee. It says nothing about disqualification issues 

that may arise in misconduct proceedings in other contexts. Nor does any other 

provision of Chapter 16. One might think that the general disqualification statute, 

28 U.s.c. § 455, would provide the governing law, but by its own terms it does 

not; it applies to "proceeding[s]," and "proceeding" is defined to include "pretrial, 

trial, appellate review, or other stages of litigation." (Emphasis added.) Misconduct 

proceedings are not "litigation." 

Rule 25 of the 2008 Rules contains a lengthy set of rules governing 

disqualification. Three provisions (in addition to the one dealing with judges who 

are the subject of a special committee investigation) warrant discussion here. 

I. The general standard 

Rule 25 of the 2008 misconduct rules begins by laying out the general 

standard: "Any judge is disqualified from participating in any proceeding under 

these Rules if the judge, in his or her discretion, concludes that circumstances 

warrant disqualification." This standard contrasts sharply with the one codified in 

§ 455(a) for "litigation": a judge "shall disqualify himself in any proceeding in which 

his impartiality might reasonably be questioned." The courts have held that § 

455(a) "adopts the objective standard of a reasonable observer" who is "fully 

34 R. 25 cmt. 

April 22, 2013 
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informed of the underlying facts."3s In addition, § 455(b) specifies several 

particular circumstances in which disqualification is required (e.g. financial 

interest). 

Given the commands of § 455, it seems anomalous to say that a judge, when 

deciding whether to participate in considering a misconduct complaint against a 

fellow judge, should look only to "his or her discretion." One would think that, if 

anything, the bar to participation would be higher than it is in the context of 

litigation. This is so for two reasons. First, as the Breyer Committee recognized, 

the Act's system of self-regulation necessarily raises concerns about "guild 

favoritism."36 Judges should therefore be especially vigilant to avoid the 

appearance of conflict. Second, a refusal to recuse in the context of litigation is 

generally subject to appellate review, while a refusal to recuse in a misconduct 

proceeding is generally not reviewable at all. 

I do not think it is necessary to elevate the bar above that of § 455(a), but I 

do believe that the standard of § 455(a) should be applied in misconduct 

proceedingsY This can easily be done by adding a provision modeled on § 455(a) 

to § 357. 

2. Chief judge participation in council review in Track One cases 

The pre-2008 Illustrative Rules contained a very strong prohibition against 

any participation by a chief judge in judicial council review of final orders issued 

by the chief judge under § 352. Rule 18(c) provided: 

If a petition for review of a chief judge's order dismissing a complaint or 

concluding a proceeding is filed with the judicial council pursuant to [§ 3S2(c)], 

the chief judge who entered the order will not participate in the council's 

consideration of the petition. In such a case, the chief judge may address a 

written communication to all of the members of the judicial council, with 

copies provided to the complainant and to the judge complained about. The 

chief judge may not communicate with individual council members about the 

matter, either orally or in writing. 

3S United States v. Bayless, 20 I F.3d 116, 126 (2nd Cir. 2000). 

36 Breyer Committee Report, supra note 6, at I 19 

37 The Conduct Committee takes the position that § 455 is "not a template for recusals in 

misconduct proceedings" because the latter "are administrative. and not judicial. in nature." In 

re Complaint of judicial Misconduct. 591 F.3d 638. 647 (U.S. Judo Conf. Comm. on judicial 

Conduct & Disability 2009). I do not think the "administrative" characterization responds to the 

points made above in the text. 

April 22, 2013 
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Hellman - Judicial Conduct - Page 19 

The commentary acknowledged that the question of chief judge participation had 

"engendered some disagreement," but it explained why the mandatory 

disqualification rule had been chosen: "We believe that such a policy is best 

calculated to assure complainants that their petitions will receive fair 

consideration." 

Surprisingly, in the 2008 national Rules, this policy was reversed. New Rule 

2S(c) provides explicitly when a petition for review is filed, "the chief judge is not 

disqualified from participating in the council's consideration of the petition." 

(Emphasis added.) There is no explanation for the change.38 

I believe that the policy of the Illustrative Rules is preferable. Congress 

decided that a complainant dissatisfied with a chief judge's final order should have 

one level of review as of right. Prohibiting the chief judge from participating in 

that review preserves the independence of that second look. The policy of the 

Illustrative Rules also has the benefit of encouraging the chief judge to make sure 

that all relevant information is part of the formal written record.39 

I also believe that the disqualification rule should be incorporated into 

Chapter 16. There is a particular reason for this. The chief judge is, by statute, a 

member of the judicial council. (See 28 U.s.c. § 332.) It can be argued that the 

chief judge is therefore entitled to participate in all duties assigned by law to the 

council, including review of chief judge orders. This exception should therefore 

be specified by statute. Appropriate language can be drawn from Illustrative Rule 

18(c). 

3. Special committees and judicial councils 

Rule 2S(c) provides: "A member of the judicial council who serves on a 

special committee, including the chief judge, is not disqualified from participating 

in council consideration of the committee's report." There can be no legitimate 

objection to this rule. Unlike the chief judge, the special committee has no power 

38 The initial draft of the national Rules, circulated for public comment in June 2007, 

retained the disqualification policy of the Illustrative Rules. The December 2007 draft, circulated 

after the public comment period, reversed the policy without explanation. Indeed. the 

commentary states (as it does in the final adopted version) that "Rule 25 is adapted from the 

Illustrative Rules." 

39 The policy of the Illustrative Rules - unlike the 2009 Rule - is also consistent with a 

Congressional directive whose substance has been part of the Judicial Code for more than a 

century: "No judge shall hear or determine an appeal from the decision of a case or issue tried 

by him." 29 U.S.c. § 47. I do not suggest that this provision applies of its own force to 

misconduct proceedings. but I think that the underlying rationale does. 

April 22, 2013 
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to enter orders. Its duties are to investigate, to report, and to make 

recommendations to the circuit council. It is not independent of the council, and 

there is no reason why a judge who has served on the committee should not 

participate in the council's consideration of the committee's report. 

VI. Review of Chief Judge and Judicial Council Orders 

Chapter 16 contains two - and only two - provisions authorizing review of 

orders issued by chief judges and judicial councils in misconduct proceedings. 

Review of chief judge orders is governed by § 352. That section, after defining the 

authority of the chief judge to screen and dispose of complaints, provides in 

subsection (c): 

A complainant or judge aggrieved by a final order of the chief judge under 

this section may petition the judicial council of the circuit for review thereof. 

Review of judicial council orders is governed by § 357. That section provides: 

A complainant or judge aggrieved by an action of the judicial council under 

section 354 may petition the Judicial Conference of the United States for review 

thereof. 

(Emphasis added.) Section 354 delineates the actions that a judicial council may 

take upon receipt of a report by a special committee. Nothing in section 354 (or 

elsewhere) provides for review of council orders in cases in which a special 

committee is not appointed - what I have called "Track One" cases. 

Chapter 16 also contains two provisions precluding review. Section 352(c), 

after authorizing review in the language quoted above, adds: 

The [circuit council's] denial of a petition for review of the chief judge's 

order shall be final and conclusive and shall not be judicially reviewable on 

appeal or otherwise. 

This prohibition is repeated in § 357(c): 

Except as expressly provided in this section and section 352 (c) [quoted 

above], all orders and determinations, including denials of petitions for review, 

shall be final and conclusive and shall not be judicially reviewable on appeal or 

otherwise. 

Experience has revealed several flaws in the system of review created by 

these provisions. In the pages that follow, I outline the problems and suggest 

statutory amendments to correct them. The proposed amendments would: 

April 22, 2013 
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Hellman - Judicial Conduct - Page 21 

• clarify the scope of judicial council review of final orders of the chief 

judge in Track One cases; 

• provide statutory authority for limited Conduct Committee review 

in Track One cases, modeled after a novel provision in the 2008 

Rules; 

• create a channel of review when complaints are identified by the 

chief judge, thus filling a gap in the statutory arrangements; and 

• make two small organizational changes. 

A. Judicial council review of chief judge final orders 

Section 352(b) authorizes the chief judge to issue two kinds of final orders: 

he or she may "dismiss the complaint," and he or she may "conclude the 

proceeding." Section 352(c) authorizes judicial council review ofthese final 

orders, but it does not specify the nature or scope of the council's authority 

when a petition for review has been filed. Rule 5 of the 2000 Illustrative Rules 

filled the gap. I believe that the substance of Illustrative Rule 5 should be 

incorporated into Chapter 16.40 

Rule 5 was quite simple and straightforward. In relevant part, it read: 

The judicial council may affirm the order of the chief judge, return the 

matter to the chief judge for further action, or, in exceptional cases, take other 

appropriate action. 

Each of the three elements of the rule warrants brief comment. 

I. Affirmance. As reflected in the language quoted at the start of this 

discussion, § 352(c) and § 357(c) both refer to the "denial" of a petition for 

review. This is unfortunate. In the federal judicial system, the denial of review is 

associated with the Supreme Court's certiorari jurisdiction. The certiorari 

jurisdiction is discretionary, and a denial of certiorari, as the Justices have said on 

numerous occasions, is not a decision on the merits. But there is widespread 

agreement that, as stated in the commentary to the Illustrative Rules, the circuit 

judicial council "should ordinarily review the decision of the chief judge on the 

merits, treating the petition for review for all practical purposes as an appeal." 

That, indeed, is what the practice has been, both before and after the 2008 Rules: 

40 Illustrative Rule 5 was superseded by Rule 19(b) of the new National Rules. However. 

for purposes of amending the statute. the simple language of Rule 5 is preferable to the 

elaborate specificity of Rule 19(b). 

April 22, 2013 
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Hellman - Judicial Conduct - Page 22 

when a circuit council finds no error, it will generally affirm the chief judge's 

order. Chapter 16 should be amended to codify this approach, and Illustrative 

Rule 5 supplies appropriate language to that end. 

2. Returning the matter to the chief judge. Everyone appears to have 

assumed that if the council does not affirm the chief judge's final order, it may 

return the matter to the chief judge with directions to reopen the proceedings in 

any way the council deems appropriate to the particular situation. New Rule 

19(b) lists several specific actions that the council might direct the chief judge to 

take.41 Whether or not such detail is desirable in the Rule, it is certainly not 

necessary in the statute. The language of old Rule 5 - "may ... return the matter 

to the chief judge for further action" - serves the purpose very nicely. 

3. "Other appropriate action." The two options listed thus far will 

suffice for the overwhelming majority of complaints. However, old Rule 5 also 

authorized the circuit council, "in exceptional cases, [to] take other appropriate 

action." New Rule 19(b) retains this language. The commentary to the Illustrative 

Rule explained that this provision "would permit the council to deny review 

rather than affirm in a case in which the process was obviously abused." And 

there may be other instances in which such authorization would be helpful. I 

would therefore incorporate it into the statute. 

B. Conduct Committee review in Track One cases 

As noted earlier, Chapter 16 states not once but twice that when a judicial 

council denies a petition for review of a chief judge's final order under § 352, the 

denial of review "shall be final and conclusive and shall not be judicially reviewable 

on appeal or otherwise." Nevertheless, the 2008 national rules authorize the 

judicial Conference Conduct Committee to review council actions of this kind 

under limited circumstances. 

