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COMMITTEE ON JUDICIAL CONDUCT AND DISABILITY 

OF THE JUDICIAL CONFERENCE OF THE UNITED STATES 

- - - - - - - - - - - - - - - X 

 : 

 : 

PUBLIC HEARING on the Release : 

of Draft Amendments to : 

Judicial Conference Rules : 

for Judicial-Conduct and : 

Judicial-Disability : 

Proceedings : 

 : 

 : 

- - - - - - - - - - - - - - - X 

 Thursday, October 30, 2014 

 

 Washington, D.C. 

 The above-entitled matter came on for public hearing 

pursuant to notice. 

 BEFORE: 

 THE HONORABLE ANTHONY J. SCIRICA, JUDGE, CHAIRMAN

 

 THE HONORABLE SARAH EVANS BARKER, JUDGE 

 

 THE HONORABLE JOEL F. DUBINA 

 THE HONORABLE DAVID M. EBEL 

 THE HONORABLE JOEL M. FLAUM 

 THE HONORABLE JAMES E. GRITZNER 

 THE HONORABLE THOMAS F. HOGAN 

 
C O N T E N T S 

PUBLIC COMMENTS OF: PAGE 

 THE HONORABLE J. CLIFFORD WALLACE 3 

 CHIEF JUDGE EMERITUS, NINTH CIRCUIT 

 PROFESSOR ARTHUR HELLMAN 18 

 MR. RUSSELL WHEELER 49 

 MR. RAYMOND COHEN 64 

 
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 P R O C E E D I N G S 

 JUDGE SCIRICA: Good morning, everyone. 

 Judge Wallace, good to see you again. Thank you 

for coming here today. 

 We are having a public hearing on amendments to 

the Judicial Conduct and Disability Rules. 

 I am Judge Scirica and I will introduce the 

members of the Committee. Judge Flaum, to my far left, 

Judge Dubina, Judge Gritzner, Judge Barker, Judge Hogan and 

Judge Ebel. 

 And Judge Wallace, we’re delighted that you were 

able to take the time to come here to speak to us. You’ve 

been active and involved in this process for a long time. 

In fact, you were part of the creation of this entire system 

of judicial conduct and disability regulation. We are so 

pleased to have you here. 

 And you may proceed when you’re ready to go. 

 CHIEF JUDGE WALLACE: Well, thank you very much, 

Mr. Chairman. I’m grateful to the Committee for allowing me 

to make this presentation. I’m not making this statement 

for myself, but I’m speaking on behalf of the Judicial 

Council of the Ninth Circuit, of which I am a member. 

 Our Judicial Council met and discussed the issue 

thoroughly last Thursday at our regular meeting and I was 

designated to represent the Council at the meeting today. 
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I’m going to try my best to give you, as I understand, the 

position of our Judicial Council for whatever benefit that 

might be to your deliberations. 

 The issue of judicial misconduct complaints and 

how they should be addressed is not new, and many of us have 

been working on the issue for decades. However, because of 

recent shifts in process and procedures, our Judicial 

Council believes that proposed changes and changes already 

made can best be addressed if they’re put into their 

historical context. That I would like to review today. 

 The need for a local decentralized structure was 

described by Chief Justice Hughes in 1938. He saw the need 

for “greater attention to local authority and local

responsibility [resulting in]... a decentralization and 

distribution of authority which I think will greatly promote 

efficiency and will put the responsibility immediately and 

directly where it belongs with respect to the administration 

of justice in the respective Circuits.” 

 Indeed, even long before that, the issue was 

debated between the Federalists and the anti-Federalists 

whether the newly drafted Constitution should be adopted. 

The Federalists opted for centralized power while the antiFederalists wanted the power to remain in the local arena. 

 The Supreme Court has not been silent on its part

as to the virtues of decentralization in judicial 
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administration. It is important for your deliberations, we 

suggest, that the Supreme Court has already made clear that 

the policy conclusions of the Judicial Conference are not 

binding on lower courts, and instead are entitled respectful 

consideration, as pointed out in Perry v. Hollingsworth. 

 Associate Justice Stephen Breyer, who we all know

was a former Chief Circuit Judge before he went on to the 

Court, and responsible for the 2006 Breyer Report stated in 

his dissenting opinion in Perry, “for the past 80 years, 

local judicial administration has been left to the exclusive 

province of the Circuit Judicial Councils, and this Court 

lacks their institutional experience.” 