I agree with the judicial Conference that there should be some provision for 

review of judicial council orders affirming final orders of the chief judge under § 

352. However, I believe that the availability of review should be somewhat 

broader than it is in the 2008 Rules. I also believe that the authority for this kind 

of review should be explicitly conferred by Congress by amendment to Chapter 

16. 

41 The council may direct the chief judge to conduct a further inquiry under § 352(a). to 

identify a complaint under § 351 (b). or to appoint a special committee under § 353. (Note that 

the text of Rule 19(b) actually refers to the Rules that correspond to these statutory 

provisions.) 

April 22, 2013 
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I. Background 

The impetus for the new review provisions came from a controversial and 

protracted proceeding involving District Judge Manuel Real of Los Angeles.42 In 

brief: the judicial Council of the Ninth Circuit affirmed the dismissal of a 

misconduct complaint, over a blistering dissent by Judge Alex Kozinski, and 

notwithstanding substantial evidence that Judge Real had engaged in misconduct.43 

The complainant sought review by the Judicial Conference, but the Conduct 

Committee, by a vote of 3-2, determined that it had no jurisdiction.44 

Not long after that, the Judicial Conference and the Conduct Committee 

reached a different conclusion. They decided that in cases where a circuit council 

has affirmed an order dismissing a misconduct complaint, the Judicial Conference 

does have the authority to determine "whether [the] complaint requires the 

appointment of a special investigating committee."45 

New Rule 21 (b) implements this decision. It permits a dissatisfied 

complainant or subject judge to petition for review "if one or more members of 

the judicial council dissented from the order on the ground that a special 

committee should be appointed." The Rule also provides for review of other 

council affirmance orders "[at the Conduct Committee's] initiative and in its sole 

discretion." In either situation, the Committee's review is limited "to the issue of 

whether a special committee should be appointed." 

2. Availability and scope of review 

It certainly makes sense to allow review as of right by the Conduct 

Committee when one or more members of the circuit council have dissented 

from affirmance of the chief judge's order. The fact that even one Article III judge 

has expressed dissatisfaction with the status quo created by a circuit council 

decision is surely sufficient to justify a second look by the Conduct Committee. 

By the same token, however, there is no reason to limit review to cases in which 

the dissenter asserts that a special committee should have been appointed. Any 

42 For a detailed account ofthe origins of the new provision, see Hellman, Misconduct 

Rules, supra note 2, at 339-43. 

43 In re Complaint of judicial Misconduct, 425 F.3d 1179 (9th Cir. judo Council 2005). 

44 In re Opinion of judicial Conference Committee to Review Circuit Council Conduct and 

Disability Orders, 449 F.3d 106 Oudicial Conference of the U.S. 2006). 

4S See Report of the judicial Conference Committee to Review Circuit Council Conduct 

and Disability Orders at 3 (March 2007) (on file with the author). 

April 22, 2013 
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dissent should be sufficient. And all such dissents are extremely rare, so concern 

about workload should not stand in the way. 

I believe that review as of right should also be available in two other 

situations. The first is where the judicial council has affirmed an order concluding 

the proceeding under § 352(b)(2) rather than dismissing the complaint under § 

352(b)(I). Typically, these are cases in which the accused judge has acknowledged 

violating ethical norms and has apologized. Such cases lie at or close to the line 

between conduct that warrants some kind of discipline and conduct that does 

not. Moreover, their numbers are small; for example, in SY 2012, only 8 

complaints were "concluded," compared with nearly 1,300 that were dismissed. 

Providing for review as of right would add little to the burdens imposed on the 

Conduct Committee. 

Review as of right should also be available when the judicial council, in 

addition to affirming the chief judge's dismissal order, has imposed sanctions upon 

the complainant. I would make an exception for orders that do no more than 

"restrict or impose conditions on the complainant's use of the complaint 

procedure."46 But when more serious sanctions are imposed upon a complainant 

(such as a public reprimand), an added level of scrutiny - by a group of judges 

outside the circuit - will provide some assurance that the sanctions are not 

excessive and were imposed through fair procedures.47 

What remains are unanimous orders of affirmance in cases where the chief 

judge has dismissed the complaint under § 352(b)( I). Rule 21 (b) does not allow 

petitions for review in these cases, but it does authorize the Conduct Committee 

to engage in review "[at] its initiative and in its sole discretion." I think it makes 

more sense to allow petitions but to make the review discretionary, with no 

requirement of an explanation when review is denied. For one thing, the openended review provision in the new Rule potentially puts the case in limbo while 

the Conduct Committee decides whether this is one of the rare instances in 

which it should exercise its discretion.48 For another, a petition for review can 

provide some guidance, however small, to aspects of the council decision that 

may be open to debate. And while it would be something of a burden for the 

46 See 2008 Misconduct Rules, R. I O(a). The exception would not include orders that 

prohibit a complainant from future use of the procedure. 

47 For a brief discussion of judicial council authority to impose sanctions. see infra Part VII. 

48 There is also the potential for confiict with the provisions of Rule 24 on the public 

availability of decisions. See Hellman. Misconduct Rules. supra note 2. at 345. 

April 22, 2013 
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Committee (or more accurately its staff) to sift through the many petitions for 

review, there would be no need to even look at the large number of cases in 

which no review is sought. 

lines: 

Putting all of this together, I suggest adding a provision to § 357 along these 

(I) A complainant or judge aggrieved by an order of the judicial council 

affirming a final order of the chief judge under section 352 may petition the 

Judicial Conference of the United States for review thereof. 

(2) There shall be a right to review if -

(A) one or more members of the judicial council dissented from the 

order; or 

(B) the chief judge concluded the proceeding in whole or in part under 

section 352(b )(2); or 

(C) the judicial council imposed sanctions on the complainant (other 

than an order imposing conditions on the complainant's use of the complaint 

procedure). 

(3) In all other cases, review shall be at the sole discretion of the Judicial 

Conference. 

C. Review of orders in "identified" complaints 

On June I I, 2008, the Los Angeles Times published an article reporting that 

Chief Judge Alex Kozinski of the Ninth Circuit had "maintained a publicly 

accessible website featuring sexually explicit photos and videos."49 Judge Kozinski 

immediately (and publicly) asked the Ninth Circuit JudiCial Council to initiate 

proceedings under the then-new national misconduct rules. The Council 

construed his request as the equivalent of identifying a complaint of judicial 

misconduct under 28 U.S.c. § 351 (b). The matter was transferred to the judicial 

Council of the Third Circuit, which carried out an investigation and issued a 

lengthy memorandum opinion "conclud[ing]" the proceeding.50 

The Council decision was widely interpreted as a vindication of Judge 

Kozinski. For example, the Wall Street Journal's Law Blog posted a story aptly 

summarized by its headline: A "Pleased" Kozinski Cleared of Wrongdoing. 5 I Several 

49 See Kozinski Website Opinion, supra note 4, 575 F.3d at 280 (quoting article posted on 

newspaper's website). 

50 Id. at 295. 

51 WSJ Law Blog, July 2, 2009 (on file with the author). 

April 22, 2013 
63 

Hellman - Judicial Conduct - Page 26 

months later, however, the Judicial Conference Conduct Committee, in an 

opinion addressing a different complaint, stated unequivocally that the Third 

Circuit proceeding "resulted in a finding of misconduct."52 

If the Conduct Committee had directly reviewed the Third Circuit Judicial 

Council decision, it would have made clear that it did not interpret the ruling as a 

vindication of Judge Kozinski. And it would have issued an opinion of its own that 

hopefully would have provided a less ambiguous denouement to the proceeding. 

The public would then have had a solid basis on which to evaluate the judiciary's 

handling of the allegations. But because no complaint had been filed, there was no 

"complainant ... aggrieved by the action of the judicial council" who could 

petition the Judicial Conference for review. 53 

This episode points up a serious gap in the statutory scheme: when a 

misconduct proceeding is initiated by action of the chief judge rather than by the 

filing of a complaint, there is no provision for review of final orders of the chief 

judge or the judicial council (unless the person aggrieved by the order is the 

judge who is the subject of the proceeding). The gap is especially troubling 

because "identified" complaints often involve "high-visibility cases" like those 

discussed by the Breyer Committee.54 

Fortunately, a solution is at hand. It is suggested by a memorandum opinion 

issued by then-Chief Judge Doris Sioviter of the Third Circuit more than 20 years 

ago.55 Judge Sioviter received an anonymous complaint alleging that a judge 

allowed close relatives to practice before him and failed to disqualify himself 

when required to do so. She found that the allegations "would state a cognizable 

claim" under the Act, but she concluded the proceeding based on intervening 

52 See In re Complaint of judicial Misconduct, 591 F.3d 638, 646 (U.S. judo Conf. Comm. on 

judicial Conduct & Disability 2009). 

53 Of course, judge Kozinski could have filed a petition for review, but having declared 

himself "pleased" with the result, he had no reason to do so. 

54 Another example is the proceeding involving District Judge james e. Mahan of Nevada, 

discussed supra note 23. Although the newspaper story that triggered the investigation provided 

a wealth of detail to substantiate its allegations (including names, dates, and dollar amounts), the 

Ninth Circuit judicial Council's brief order dismissing the complaint failed to address any of the 

specifics. Outsiders thus had no way of assessing whether the matter had been handled 

properly. The Conduct Committee might have done a better job, but because the complaint had 

been identified by the chief judge, there was no one to seek review of the judicial Council order. 

55 Anonymous v. Hon. [Name Redacted]. j.e. No. 92-03 (3rd Cir. judicial Council Mar. 4, 

1992) (on file with the author). 

April 22, 2013 
64 

Hellman - Judicial Conduct - Page 27 

events. She then noted that because the complainant was anonymous, the 

ordinary review process "may be pretermitted." She therefore "invoke[d] a sua 

sponte petition for review" and directed the deputy clerk to send the relevant 

materials "to the members of the Judicial Council with the request that they 

follow the ordinary review procedure." The Judicial Council did as she requested. 

I believe that the equivalent of this procedure should be codified in Chapter 

16. Here is some language that would accomplish the purpose: 

[A] If the chief judge dismisses a complaint that has been identified under 

section 351 (b) or concludes the proceeding on such a complaint, the chief 

judge shall certify the final order to the judicial council of the circuit for review 

in accordance with [the procedure specified for review of chief judge ordersJ.56 

[B] When a judicial council issues a final order under section 354 on a 

complaint identified by the chief judge under section 351 (b), the council shall 

certify the order to the Judicial Conference of the United States for review. 

The latter provision could easily be modified to allow Conduct Committee 

review of Track One cases in which the circuit council has affirmed the chief 

judge's final order disposing of an identified complaintY 

D. Matters of statutory organization 

In addition to these substantive amendments, two small organizational 

changes would make the statutes more user-friendly. 

First, the provisions governing review of chief judge orders by the judicial 

council are now included in section 352, which outlines the powers and 

responsibilities of the chief judge in reviewing complaints. It would make sense to 

transfer these provisions (as modified) to section 357, so that all provisions for 

56 Here is another possible formulation: "If, after identifying a complaint under section 

351 (b), the chief judge dismisses the complaint or concludes the proceeding, the chief judge shall 

certify the final order to the judicial council of the circuit for review in accordance with [the 

procedure specified for review of chief judge orders]." 

57 The proposals in the text leave one gap. If, after accusations have surfaced in the news 

media, the accused judge (other than the chief judge of the circuit) files a complaint against 

himself or herself, there might not be an independent complainant who could file a petition for 

review. As far as I am aware, that situation has arisen only once in the history of the Act. It 

should not happen again if chief judges follow the recommendation of the Breyer Committee to 

make greater use of "their statutory authority to identify complaints when accusations become 

public." See Breyer Committee Report, supra note 6, at 209, 245-46. 

April 22, 2013 
65 

Hellman - Judicial Conduct - Page 28 

review of orders and actions in misconduct proceedings would be found in a 

single section. 

Second, the important provisions delineating the role of the Judicial 

Conference of the United States - including the authority to delegate its review 

power to a standing committee - are buried in an unnumbered paragraph (one of 

nine) in section 33 I , which deals with a wide range of matters involving the 

Judicial Conference. I think that these provisions should be moved to a new 

section (§ 365) that would be part of Chapter I 6. 

VII. Other Issues 

Here I flag a few other issues that may warrant attention by Congress or by 

the judicial Conference and conclude with some observations about the 

institutional arrangements for dealing with matters of federal judicial ethics. 

• Judicial disqualification and the "merits-related" exclusion. From 

the beginning, the judiciary has taken the position that "[a] mere 

allegation that a judge should have recused" is merits-related and 

thus not cognizable under the Act. 58 But an improper failure to 

recuse, unlike other erroneous decisions a judge might make, is a 

violation of the Code of Conduct. Should this entire class of ethical 

infractions be excluded from the ambit of the misconduct 

procedures? 

• "Corrective action" and the apology. As already noted, the Act 

authorizes the chief judge to "conclude the proceeding" upon finding 

that "appropriate corrective action has been taken." The 2008 Rules, 

following the lead of the Breyer Committee, makes clear that 

"corrective action" must be "voluntary action taken by the subject 

judge." Commonly, the "corrective action" is an apology. Should the 

apology be recognized as a distinct basis for concluding a misconduct 

proceeding? 

• Sanctioning abusive complainants. Rule 10(a) provides that a 

complainant who has "abused the complaint procedure" (for 

example, by filing repetitive or frivolous complaints) may be 

restricted or even prohibited from filing further complaints.59 In two 

58 See Breyer Committee Report. supra note 6. at 239. 

59 Before restricting the right to file. the circuit council must give the complainant an 

"opportunity to show cause" why the limitation should not be imposed. 

April 22, 2013 
66 

Hellman - Judicial Conduct - Page 29 

recent cases, the Judicial Council of the Ninth Circuit has gone 

further than restricting the right to file; it has issued a "public 

reprimand" of a lawyer complainant,60 Should Title 28 or the Rules 

be amended to explicitly authorize sanctions in addition to filing 

restrictions? 

• Fear of retaliation. Four years ago, the Task Force on Judicial 

Impeachment heard wrenching testimony by two employees of the 

federal court in Galveston, Texas, who were subjected to abusive 

treatment by District Judge Samuel B. Kent. Initially neither employee 

reported the abuse because of fear of retaliation. The judicial 

Conference has recognized the importance of "assuring that justified 

complaints are brought to the attention of the judiciary without fear 

of retaliation."61 Various systems have been suggested, but I believe 

that the most important element is the visible, emphatic, public 

commitment by the chief judge of the circuit to addressing legitimate 

complaints and protecting complainants from any form of reprisal. 

In addition to its many procedural suggestions, the Breyer Committee called 

upon the judicial Conference to give the Conduct Committee "a new, formally 

recognized, vigorous advisory role" in guiding and counseling chief circuit judges 

and judicial councils in implementing the 1980 Act. The Breyer Committee also 

urged the Committee itself to consider "periodic monitoring of the Act's 

administration." 

Implicit in these recommendations is a twofold judgment: first, that selfregulation of federal judicial ethics requires a somewhat greater degree of 

centralization than now exists; and, second, that it is desirable to have an entity 

within the judiciary whose single function is-and is known to be-that of 

strengthening judicial ethics and enhancing transparency. 

The Rules adopted in 2008 take modest steps in the direction of 

implementing these ideas, but more could be done. In particular, the Conduct 

Committee could be given a robust, visible role in monitoring the administration 

of the Act by chief judges and circuit councils and interjecting itself where the 

regional actors fall short. Meanwhile, by amending the statute, Congress can 

60 See In re Complaint of judicial Misconduct, 550 F.3d 769 (9th Cir. judo Council 2008); In 

re Complaint of judicial Misconduct, 623 F.3d 110 I. I 102-03 (9th Cir. judo Council 20 I 0). 

61 See Breyer Committee Report. supra note 6, at 217 (quoting judicial Conference 

proceedings). 

April 22, 2013 
67 

Hellman - Judicial Conduct - Page 30 

update the Act to reflect the best practices developed by the institutional 

judiciary and individual judges over the years. 

April 22, 2013 
68 

Mr. COBLE. Thank you, Professor Hellman. 

Mr. Wheeler, good to hear from you. 

TESTIMONY OF RUSSELL R. WHEELER, VISITING FELLOW, THE 

BROOKINGS INSTITUTION, AND PRESIDENT, THE GOVERNANCE INSTITUTE 

Mr. WHEELER. Thank you, Mr. Chairman. 

Mr. COBLE. Mike? 

Mr. WHEELER. How’s that? 

Mr. COBLE. Better. 

Mr. WHEELER. I won’t take my full 5 minutes. I want to—I 

should say I endorse generally Professor Hellman’s proposals. As I 

said in my statement, I added a few that complement them or add 

to them, which I won’t repeat here. 

I did want to emphasize one point about the oft-referenced 

Breyer Committee report. I was privileged to work with the Committee, and the point I want to emphasize is this was very much 

a ‘‘let the chips fall where they may’’ report. It was not undertaken 

with any conclusions already arrived at, and the methodology was 

quite rigorous, and I describe it very briefly in my statement. 

And it did find, however, relatively low levels of problematic terminations. Less than 5 percent of the vast majority of terminations 

it looked at were problematic, meaning that in most cases, the chief 

circuit judge should have undertaken a more extensive, albeit limited inquiry before dismissing the case. 

Now those results, along with the results of a 1991 study done 

for the national commission chaired by former Representative Kastenmeier, which used the same method and found basically the 

same results—a very low level of problematic terminations—lead 

me to conclude that with some exceptions, effective implementation 

of this act is now part of the culture of Federal judicial administration. 

Now, obviously, we can’t say for sure if the Breyer Committee 

study, were to be replicated today, whether it would find those 

same low levels of problematic terminations on the part of the 

courts, but I suspect it would, in part because of the enhanced 

rules that Judge Scirica’s committee adopted. And I commend the 

committee as well for undertaking a periodic monitoring of the 

complaints and terminations which come to the committee on an 

annual basis in a method similar to what the Breyer Committee 

used. 

And as I suggest in my statement, I think it might be helpful for 

the judiciary to publish a summary of that occasional monitoring 

in the same fashion as the Breyer Committee published its findings, obviously without identifying complainants or judges, but providing some sense beyond the raw numbers of how the courts are 

administering the Act. 

That’s all I have. 

Thank you. 

[The prepared statement of Mr. Wheeler follows:] 
69 

Prepared Statement of 

Russell R. Wheeler 

Visiting Fellow, The Brookings Institution 

President, The Governance Institute 

on the Judicial Conduct and Discipline System 

Before the 

Subcommittee on Courts, Intellectual Property and the Internet 

Committee on the Judiciary, House of Representatives 

April 25, 2013 

rwheeler(li;brookings.edu 

202-797 -6288 
70 

Prepared Statement of Russell R. Wheeler 

Chairman Coble, Ranking Member Watt, Vice-Chairman Marino, and members of the 

Subcommittee: Thank you for this opportunity to testify at this oversight hearing 

examining the federal judicial conduct and disability system, and thank you for the 

oversight itself Proper legislative oversight of the other two branches is a vital part of the 

checks and balances embodied in the Constitution. By way of summary, I believe the 

judicial branch is doing, overall, a very good job of administering the Act, which largely 

involves sifting through a high number of insubstantial and often frivolous complaints to 

find the few that justify further investigation. 

Since September 2005, I have been a Visiting Fellow in the Brookings Institution's 

Governance Studies Program and president of the Governance Institute-a small, nonpartisan, non-profit organization that since 1986 has analyzed various aspects of 

interbranch relations. In both positions I have been especially interested, among other 

things, in various aspects of judicial ethics regulation. 

Before assuming these positions I was with the Federal Judicial Center, the federal 

courts' research and education agency, serving as Deputy Director since 1991. While at 

the Judicial Center and for about a year at Brookings, I assisted the six-member Judicial 

Conduct and Disability Act Study Committee, appointed in May 2004 by Chief Justice 

William H. Rehnquist and often referred to as the "Breyer Committee," after its 

chairman, Associate Justice Stephen G. Breyer. The committee-Justice Breyer, two 

former chief circuit judges, two former chief district judges, and the Chief Justice's 

administrative assistant- reported to the Judicial Conference of the United States in 

September 2006,1 after which a renamed Judicial Conference Judicial Conduct and 

Disability Committee developed new, mandatory rules governing the processing of 

complaints, rules that the Conference approved in March 2008. 2 

Credit for the report and the subsequent rules goes in part to the House Judiciary 

Committee and its then-chairman, Representative F. James Sensenbrenner, who called 

attention in early 2004 to what he regarded as an improper dismissal of ajudicial conduct 

complaint he had filed (the Breyer Committee subsequently agreed that the dismissal was 

improper)'. Chief Justice Rehnquist said in announcing the committee appointments, 

"There has been some recent criticism from Congress about the way in which the Judicial 

Conduct and Disability Act ... is being implemented, and T decided the best way to see if 

there are any real problems is to have a committee look into it.,,4 

The relatively few problems highlighted by the Breyer Committee, and the process 

enhancements in the 2008 rules, have no doubt led to improvements in how the federal 

1 "Implementation of the Judicial Conduct and Disability Act of 1980, A Report to the Chief Justice," 

(Scpt 2006), available at 

http://www.fjc.govl1ibrary/fjc_catalog.nsf/autoframepage!openform&url~l1ibrary/fjc_catalog.nsf/DPublicat 

ion!opcnfonll&parcntunid~C6CA3DC8B22AC2D78525728B005C9BD3 

, Available at 

l}ltP:J./w}'lW .. llS'OlltlS.,gO.1Ni~w,r.a$px?doc~illSg)UJt,jRl!le~l"11clP()li~i,,-s!M~(;!lJl(11tclZil!d3()ndllCl .. "1l"_di$il 

hilil' J08 app B rev.pdr 

, Sec rcport id at note 1, at 73-75. 

1 Td at Ill. 
71 

Russell Wheeler 2 April 25, 2013 

courts handle complaints filed under the Act, although, as the Committee report 

documented, the courts had already been doing, overall, a very good job. In this 

statement, I describe the Breyer Committee's methods and principal findings, and then 

offer a few fairly modest suggestions to strenbrthen further the judicial conduct and 

disability system. 