 Then quoting Professor Fish, from their creation,

"[t]he Councils constituted... a mechanism through which 

there could be a concentration of responsibility in the 

various Circuits-- immediate responsibility for the work of 

the courts, with power and authority... to insure competence 

in th[eir] work." "For that reason," stated Justice Breyer, 

"it is inappropriate as well as unnecessary for this Court 

to intervene in the procedural aspects of local judicial 

administration. Perhaps that is why I have not been able to 

find any other case in which this Court has previously done 

so, through emergency relief or otherwise.” 

 He then cites to Justice Scalia, who stated in a 

concurring opinion, “I do not see the basis for any direct 
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authority to supervise lower courts.” 

 Nor was Justice Breyer "aware of any instance in 

which th[e] Court has preemptively sought to micromanage 

district court proceedings as it does today.” 

 Turning to more recent historical context, 

following Chief Justice Hughes’ preference, Congress 

established the Judicial Councils of the Circuit. It 

logically followed that Congress would, and did, provide the 

Judicial Councils with power to enter orders, administrative 

orders, a power not granted to the Judicial Conference of 

the United States, or to the District Courts, or to the 

Courts of Appeals. This power resides only in the Judicial 

Councils of the Circuit. 

 That administrative power from the legislature is

direct and significant for purposes of this hearing. It 

empowers the Judicial Councils to enter all orders for 

administration of the business of the courts. It is 

significant because this power was not granted nationally, 

or to the District, or to the Circuit Courts. 

 So this is the basic framework pursuant to which 

any disciplinary proceeding must function. Only the 

Judicial Councils have the power to enter orders dealing 

with discipline, short of impeachment. 

 It appears to the Judicial Council of the Ninth 

Circuit that over the last few years this decentralized 
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power of the Judicial Councils seems to have been 

diminished, and the Judicial Conference of the United 

States, with this Committee, has evolved from an advisory 

role to what appears to us to be more of a policing role. 

At no time in the history of the court has such an 

organization been adopted, so it is important to trace its 

evolution. 

 The first attempted major threat to this delegated 

power was in 1975 when Senator Nunn of Georgia introduced a 

bill that would create a mechanism to be housed in 

Washington, D.C. which could remove judges without 

impeachment. The proposal was approved in principle by the 

Judicial Conference of the United States, although it was 

doubtful it had any great support from the judges. Indeed, 

Chief Justice Burger said to me the concern was that 

Congress might do something worse, his words. I do not see 

how it could have been. 

 The real debate was whether the Judicial Councils

could perform judicial correction, short of impeachment, or 

whether a specific amendment had to be made. Eventually it 

was deemed prudent by most to amend the current Judicial 

Council authority so more judges would support it. Three 

Judges, Judge Browning, Judge Hunter and I drafted the 

amendment, which was subsequently introduced and adopted in 

1980 and became the Judicial Conduct and Disability Act, 
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which continues to govern all of the misconduct proceedings 

today. 

 The Judicial Conduct and Disability Act was tied 

to the existing power of the Judicial Councils by limiting 

the authority to censor federal judges only if that conduct 

interfered with the business of the courts. This 

accomplished two things. First, it identified the context 

to be considered by the power already designated to be in 

the Judicial Councils. Second, it limited the misconduct 

program to acts which interfered with the business of the 

courts. The personal life of the judge was to remain 

private, unless it interfered with the business of the 

courts. 

 Subsequently, we had the Kastenmeier Commission. 

This was the first review of how well the Circuit Councils 

were applying the statute, which was done about 13 years 

after the adoption. And the investigating commission was 

chaired by Representative Robert Kastenmeier. Mr. 

Kastenmeier chaired the committee, which authorized the 

statute and its subsequent review. Thus, these findings, I 

suggest, are significant. 

 The National Commission found that the system of 

formal and informal approaches to the problems of misconduct 

and disability is, in the words of the Commission, "working 

reasonably well." I point out that the investigation was 
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the system of formal and informal approaches, and I’ll come 

back to that later. 