The Breyer Committee and Its Work 

At the outset, let me make very clear that I speak only for myself and in no way claim to 

speak for the Breyer Committee (which went out of existence after it tiled its report) or 

for any fonner members of the committee or its small research statT(or, for that matter, 

for my two current affiliations). 

What it did Working with two Judicial Center researchers and one from the 

Administrative Office of the U.S. Courts (and me as a coordinator of sorts), the 

committee selected two samples of complaints tenninated from 2001-03: a 593-complaint 

sample, selected to overrepresent complaints most likely to have alleged behavior 

covered by the Act (e.g., the sample included a larger percentage of complaints tiled by 

attorneys than in the initial unmodified sample and a lower percentage of complaints filed 

by prisoners) and a separate sample of 100 tenninations drawn totally at random. It also 

identified 17 complaints terminated from 2001 to 2005 that received press or legislative 

attention-"high visibility complaints".' 

The research staff reviewed the 593 complaints and tenninations to identify 

"problematic" terminations, based on committee-approved definitional standardsG and 

after committee review of a subset of initial staff reviews to ensure the staff was applying 

the standards as the committee wished. The committee members alone reviewed the 

smaller 100-case sample without staff assistance. (The various forms for reviewing the 

complaints are in the report appendices.) 

The purpose of both reviews was not to determine if the subject judges had committed 

misconduct or displayed performance-degrading disabilities but rather to assess whether 

chief circuit judges and judicial councils applied the statute as intended-mainly whether 

the chief judge conducted a "limited inquiry" (as the Act authorizes) sufficient to justify 

dismissing the complaint or concluding the proceeding, but not an inquiry that invaded 

the investigatory role reserved for a special committee. 

Finally, staff, using survey instruments approved by the committee, interviewed current 

former chief circuit judges and staff. 

What it found The committee concluded that 3.4 percent of the 593 stratitied sample of 

terminations were problematic, as were 2.0 percent of the terminations in the 100 straight 

random sample complaints (not surprising given the larger sample's oversampling of 

likely meritorious complaints). The Committee found a greater proportion of problematic 

dispositions among the high-visibility complaints (tive of the seventeen), which it 

attributed to those complaints' greater likelihood to confront the chief judge or circuit 

council with more decisions, and thus a greater chance of at least one incorrect decision. 

The Committee expressed concern that these five problematic dispositions could take on 

'Id at 39ff. 

6 Id at Appendix E, 144ff. 
72 

Russell Wheeler 3 April 25, 2013 

outsize importance because of their visibility, and convey an inaccurate impression to the 

public and would-be filers of the Act's effectiveness. 

To be clear, this was a methodologically rigorous analysis that let the chips fall where 

they may. (The non-partisan American Judicature Society praised the report for "not 

hiding the federal judiciary's dirty linen in the closet," and for "thoroughly discuss[ing] 

situations in which the judiciary's performance was deficient [and] the causes that may be 

responsible,,7) The committee imposed strict-some might even say too strict-criteria 

in its review of the terminations it assessed. For one example, a complaint by a prisoner 

alleged that the person on the bench in a hearing in his case was a young man, probably 

the judge's intern, not the judge. The judge informed the chief circuit judge that he had 

no intern at the time of the hearing and his law clerk was a middle-aged woman, after 

which the chief judge dismissed the complaint. The committee characterized the 

allegation as "bizarre, [but] not so outlandish as to be what our Standard 4 calls 

'inherently incredible, '" and classified the disposition as problematic because the chief 

judge did not obtain, or order his staff to obtain, the electronic recording of the 

proceeding to verify that the voice on the tape was that of the judge8 

These findings suggest that, despite occasional problematic dispositions, proper 

administration of the Act is by and large engrained in the culture of federal judicial 

administration. One might ask whether a replication of the research conducted on a more 

recent sample of cases would find the same low level of problematic dispositions. 

Obviously, we cannot know that without the replication itself, but there are reasons to 

suspect that such a replication would find performance at least as favorable as that found 

by the committee. One reason is the mandatory committee rules and the tougher 

enforcement and oversight regime they mandate. Also, though, the Breyer Committee 

findings track very closely those of an earlier study, conducted in 1991-92, using the 

same basic methodology, for the statutory National Commission on Judicial Discipline 

and Removal, chaired by former Congressman Robert Kastenmeier. The earlier study 

used only one modified random sample (of 469 complaints) and found a 2.6 percent 

problematic disposition rate (compared to the 3.4 percent that the Breyer Committee 

found in its 593-case sample). The difference is not statistically significant9 

informal discipline outside the Act Finally, the committee interviews tracked a widely 

shared view within the federal judiciary, namely that informal resolution of misconduct 

and disability, perhaps in the shadow of the Act, is more extensive than resolutions that 

result from formal complaints. This is especially so as to performance-degrading 

disability, which is rarely the basis for complaints under the statute. lO 

Committee Recommendations and Additional Steps 

The Committee offered twelve recommendations, principally to provide additional 

information to chief judges and councils including a vigorous role for the Conduct 

Committee; to provide additional information about the Act to potential users; and to 

7 '·Polilics and Progress in Federal Judicial Accountability," Judicature (Sep't . Oct.. 2006), available at 

http://w\VW .aj s.org/aj s/aj s _ editorial-template. asp ?content_ id=5 30 

'Idat5]. 

9 Id at 95ff. 

10 Id at eh. 5. 
73 

Russell Wheeler 4 April 25, 2013 

enhance publically available information about the Act and its implementation. The 

judicial branch, mainly through the new rules, has adopted many of the 

recommendations. I am also aware of Professor Arthur Hellman's specific proposals to 

improve the implementation of the Act, mainly in the areas of transparency, 

disqualification of certain judges in judicial conduct proceedings, and review of chief 

judge and council orders. Professor Hellman is probably the country's leading expert on 

the federal judicial and disability system. In general I share his concerns and endorse his 

proposals, and add here only a few additional comments. 

The rule of the Conduct Committee The Act is clear that the chief judge, upon receipt of a 

complaint, may undertake a "limited inquiry" but "shall not undertake to make findings 

of fact about any matter that is reasonably in dispute,,11 A complainant may appeal a 

chief judge's dismissal order to the judicial council, but a judicial council's "denial of a 

petition for review of the chief judge's order shall be final and conclusive and shall not be 

judicially reviewable on appeal or otherwise." 12 Perhaps because of some reported 

instances in which chief judges appear to have dismissed complaints after making 

findings of fact of matters reasonably in dispute-dismissals affirmed by the respective 

judicial council-Rule 21 seeks, in the words of its commentary, "to fill ajurisdictional 

gap." It authorizes the Conduct Committee to consider, on petition of a dissenting council 

member or on its own initiative, whether the chief judge should have appointed a special 

committee. This is an important role for the Conduct Committee, even if it would be 

needed rarely. 1 tend to agree with Professor Hellman that a statutory change would help 

to clarify the Conduct Committee's authority in such situations, rare as they may be. 

In a related vein, the Breyer Committee recommended that the judicial branch monitor 

the Act's administration periodically, but doubted that "a full-blown replication of our 

research would be necessary each time. This was a labor-intensive process for us, for our 

staff, and for the judges and supporting personnel in the circuits ,,13 The Conduct 

Committee has taken an important step in this direction by examining of some of the 

universe of terminations it receives from the circuits and doing so in a manner the highly 

respected Committee chair, Judge Anthony Scirica, characterizes as similar to the Breyer 

Committee's review. Just as the Breyer Committee published summary data on its review 

of the terminations it examined and explained why some terminations were problematic, 

the Conduct Committee might release similar periodic summary analyses. 

Providing information 011 how the Act has been inlerpreted The commentary to Rule 3 

states that the "responsibility for determining what constitutes misconduct under the 

statute ["conduct prejudicial to the efFective and expeditious administration of the 

business of the courts," 28 US.c. § 351(a),] is the province of the judicial council of the 

circuit subject to such review and limitations as are ordained by the statute and by these 

Rules" 

The judicial branch needs a transparent way of accessing the decisions of the judicial 

councils (and chief judges) in order to allow chief judges, council members, and other 

process participants and observers a means of identifying and assessing the 

11 28 US.c. §152(a) 

12 28 US.C. §352(c) 

13 Report at 123. 
74 

Russell Wheeler 5 April 25, 2013 

determinations the councils are making-accessing what some have called the common 

law of judicial misconduct and disability. 

One of the Breyer Committee's main recommendations was for selected orders to be 

posted on the judicial branch website "in broad categories keyed to the Act's provisions, 

and ... with briefheadnotes.,,14 This recommendation is embodied to a degree in the 

Rules' promise that the Conduct Committee "will make available on the Federal 

Judiciary's website. selected, illustrative orders, appropriately redacted, to provide 

additional infonnation to the public on how complaints are addressed under the ACt.,,15 

The Conduct Committee's forthcoming on-line Digest of A1Ithorities can make a valuable 

contribution to this end. 

The Act itself also requires each circuit to make available in the court of appeals clerks 

office all written orders implementing the Act's provisions. 1G The Rules bolster that 

provision by suggesting the courts' web sites as an optional fonn for making the orders 

public, and, in tenns of transparency and ease of access, website postings are obviously 

the better option. 17 A preliminary review of circuit practices as I prepared this statement 

suggest that these circuits do S018: 

First All orders from 2008 following, ranging in number from 14 to 45 per year. 

Seventh All orders since 2011 (93 in 2012, for example) with earlier years available on 

website archives. 

Ninth 794 orders, from 2006 and later 

Tenth About 500, since January 2008 

DC Orders from 2011-2013 (53, for example in 2012). 

Two other circuits (the Second and Fifth) have posted a small number of orders in highvisibility complaints, and the Federal Circuit has posted 24 orders from 2008, 2009, and 

2010. 

These postings are surely a positive, if complete, step. At the risk of sounding 

unappreciative of the posting circuits' efforts, however, analyzing the orders, to compare 

dispositions of similar complaints, or to assess how different chief judges and councils 

detine or interpret the statute and the governing rules, would require wading into an 

undifferentiated mass of orders (including routine council orders affinning chief judge 

dismissals), identified only by date, case number, and, in some circuits, a generic 

description (eg, "Order, Chief Judge" or "Order, Judicial Council"). A more helpful 

14 Idat 117. 

15 Rule 24(b). 

16 28 U.S.c. §360(b) 

p Rule 24(b) 

1 R The orders are available at tbese links: 
75 

Russell Wheeler 6 April 25, 2013 

typology is necessary (along with indicating the page length of each order as a rough way 

to identify non-routine orders). 

Enhanced orientation for chief circuit judges 

The Breyer Committee recommended an individual, in-court orientation program for 

each new chief circuit judge, provided by an experienced current or former chief judge 

and a member of the Administrative Office General Counsel's office who staffs the 

Conduct Committee, and that the Federal Judicial Center develop a common core 

curriculum for the program to promote uniformity in the Act's implementation. The 

recommendation, along with others, for on-tap resources, was designed to ensure '''that 

the chief judge is not out there alone'." 19 I do not believe the Conduct Committee to date 

has requested the Federal Judicial Center to develop such a program, or some other 

program toward the same end. It is worth exploring, however, whether the Center is in a 

position to develop and administer such a program and curriculum, and whether the 

Conduct Committee perceives a need for it in light of the other steps it is taking in its 

advisory role. 

Providillg information 011 the Act to potential users The courts, based on my most recent 

and admittedly non-exhaustive review have done a fairly good job with another 

transparency-related Breyer Committee recommendation, namely making information 

readily available on court website about the Act and how to file a complaint. Not all 

courts that post such material place it on the homepage, as the Committee 

recommended,20 but for the most part 1 do not believe the infonllation is hard to find. The 

Judicial Conference Committee on the Judicial Branch, under its former chair, Judge D. 

Brock Hornby, and current chair, Judge Robert A. Katzmann, with the assistance of its 

Administrative Office staff, has aggressively reminded the courts of the Rules 

requirements for such posting.21 The Breyer Committee found, in 2006, only marginal 

compliance with a previous suggestion for such posting, and found that those courts that 

were posting the information on their web sites did not experience a greater proportionate 

number offilings22 It accompanied its recommendation with a suggested paragraph 

warning would-be filers that the chief judge would dismiss their complaint ifit related to 

the merits of an underlying decision, and a fair number of courts appear to have adopted 

that suggestion. 

J J J 

Thank you for the opportunity to testify this afternoon. I will do my best to answer any 

questions you may have. 

19 Report at 113 

20 Report at 120-21. 

21 Rule 28 

22 Report at :n 
76 

Mr. COBLE. Thank you, Mr. Wheeler. You overcame the illuminating light, difficult to do sometimes up here. Thank you, sir. 

We try to comply with the 5-minute rule as well, gentlemen. 

Let me start, Judge Sentelle, with you. In your statement, you 

noted that the AO was instrumental in conducting investigations 

of allegations about fraud, waste, and abuse. If you will, summarize 

for us some of the more significant investigations the AO has undertaken, the sums involved, the corrective actions taken, and provide us with a sense of how many such investigations are currently 

underway. 

Judge SENTELLE. I’m not sure I can give you sums involved in 

each instance. 

Mr. COBLE. And you could follow up subsequently if you can’t do 

it today. 

Judge SENTELLE. Let me consult my notes here just one moment. 

In the Southern District of Ohio, there was an investigation ordered by the chief judge that engaged a local attorney to conduct 

the investigation, who found that a clerk employee had—a clerk of 

the court had engaged with an improper relationship with an employee. The clerk admitted the relationship and resigned. 

The chief judge requested an audit of the procurement actions 

conducted by that clerk for a conference, which was also a topic in 

the allegation. The Office of Audit and the Administrative Office of 

the Courts, the AO, conducted an audit. They found only about 

$2,000 in improper payments, but they found it. So it was not a 

big instance—amount in that case. 

During the AO’s cyclical review of a defender program under the 

Criminal Justice Act attorney panel, concerns were raised by one 

colleague that another one on the panel was padding his reimbursement voucher. Notification of the allegations to the AO, the 

chief requested investigative assistance. The AO investigator conducted a review of the panel attorney’s vouchers. 

Now this one has a happy ending. They reviewed thousands of 

dollars worth of vouchers and found that the defense attorney had 

not been in that case padding his vouchers. 

But there was an actual embezzlement investigation in the 

Northern District of Illinois based on allegations that an employee 

was making questionable purchases with the credit card of the 

court. At the request of the chief judge, the AO conducted an investigation. 

The investigation determined that the employee had circumvented the court’s procedures and embezzled approximately 

$35,000 in goods and funds. The AO referred the matter to the Department of Justice, and the employee ultimately pled guilty to the 

charge of embezzling Government funds. 

That’s three that are readily available. There are others, but fortunately, they’re usually not big amounts of money. If we’re doing 

it right, we’re going to catch them when they’re still pretty small, 

most of them. 

Mr. COBLE. Thank you, Judge. 

Listen, let me start with Professor Hellman. Professor, what are 

the most important steps Congress and the judiciary can take to 

promote greater transparency in the processing of judicial mis-
77 

conduct complaints and to, furthermore, assure that those complaints are expeditiously and impartially reviewed? 

Mr. HELLMAN. Is the microphone on? Yes. 

I think that from the standpoint of transparency, there are two 

simple steps that I would like to see the judiciary take, and it 

doesn’t need any further authorization. The Breyer Committee recommended that every district court should post on its—the home 

page of its website a link to the forms and rules for misconduct. 

That has been done by a majority of the districts, a substantial majority. But there are some that are not yet in compliance, and I 

hope that Judge Scirica’s committee will see to it that all districts 

are in compliance with that. 

Second thing involves the publication of misconduct orders. 

Under the current rules, the circuit councils have the option of putting the rules on their websites, publishing them there, or making 

them available in the clerks’ offices. 

About half of the circuits now only make them available in the 

circuit’s office. It seems to me that it’s an easy call—these should 

be online. They should be available to everyone. Frankly, everyone 

will now see that most of them are, in fact, frivolous, unsubstantiated, and are handled in exactly the way that they should be. 

So I think that by putting these orders in a place where people 

can readily see them, that will substantially enhance confidence in 

the judiciary’s ability and willingness to police misconduct within 

it. 

Mr. COBLE. Thank you, Professor. 

Mr. Wheeler, let us try. Will you try to beat the red light again, 

same question? 

Mr. WHEELER. Well, I endorse what Professor Hellman said. I 

think that the court records in posting information about the Act, 

the rules and the forms, may be a little—my sense is it’s a little 

better than he thinks it is if we just don’t assume that the material 

has to be exactly on the home page of the court. But obviously, it 

should be available to everybody, readily available on the website. 

As to the posting of orders, I also agree with him that it’s a bit 

of a no-brainer that they be posted on the website, as opposed to 

simply available in the clerk’s office. But I would—at the risk of 

sounding ungrateful, I’d go on to say because there are so many orders—there are 900-some orders on the Ninth Circuit website— 

some sort of typology that would allow somebody like Professor 

Hellman, who’s trying to figure out how the courts are doing, would 

make a lot of sense. 

That doesn’t require a rule change, I don’t think. It just requires 

organizing these orders in such a way that the many routine orders 

can be overlooked and let scholars and judges and others get to the 

orders that make a difference. 

Now I commend the committee for posting on the judiciary’s 

website what it calls a digest of authorities, which is a summation 

creating a sort of a common law for Federal judicial discipline that 

was recommended by the Breyer Committee, and I understand 

they’re going to post that this summer. And that’s a good step in 

the right direction. 

Mr. COBLE. Thank you, Mr. Wheeler. 
78 

Judge Scirica, I know you want to respond. Let me get to you 

later on. It is just my red light appears. Do you want to proceed 

now? 

Judge SCIRICA. Yes, sir. 

Mr. COBLE. Go ahead, even though my red light is on, they won’t 

penalize me too severely. 

Judge SCIRICA. Thank you very much. 

These are good suggestions, Mr. Chairman. And I think that we 

can accomplish these. Courts are moving toward putting all of their 

orders online, and there have been some additions just in the last 

month. And I think this is something we can do with dispatch. 

[Pause.] 

Mr. COBLE. Were you finished, Judge? 

Judge SCIRICA. Yes, sir. 

Mr. COBLE. I thank you for that. 

The Chair recognizes the gentleman from North Carolina, Mr. 

Watt. 

Mr. WATT. Thank you, Mr. Chairman. 

And as has started to be my policy, I decided to generally defer 

to my co-counsel before I go and go last. So I think Mr. Jeffries was 

the first one here. So I will defer to him. 

Mr. JEFFRIES. Well, thank you, Congressman Watt, and thank 

you, Mr. Chairman. 

I thank the distinguished members of the panel and the two distinguished judges for your testimony. 

This question is directed to either of the two distinguished members of the bench. As was pointed out in one of your presentations, 

the system of government that we have has been very strong and 

robust, 235 years, sets forth three coequal branches of government. 

An independent judiciary is clearly important in the context of the 

robustness of our democracy, us being a Nation of laws, not men. 

What do you think is the appropriate role of congressional oversight, balancing the interests of our obligation as representatives 

of the people, direct representatives of the people, in the context of 

our democracy with the constitutional prescription of an independent judiciary that is a coequal branch of government? 

Judge SENTELLE. If I might, I can’t give you a short answer on 

that. I think if you look back to 1701 to the Act of Settlement, the 

rider on that act that established the succession of the British 

crown created a judiciary that was protected in its tenure from removal and reduction in income by the king because the people of 

England had lost faith that the judges would take their cases and 

rule with justice against the crown. 

In the time of the Declaration of Independence, the crown had 

violated that principle in the appointment of colonial judges so 

that, again, one of the grievances set forth in the Declaration of 

Independence is that the judges do not serve independently. 

They’re under the thumb of the crown. 

So the general principle would be that you need enough independence in the judiciary so that the public does not perceive that 

the political branches—and I use ‘‘political’’ not in a disparaging 

sense, but in the sense of the branches who are politically accountable—would not—are not controlling the independence of the judiciary. 
79 

Now that’s a very general answer, but I understand that Congress has to have the role of deciding are we spending the people’s 

money wisely, for example? And if we’re not, you need to find that 

out. You have to have oversight to find that out, and you have the 

responsibility of doing something about it. 

If we are not obeying the laws that you have set forth, or if those 

laws are not properly managing what the courts are doing, then, 

of course, you have the responsibility as the representatives of the 

people to correct that. 

Mr. JEFFRIES. With respect to, Judge, if I might—and I don’t generally get the opportunity to actually interrupt a judge. So I do it 

respectfully. 

Mr. WATT. That is the prerogative of being in Congress now? 

Mr. JEFFRIES. I am a new Member. So I am learning that prerogative. [Laughter.] 

Thank you, Congressman. 

With respect to the management of the people’s money, what has 

the impact of the sequestration cuts been, in your view, on the ability of the judiciary to provide for generally the efficiencies of its operation in the administration of justice? But specifically on this 

issue, how might it impact your capacity to provide for the type of 

self-governance that currently is the system that is in place? 

Judge SENTELLE. Do you want that one? The impact of the sequestration on the judiciary is as broad as the judiciary is. Just as 

you see in the executive branch and in the legislative branch, every 

area is impacted. 

We have clerk of courts offices that have people who are—either 

are or expecting to be furloughed, losing days a week. We have the 

problem in the defender system, which is funded through the 

courts that, actually, defender lawyers, as well as prosecutors over 

in the U.S. attorney’s office—that’s the Justice Department. But 

the defender lawyers are being furloughed so that we cannot 

hear—many districts cannot hear criminal trials but 4 days a week 

because of the furlough of the defender. 

So that justice is being delayed in that regard and then will be 

denied. Because justice delayed is justice denied. So far as that affects the governance as such, Congressman, I’m not sure that I can 

say that I see a way in which it affects self-governance as such at 

this point. 

But it affects us in a myriad of ways in that we can’t get our job 

done in a lot of ways as efficiently and as effectively as we’d like 

to do. The most disturbing to me is the effect on the defender system because you have the average defendant in Federal court now 

is in custody awaiting trial. 

Now some of—all of those people are presumed to be innocent. 

Some of those people may be innocent. So that you have people 

who ultimately are acquitted who stayed in jail longer than they 

should have because the system could not get to their trial because 

the defenders had to be laid off a day a week. 

Now that’s not directly governance, but perhaps you got somewhere close to what you were asking for. 

Mr. JEFFRIES. Well, it certainly relates to the fair administration 

of justice within the system. 

I thank you. 
80 

Mr. COBLE. Thank you, Mr. Jeffries. 

The Chair recognizes the gentleman from Pennsylvania, Mr. 

Marino. 

Mr. MARINO. Thank you, Chairman. 

Good afternoon, gentlemen. It is a pleasure. 

I am going to invoke what I learned from Justice—Judge Caputo 

and Judge Munley in the Third Circuit of Pennsylvania. ‘‘Tom, 

keep your questions short and make sure your witnesses keep their 

answers even shorter.’’ 

So I am going to try and have each of you address this. So the 

question is—I will start with Professor Hellman. Sir, do you see 

any way, short of impeachment, any system by which Congress can 

investigate a particular Federal judge? 

Mr. HELLMAN. I think that there are opportunities for investigating what the courts do. Investigating non-impeachable behavior I think would raise very troublesome questions under the Constitution. 

If I understand your question correctly? 

Mr. MARINO. Yes. 

Mr. HELLMAN. Yes. 

Mr. MARINO. Mr. Wheeler, please? 

Mr. WHEELER. I have nothing to add to that. It’s fairly rare that 

such occasions arise in which I think Congress might want to undertake that kind of investigation. But I think Professor Hellman 

is right that it would create problems fairly soon, especially when 

I think the judiciary is doing a pretty good job of taking care of 

itself. 

Mr. MARINO. And if the judges concur with that, just nod, and 

I will go on to my next question unless you want to specifically address the issue. 

Judge SCIRICA. I do concur. But let me just add a little footnote 

to that. If our disciplinary system is investigating a particular 

judge and we believe that that person may have committed a 

crime, we have an obligation to talk to the prosecutors about that 

and to make sure that nothing in our system is going to impede 

the proper prosecution of that particular individual. 

So there is some relationship. There is some back and forth between the judiciary and, let’s say, the U.S. attorney on some of 

these matters. 

Mr. MARINO. Judge Sentelle, anything to add, sir? 

Judge SENTELLE. I fear that if I talk, I’d subtract rather than 

add. I think everything has been well said, and I would simply do 

what’s wise for a preacher sometimes to say amen and shut up. 

Mr. MARINO. Hallelujah. I had—I practiced in the Third Circuit 

as a U.S. attorney and tried my cases before a distinguished court 

in the Middle District of Pennsylvania. And what advice or recommendations would you two judges give we in Congress about 

making the system more efficient and more equal for the American 

citizens? 

Judge SCIRICA. If—— 

Judge SENTELLE. You backed off. You’re asking what can Congress do to make the system more equal or more effective for the 

citizens? 

Mr. MARINO. Yes. 
81 

Judge SENTELLE. I’ll risk being a little controversial, I guess. For 

one thing, not long ago when we were wanting to have some additional bankruptcy judges to get bankruptcies handled, we were told 

we had to come up with the money. And it was suggested that we 

might get that by raising the fees in bankruptcy. 

Raising of fees generates money perhaps, but part of what a government provides is an effective court system that is reasonably accessible to its citizens. And I think perhaps sometimes we’re asked 

to use fee levels to an extent that may make the system less equal 

by making it less accessible to the breadth of the citizenry. 

That was a very small, esoteric, and perhaps controversial matter that comes to mind, but I believe that—— 

Mr. MARINO. I happen to agree with you. 

Judge SENTELLE [continuing]. Pay as you go, PAYGO is not always a good way to approach the dispensation of justice. 

Mr. MARINO. Anything to add, Judge Scirica? 

Judge SCIRICA. No, I do not. 

Mr. MARINO. Gentlemen, thank you very much. 

And I yield back my time. 

Mr. COBLE. I thank the gentleman. 

The Chair recognizes the distinguished gentleman from Louisiana, Mr. Richmond. 

Mr. RICHMOND. Thank you, Mr. Chairman. 

Thank you to the Ranking Member. 

I am trying to separate what I remember regarding attorney discipline and judiciary discipline. Is there a database or does every 

circuit keep track of every complaint that is filed against a judge? 

Judge SCIRICA. Yes. 

Mr. RICHMOND. And the final disposition of each one of those becomes public? 

Judge SCIRICA. Yes, sir. 

Mr. RICHMOND. So there would be no instances of, for lack of a 

better description, a deferred adjudication for judges where there 

is a private letter of reprimand or something of that nature? That 

doesn’t exist on the Federal level? 

Judge SCIRICA. There could be—there could be a private letter of 

reprimand where the judge’s name was not made public. Yes, that 

is correct. 

Mr. RICHMOND. And in a sense of transparency and just, I guess, 

transparency, what is the purpose behind that? 

Judge SCIRICA. Well, I think that if a private reprimand were 

issued, at least to me, it would be an indication that the matter 

had not been that serious. Perhaps it had been a one-time transgression, and perhaps it had not even hit the public eye. 

I’ve—I was chief judge for 7 years, and I never issued a private 

reprimand or a private censure. And I think that it is pretty rare, 

but it certainly does happen. I think when matters are more serious, a public reprimand is called for, and in those instances, the 

judge’s name is made public. 

Mr. RICHMOND. Do you think there is still a justifiable need or 

purpose served by having a private letter or private reprimand? 

Judge SCIRICA. Well, I’ve often wondered about that myself. Because chief judges typically talk to judges who have gotten into 

trouble and counsel them, guide them, and sometimes end up tak-
82 

ing action that’s going to result in more serious—in more serious 

action, where there is an actual public reprimand or could result 

in a judge having cases suspended so that no cases would be sent 

to that judge for a period of time or, in the more serious instance, 

ask the judge to voluntarily resign. 

Mr. RICHMOND. And Judge, please feel free to weigh in if you 

would like. It appears to me, especially with Federal judges because the likelihood of removal or the obstacles to get to removal 

are so great, the hurdles are so great, that removal is not usually 

the final outcome why there would be a need to keep it private. 

When judges that are elected, then it can be used in campaigns 

and things of that nature. But a judge that is appointed basically 

for life, barring something very, very serious and our action, what 

is the public purpose of keeping any disciplinary action private 

would be my general question? And Judge, if you have more to add 

to it, please feel free, either judge. 

Judge SENTELLE. Judge Scirica has more expertise on this than 

I. I think you make a very good point. There is a reason—now let 

me say at the outset, this may not be a good enough reason. But 

as Professor Hellman pointed out, the vast majority of the complaints that are filed are frivolous. 

They’re rather like some mail that you know that you get in all 

your congressional offices from somebody who thinks that the CIA 

is stealing their brainwaves. Well, these people think that because 

the judge has ruled against them, it must have been a conspiracy 

with some vast left or rightwing conspiracy against him. 

And I think the sense is that we don’t want to gratify those people by or aggrandize those people by publishing or publicizing the 

frivolous attacks on the judge. The other reason, and again, I don’t 

know if it’s good enough or not, is that if the complaint is not frivolous, but rather is scurrilous, that is it’s false—it would be a legitimate complaint if it were true, but it’s false—that again, we don’t 

want to spread the slander. 

Now it may not be that those are good enough reasons, but they 

are two reasons that are sometimes assigned. 

Mr. RICHMOND. Well, with the complaint, I would tend to agree. 

But any private letter of discipline, I would—that is what I am 

having—— 

Judge SENTELLE. Private letter of discipline, I think you have a 

very good point. I was chief for 5 years. I never issued a private 

letter of discipline, but I did on one occasion take other remedial 

action with a judge when there was a legitimate complaint that he 

just wasn’t getting his work out. And I went and met with him and 

tried to help him come up with ways to get his work out. 

I did not enter any kind of order that went on the public record 

on that, but as far as an actual reprimand privately, I haven’t done 

it. But I know that shortly before I came onto the court, which was 

1987, there had been a private reprimand issued against a judge. 

And since the complainant has a right to know what happened to 

his complaint, he knew about it. And so, the complainant actually 

made it public. 

The judge was irate, said these are supposed to be confidential. 

And we—by then I was on the court, and we said, look, we can’t 
83 

stop the public from releasing this information. If he knows it, he 

has a First Amendment right. 

If there’s a reprimand there and the complainant knows it, they 

could make it public. And I don’t know that there is a very good 

reason for not making it public to begin with. 

Mr. RICHMOND. Thank you, Judge. 

And thank you, Mr. Chair. 

Mr. COBLE. Thank you, Mr. Richmond. 

The gentleman from North Carolina, Mr. Holding, is recognized. 

Mr. HOLDING. Thank you, Mr. Chairman. 

Judge Sentelle, it is always a pleasure to see you. Judge Scirica, 

your reputation precedes you, and it is a pleasure to meet you. 

I would point out, as a matter of trivia, that the Chairman, the 

Vice Chairman, Judge Sentelle, and myself all served as assistant 

United States attorneys at one point or another, and there might 

be some other Members of the Committee who did so as well. So 

my question harkens back from that experience. 

I guess there are 93 Federal districts, and each one has their 

own local rules and local traditions of practice. In some of those 

Federal districts where colleagues of mine were serving as U.S. attorneys, they had a pervasive problem with frivolous complaints 

about ethics or prosecutorial misconduct. And the way the Department of Justice worked with the Office of Professional Responsibility that whenever one of these complaints would go in, it would 

go up to main Justice and trigger an investigation and a process 

which was kind of a one-size-fits-all process that could be very onerous, and it could put an assistant United States attorney out of 

commission for a long time complying with the investigation. 

Oftentimes, they were found to be trivial, but it is a one-size-fitsall investigation. So my question is, is anything being contemplated 

here, change wise, that would foster a situation where those types 

of compliance could become burdensome on the judiciary? 

Judge Scirica? 

Judge SCIRICA. I don’t—yes. I don’t think so. I think that all of 

these complaints are taking—taken seriously. Ninety-five percent 

of the complaints on an annual basis are filed by either prisoners 

or by pro se litigants in civil cases. 

And as Judge Sentelle mentioned, most of them allege some form 

of corruption or collusion or bias, but without any facts, without 

any reference to the record, or anything that can be checked. And 

when you read the complaints, you see that folks are angry or 

upset because of the result in the case, because they may be serving a long prison term, or some are just mentally ill and they can’t 

let go of a loss or of a prison sentence. 

I think the system does pretty well. Sometimes we do get abusive 

complaints. That is serial complaints from the same individual. 

When that happens, after a period of time, we have show cause orders that work in order to prevent them from filing more complaints. 

But in our circuit, we take the complaints and—but we have to 

approve the filing. That is we review it before we allow the complaint to go ahead if somebody has filed several complaints. 

I don’t think there’s any real effective sanction that you can impose on these individuals. Most of them don’t have money. Many 
84 

don’t have jobs. Many are in prison. And, but each one is entitled 

to have his or her complaint heard, and that is what is done. 

The fact that there are so few complaints that reach a special 

committee and reach my committee, which is in some degrees the 

end of the road, I think is pretty good evidence that the Federal 

judges are doing their jobs properly, that the great majority of 

these complaints are not founded. But they all get a hearing, and 

they’re dealt with, I think, appropriately. 

Mr. HOLDING. Thank you. 

Professor Hellman, I want to follow up quickly on Mr. Marino’s 

question. I think we are all in agreement that it would be difficult 

for Congress to do non-impeachment hearings of Federal judges. 

But what about in the instance—there are 93 Federal districts. 

They have local rules. 

What about investigations of local rules in particular districts? 

For instance, you might have a district that has local rules that 

cause a litigation outcome or a litigation process that is different 

from any other district in the United States and, as such, is a magnet for a particular type of litigation. 

What would the proper role of Congress be in looking at that 

from an oversight perspective? 

Mr. HELLMAN. One of the things—— 

Mr. COBLE. Mike? 

Mr. HELLMAN. One of the things Congress certainly has control 

over is venue, where suits can be brought. And in fact, Congress 

has from time to time changed the venue statutes when it has felt 

that people were using particular districts as a magnet for litigation that didn’t necessarily belong there. 

But the other thing I would say is that a separate process of the 

Judicial Conference is the review of the rules made by the districts 

for litigation. And I think that probably the first step if there are 

concerns about local rules that are inconsistent from one district to 

another is to bring that to the attention of the Rules Advisory Committee because they play a very active role in trying to bring uniformity to the procedures in the various Federal courts. 

Mr. HOLDING. Thank you, Professor. 

Mr. COBLE. Thank you, Mr. Holding. 

The Chair recognizes the gentlelady from Texas, Ms. Jackson 

Lee. 

Ms. JACKSON LEE. Thank the Chair and the Ranking Member. 

Thank the witnesses very much. Good to see you, Judge and professors. 

I am going to ask a specific question, then go into a policy question that I hope you all will just comment on. The specific question 

deals with the 2008, the judiciary rules included a strong provision 

that prohibited a chief judge who had entered a final order from 

participating in any subsequent consideration of a petition for review of that order by the Judicial Council. 

That policy provided an assurance to the petitioner that the decision of the Judicial Council would not be unduly influenced by the 

chief judge who had already rendered an order. And in the 2008 

national rules, the policy was completely reversed, and the judiciary provided, to my understanding, no explanation in doing so. 

The two judges, would you comment on that? 
85 

Judge SCIRICA. Yes. You are certainly correct. The rules changed 

the prior practice that was set forth in what were called the illustrative rules. And the reason, I think, was because it was decided 

that this process should be mainly an inquisitorial or an administrative process. 

Obviously, there is some adversarial nature to it, but it should 

be more in the nature of an inquisitorial process to try to get at 

the facts. And for the judge who is directing the investigation making certain findings, making references to a special committee, for 

example, dealing or sitting on the council, it was thought that they 

could play both roles. 

And, but let me say that I think that is a—that is a legitimate 

and fair criticism of the rules now, and as a matter of fact, I can 

tell you that some circuit chiefs on their own have disqualified 

themselves under the disqualification provision in the rules. That 

they choose not to sit when the matter is being reviewed by the circuit council, and this is something that we can take up as well. 

Ms. JACKSON LEE. I would encourage that, and I appreciate the 

comment, Judge. 

Judge? 

Judge SENTELLE. Well, before I begin my direct answer, I’ve connected with all the North Carolina Members on the panel, and I 

would say that you and I have a connection that I’m sure you’re 

not aware of, in that my daughter is a professor at the University 

of Houston. 

Ms. JACKSON LEE. Very much have a connection. Thank you. 

We very much have a connection. I hope they are treating you 

well. One of the great schools of this Nation. 

Judge SENTELLE. Good. 

Ms. JACKSON LEE. Thank you. 

Judge SENTELLE. I would pretty much echo what Judge Scirica 

said. I had never thought about the chief judge passing on the matter that he had just passed on until I became chief judge. And although it is the case that nearly all of these complaints are frivolous and valueless, it still seemed to me more than passing strange 

that I was receiving a vote sheet on our computerized program to 

vote to affirm or reverse or vacate my own decision. 

Ms. JACKSON LEE. Your own decision, yes. 

Judge SENTELLE. I think you’re raising a very legitimate concern 

there. 

Ms. JACKSON LEE. And I thank you for that, and if we can leave 

that matter open, I think the judges were forthright in their assessment. And that is the thought as I had raised this question of 

the potential conflict and/or bias, not determined biased. 

I am going to now ask some policy questions, and I would appreciate it if you both, the professor and Mr. Wheeler, along with our 

judges. Just a broad issue on judicial discretion. Of course, we have 

mandatory sentencing in some aspects of the court. But have we 

so restrained the court that discretion now—and when I think of 

discretion, I think of mercy—is not a viable option. 

And I give as an example, this was a case dealing generically 

with alleged Medicare fraud. This is pervasively dealing with African-American doctors and an individual who was tried. The court 

said, ‘‘And I am going to make an example out of you.’’ 
86 

Now Members of Congress sit at this dais and say a lot of things, 

but I wonder how that relates to justice? And just quickly, I would 

appreciate what do you think the number of vacancies we have on 

the Federal bench does to justice? 

Mr. HELLMAN. Mr. Wheeler is the expert on vacancies. So he can 

give us some information about that. 

Mr. WHEELER. Well, the vacancy rate now you know is around 

10 percent. It’s more serious in some districts than it is in others. 

In your home State, for example, I think there are six vacancies. 

Ms. JACKSON LEE. Very serious, yes. 

Mr. WHEELER. And in a State that’s dealing with an overload of 

immigration and border crossing litigation. So I think some courts 

can handle the vacancies. There’s always going to be a few vacancies. I think at 10 percent, it’s pretty serious. 

And it’s not the House’s responsibility, but I think both the 

White House and the Senate have some work to do. I can’t say anything much more beyond that. 

Ms. JACKSON LEE. Thank you, Mr. Chairman. 

If I can get my other answer, if any of the witnesses would care 

to—care to answer the policy question on discretion maybe in writing if my time is—— 

Mr. MARINO [presiding]. Without objection. 

Ms. JACKSON LEE. Thank you. 

Mr. MARINO. The Chair now recognizes the Ranking Member, 

Congressman Watt. 

Mr. WATT. Thank you, Mr. Chairman. 

And thank all of my colleagues for their excellent questions. I 

generally try to go last because a lot of times they have other obligations and need to leave, and as the Ranking Member, I am kind 

of obligated to be here whether I need to leave or not. So, and they 

clean up a lot of interesting issues that I don’t have to deal with. 

Judges Scirica and Sentelle, Professor Hellman, and by affirmation Mr. Wheeler have made a number of suggestions for us moving forward. I am wondering whether there are any of those suggestions to which you react either overwhelmingly favorably or, 

even more important, probably overwhelmingly unfavorably? And 

so, that would be my first question. 

I am particularly interested, I think, in—not that I am not interested in the rest of Professor Hellman’s recommendations, but I am 

especially interested in the area that might be a little bit more controversial, and that is with respect to recusal of judges, which in 

my experience has been an area in which judges have tended to 

want to have less outside involvement than their own particular 

judgment about whether they have a conflict, perceived or real, or 

not. 

So if you all could address whether you have any particular negative or countervailing—maybe not negative responses to what Professor Hellman is—but maybe some countervailing arguments on 

the other side of what he has suggested might be a more appropriate way to frame the question. 

Judge SCIRICA. Well, recusal has always been a matter that is 

handled on direct appeal. It is part of the merits of the case. That 

is not to say that certain conduct might not also constitute judicial 
87 

misconduct and could, in effect, be prosecuted under both the Misconduct Act and the rules we have before us. 

If the judge, for example, exhibited some bias toward an individual or toward a group of people, or acted in a certain way that 

really was offensive in a certain manner, that person might very 

well be subject to a misconduct complaint, as well as to a direct appeal, because that individual did not recuse. 

So I’m not sure that I completely understand the thrust of Professor Hellman’s remarks in this area, but it seems to me that the 

system now is working quite well. People can even take interlocutory appeals on recusal issues during the pendency of a case. And 

I probably handle one of these a month, if not—if not more. And 

sometimes we grant them during the course of pendency of the action. 

Mr. WATT. Judge Sentelle? 

Judge SENTELLE. In common with Judge Scirica, I’m not sure 

that I’m fully understanding the thrust of Professor Hellman’s 

point. I don’t see that there is a great problem that needs to be 

fixed. Maybe there is, but I’m not seeing it at this point. 

We get apparently a good deal less recusal litigation than does 

the Third Circuit because I rarely see one, and I don’t think I 

would know—— 

Mr. WATT. Well, I think I am more concerned about the litigation 

aspects of it than the appearance aspects of it, and I would expand 

the question perhaps to include some appearances that are taking 

place on the Supreme Court, which—from which there can be no 

appeal, where there appear to be financial interests. 

And so, what do we do in that situation, I guess, is—and Professor Hellman, if you care to weigh in to clarify your suggestions 

in this area, I think the Chair would grant me a minute or two—— 

Mr. MARINO. Most definitely. 

Mr. HELLMAN. Thank you, Mr. Watt. I appreciate that. 

Actually, I have made no suggestions about changing the handling of disqualification motions in the district courts. I raised the 

question whether the current rule—which is that judicial disqualification decisions can never be the subject of a misconduct complaint unless there’s a real pattern or unless there is a bad motive—I raised the question whether that should be reconsidered. 

My suggestions about disqualification and recusal relate solely to 

the misconduct process itself, and the suggestion I made is that in 

the misconduct process itself, judges should follow the same rules 

that they do in litigation, namely they should disqualify themselves 

and should be required to disqualify themselves whenever their impartiality could reasonably be questioned. 

Right now, what the rule says, the judge, in his or her discretion, 

decides whether he or she should recuse. That’s it. I think the Section 455 standard should be applied in misconduct proceedings. 

That’s the only suggestion I made on that specific point. 

Mr. WATT. Responses? 

Judge SCIRICA. Very shortly, I’ve always believed that in certain 

circumstances a judge could run afoul of the recusal statute and 

the Misconduct Act at the same time. There can be overlap. And 

just because it’s a recusal motion does not necessarily mean that 
88 

a misconduct complaint, a valid misconduct complaint, might not 

lie. 

Mr. WATT. So are you suggesting perhaps some clarification on 

that might be appropriate? 

Judge SCIRICA. Well, I always thought it was completely clear, 

and I’ve applied it that way. 

Judge SENTELLE. Yes, I’m thinking of an example, Congressman, 

with respect to where a judge’s failure to recuse could be the subject of a misconduct complaint but was not directly appealed. Anybody can bring the misconduct complaint. You don’t have to be a 

party to the lawsuit. 

If you’re in the court and you see the judge committing misconduct, you can complain about it without being a party to the 

lawsuit. So that a person not—you don’t have to have standing like 

you do in an Article III proceeding. So that a person not a party 

to the lawsuit might see the lawsuit settle after she had seen the 

judge commit some gross act of failure to recuse, could still come 

in and make the complaint to the chief. And the chief could still 

take action as judicial misconduct. 

Now the broader principle of what Professor Hellman is saying, 

as far as making it plain how the judges should recuse in the misconduct proceedings, I don’t find troubling. 

Mr. WATT. Could I just ask one more question, Mr. Chairman? 

Just to clarify what happens in the Supreme Court now. There is 

no appeals process there. Do they have an internal process for kind 

of ferreting out potential appearances of conflicts, or is it solely in 

the discretion of a member of that high court whether to disqualify 

or recuse one’s self from a case? 

Judge SCIRICA. I certainly don’t want to speak on behalf of the 

Court, but the Court has said that it looks to the Code of Conduct 

that applies to all Federal judges. It looks to precedent. It looks to 

other treatises. They—like other judges—they may discuss these 

matters amongst themselves. 

They feel that these are the sources from which they have to derive guidance, and so I think that just like with us, that an individual judge decides whether or not he or she should recuse under 

a certain circumstance. And that is subject to review. 

Mr. WATT. I appreciate the response. I want to make it clear on 

the record that I am not questioning any particular decision that 

has been made by any of the Supreme Court Justices. We are just 

trying to see whether there might be some other process. 

Mr. Wheeler, did you have a point to make on that? 

Mr. WHEELER. Well, just very briefly, there was, as you may 

know, a bill introduced last year in the House that would have 

tried to regulate that. And I can certainly understand the frustration of some Members about some of the behavior they observed. 

But I think this may well be an area in which you just have to 

live with the results, that any kind of legislation is going to do 

more damage than putting up with the occasional instance in 

which a justice, whomever it may be, perhaps does something that 

raises the eyebrows. 

Mr. WATT. I thank the Chairman for his—yield back. 

Mr. MARINO. I believe that Congressman Holding would like to 

be recognized for a moment? 
89 

Mr. HOLDING. I want to thank the witnesses very much. And 

Judge Sentelle, as I said, it is always a pleasure to see you. I will 

be with Judge Whitney this evening, and I will convey your regards 

to him. 

I am going to submit a question to the record to flesh out a bit 

more on the local rules and review of local rules because it is something that interests me. 

So thank you all very much. I yield back. 

Mr. MARINO. The Chair recognizes the Chairman. 

Mr. COBLE. I also want to express my thanks to the panel. We 

appreciate you all being here, and we will do—we will plow this 

field again, I am sure. 

Yield back. 

Mr. MARINO. Thank you. 

This concludes today’s hearing. I want to thank all of our witnesses for attending. I would like to thank also the people in the 

audience for being here as well. 

Without objection, all Members will have 5 legislative days to 

submit additional written questions for the witnesses or additional 

materials for the record. 

Again, gentlemen, thank you very much. 

This hearing is adjourned. 

[Whereupon, at 3:26 p.m., the Subcommittee was adjourned.] 

91 

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Response to Questions for the Record from Thomas F. Hogan, Secretary, 

Judicial Conference of the United States 
92 

Honorable Howard Coble 

Page 2 

Answcr: 

Congress has authorized the district courts to promulgatc local rules through the Rules 

Enabling Act of 1934. 28 U.S.C. §§ 2071-2077. Pursuant 10 that law, Congress has 

prescribed that local court rules must be enacted by a majority of the district judges in a 

particular district, but not behind closed doors. Each district must have an advisory 

committee to make reconunendations to the judges. 28 U.S.C. § 2077(b). And, any 

proposed rules must be published for notice and comment from local practitioncrs, 

scholars, and the general public before they may be enacted. 28 U.S.c. § 207l(b). 

Congress, likewise through legislation, has established the oversight process for 

rcvicwing national and local rulcmaking activitics of thc Judiciary. For more than three 

quarters ofa century, the Federal Rules have been scrutinized under the strictures "fthe 

Rules Enabling Act, which reserves for Congress a seven-month period to rcvicw all such 

nationwide rules of procedure prior to their taking effect. Congress also provided a 

rcvicw mcchanism to monitor the local rules of district courts, through section 332 oftitle 

28. Under seetion 332, each judicial council must review the rules enaeled hy district 

eourts within its circuit for consistency with the national rules prescribed under section 

2072 of the Rules Enabling Act. Congress vested in the judicial councils the aufhority to 

modifY or abrogate any local rule found inconsistent with or duplicative of the national 

rules or Acts of Congress. Sections 2071 and 332 oftitlc 28, as well as Federal Rule of 

Civil Procedure 83, contemplate that the judicial councils will examine the local rules of 

their circuit and districts~including those in current operation and all proposcd 

challges~with an eye toward determining whether the rules are valid and consistent with 

Acts of Congress and the Federal Rule. Such examinations promote inter-district 

unifonnity and efficiency, and ensure adherence to the hasic objectives ofthe Federal 

Rnles~simplicity in procedure, fairness in administration, the jnst detennination of 

litigation, and the elimination of unjustifiable expense and delay.' 

In the first parab'l"aph of your question you express coocerns about how local rules and 

practices affect venue dctcrminatioIlS and the transfer of cases in the United States 

District Court for the Eastern District of Texas. Venue is currently governed by 

legislation, not by either the federal Rules or the local rules of district courts. Congress 

granted a privilege to plaintitfs to first select venne in civil cases, including patent cases, 

thereby establishing that multiple courts may have jurisdiction over a particular case. The 

privilege of initial venue selection is tempered hy the considerations of inconvenience 

1 The Judicial Conference Committee on Rules of Practice and Procedure and its advisory committee:;, which study 

the Federal Rules, have also periodically revle\ved the local rules throughout the United Stater;; to et1~ure their 

compliance with section 2071 and Civil Rule 83, and notify the Chief Judges of district courts when an <lrgJ.LEtble 

conflict with national law is identified. 
93 

Honorable Howard Coble 

Page 3 

specified in 28 U.S.c. § 1404(a). Section 1404(a) provides: "For the convenience of 

parties ,md witnesses. in the interest of justice, a district court may transter any civil 

action to another district court or division where it might have been brought." The 

Federal Rules of Civil Procedure do not supplement, extend, or limit the jurisdiction of 

the district courts or the venue of actions in those courts. Fed. R. Civ. P. R2. As 

discussed above, local rules must be consistent with the Federal Rules and Acts of 

Congress, and therefore they too must not extend or limit the venue of actions in the 

district courts. 

Any local rule or standing order promulgated by the United States District Court for the 

Eastcrn District ofTcxas that would purport to extcnd or limit the vcnue of actions in that 

district would be inconsistent with the present venue statute and the Federal Rules. 

Research by the Administrative Onice of the United States Courts indicates that in this 

particular circumstance there is no local rule of procedure of that court which operates to 

extend or limit thc venue of actions. Rcscarch further indicates that there is no local rule 

or slanding order discussing venue or motions praclice that is inconsistent wiill federal 

statutes or the Federal Rules. One related local rule of the Eastern District of Texas 

provides that "[ a]bsent court order to the contrary, a party is not excused from responding 

to discovery because there are pending motions to dismiss, to remand, or to change 

venue." E.D. Tex. Local Civil Rule CV-26(a). However, local rules hy design supply 

important details, and it appears that this rule serves as a clear warning to counsel that 

automatic, universal stays of discovery cannot be triggered by the mere filing of the 

motions specified. 

Complicatcd qucstions of law or fact often arise when the venue of a case is challenged. 

This is perhaps why Congress aflorded some discretion [0 plaintiffs when it comes to 

choosing where to file a lawsuit. Judges are likewise granted broad discretion under 

existing law in deciding fact-specific and case-specific questions such as where the best 

or most convenient location may be for trial of a case. Experience has shown that case 

management priorities are best set on a case-hy-ease hasis as dictated by the 

circumstances of the case and the status of the court docket. Congress sanctioned this 

policy in 28 U.S.C. § 1657, which directs that "each court of the United States shall 

detennine the order in which civil actions are heard and determined," with a handful of 

exceptions that arc not rclevant to the qucstion at hand. Delay in resolving genuine 

disputes over proper selection of venue is nevertheless an appropriate cause for concern 

for litigants. If a court has clearly abused its discretion to prioritize its own motions 

docket or when there has heen a clear abuse of discretion in deciding the merits of a 

motion to change venue, pctitions for writs of mandamus have been granted by the courts 
94 

f 

Honorable Howard Coble 

Page 4 

of appeals. In recent years, such appellate review and oversight has been exercised with 

respect to venue transfer motions in the Eastern District of Texas, including in patent 

cases.2 It is possible that these mandamus actions will resolve the concerns you have 

identifIed. 

I hope this response to the Conunittee's question is helpful. If we may be of 

additional assistance, please do not hesitate to contact the Otlice of Legislative Affairs, 

Administrative Office of the United States Courts, at (202) 502-1700. 

_~£~~~v- Thomas F. HO;;-~ Secretary -

2 See I (i Charles Alan Wright & .A.t1hur R. Miller, Fed_ Fmc. &!'/"OG JUris. § 3935A n.9 (3d ed_) (collecting cases), 
95 

Response to Questions for the Record from Arthur D. Hellman, Sally Ann 

Semenko Endowed Chair, University of Pittsburgh School of Law 
96 

f 

in writing a venue provision for the bill. But we were never able to get a 

consensus, and eventually the provision was dropped entirely. In part, this was 

because a series of mandamus rulings by the Court of Appeals for the Federal 

Circuit had cut back on abuse of venue in the Eastern District of Texas. However, 

if Congress thinks that abuses have continued, it can make a fresh start on writing 

patent venue legislation. 

Second, Congress has acted in 28 U.s.c. § 2071 to control local rule-making 

power, and it could certainly add additional restrictions. In addition, if Congress 

believes that particular rules or practices in some judicial districts have resulted in 

abuses, Congress can enact legislation to require a different approach nationally. 

For example, as part of the AlA, Congress added a new statutory provision on 

joinder of parties in patent cases. The statute overrides not only local rules but 

also the Federal Rules of Civil Procedure. 
97 

Response to Questions for the Record from Russell R. Wheeler, Visiting 

Fellow, The Brookings Institution, and President, The Governance Institute 

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Response to Question for the Record SubmittcS by the I l(1nOnlble George Holding 

("An Examinalion of the Federal Judicial Conduct and DisabiJity PrQCeSS.'· April 25. 

2013) 

Response SubmiucS by Russell Wheeler: 

Congress. in the Rules Enabling Act.. speci fi cally 28 U.S.C. § 2071. has authorized U.S. 

district courts to prescribe rules for ihe conduct of their business. providing however that 

such rules must he consistent with federal statutes and with the national rules prescri bed 

under 28 U.S.C. §2072. 

Congress may and dOllS IIlgislale to abrogate or modify the natiOllll1 rules. Arguably. it 

has the authorit}' to abrogate or modify a local rule. although such a practice could lead tn 

the kind of inconsistenc}' in the local rules Ihat Ihe Ruh:s Enabling Act seeks to avoid. 

A better course. it seems \0 me, ",.ould be \0 inquire nfthe Judicial Conference as to 

inconsistencies in any particular area betwccn local and national rules and statutes, 

perhaps starting with an oversight hearing on the subject, 

I note that IIccorrling to the Administrative Offi ce's Judicial Rusiness pr tlle United States 

Courts, avai lable at !Hm; 'lw"ll ;;o;oun~ guv 'Si lDli).tjc..;.Judicilllllusin'i"§GO I '.1I:i1\)', Table 

C3 , lhat ;n 2002. the 60 intellectual propen y eases filed in the Eastern District or Texas 

constituted 0.7% orthe 8,222 such filings nationally. In 2012, its 1,096 !1Iings were 9.4% 

of the 11,637 intellccttJal propeny cases Iiled nationally. 

Russel! Wheeler