 The Commission wrote that it was not aware of any

other system that would strike as well a balance between 

judicial independence and accountability. The Commission 

further stated that “information, education, and dialogue 

are integral to the creation and nurture of a culture that 

encourages meritorious complaints of misconduct or 

disability while disposing with dispatch of those that do 

not belong in the system.” 

 The next investigation is one with which we are 

all familiar. Some national legislators questioned our 

system, primarily because of a few high-profile challenges 

claiming judicial misconduct. A committee was appointed, 

which made a study which has been known as the Breyer 

Committee Report released in 2006. 

 The Breyer Committee found “no serious problem 

with the judiciary’s handling of the vast bulk of complaints 

under the Act. The federal judiciary handles more than two 

million cases annually [,and]... the handling of [only] two 

percent to three percent of those is problematic," which 

speaks, I think, for itself. 

 "We find this last number reflective of the 

difficulties of creating an error-free system." I agree 

with that. As stated by Russell Wheeler, who was 
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substantially involved in the Breyer Committee 

investigation: By way of summary, as the findings and 

conclusions of the Breyer Committee demonstrate, the 

Judicial Councils are doing "a very good job of 

administering the Act." 

 Then what is the problem to be solved? Professor

Hellman refers to the all but two to three percent of 

problematic cases as findings of approving just the routine 

cases; that is, if I understand Professor Hellman correctly, 

and I am not being critical of him, I have known him for 

decades and we have worked together on many issues, but I 

think that he is saying there is a differentiation between 

the routine cases and these two or three percent of high 

profile cases. He refers to the 97 to 98 percent as routine 

cases. 

 They are far from routine, at least they were far

from routine when I was a Chief Judge. A good deal of my 

time was spent not calling investigating committees because 

I was able to work with a judge and get him to change his 

conduct so an investigation was not necessary and neither 

was censuring. That is, I saw the program not only as 

penalizing judges but helping judges where we can do so 

appropriately. And a good deal of my time was spent doing 

just that. As a result, we had very few committees, but it 

wasn’t that there were not problems or that they were 
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routine. The ninety-eight percent were composed of many 

cases that were substantial. So I cannot accept that 

distinction. 

 I think that the Breyer Committee found only five

of the seventeen high visibility complaints resolutions were 

problematic, not wrong, just problematic. That is, the 

Chief Judge and the Judicial Council may have been mistaken 

in these cases. I do not mind that criticism. I have 

looked over some of them. I would have acted myself, but 

that is not my job and I find that from the sidelines the 

decisions are much easier than when you are at the bench and 

have to make them. 

 But what then is the real problem? The real 

problem is the small number of cases where the Chief Judges 

made mistakes, or probably made mistakes. That is the 

problem to be solved. What seems to me the problem then is 

not recreating the entire process: it is focusing on the 

real problem of insufficient training of Chief Judges. 

 When I became a Chief Judge, there was no training 

at all for Chief Judges. There was for District Court Chief 

Judges but not for Circuit Court Chief Judges. I went to 

the Administrative Office and suggested I needed training, 

and they developed the first training program for Circuit 

Chiefs and I was the only student. 

 Since then, the Administrative Office is doing a 
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much better job, but my view is we do not do enough training 

of the Chief Judges. Some teachers do not make very good 

principals. Some judges are not the most effective chief 

judges. We have to recognize that it is a different skill 

than judging. If the system will depend on decentralization, 

then the system is required to make sure Chief Judges are 

trained in how to be a Chief Judge. Merely because they 

watched somebody else does not mean they are prepared for 

the job. They may have been seeing inappropriate or 

incorrect methods being used. 

 So I think the focus should be on the real 

problem, which is training Chief Judges to administer the 

misconduct program effectively. The Breyer Committee made 

suggestions that it believed would reduce the difficulty 

with the small percentage of high visibility complaints. 

That is fine. Maybe they will work. 

 But I think the real problem of training has not 

been addressed sufficiently, and I think that either this 

Committee, or the Administrative Office, should have the 

responsibility of administration training for a Chief Judge. 

It should include how a Chief Judge should function in 

supervising the misconduct statute. The Chief Judge has to 

know that just because a failing judge is your friend does 

not mean that you can fail to act. 

 But a person does not have to be a Chief Judge, it 
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can be turned down. But if they are to be a Chief Judge, 

they should be trained to take the responsibility and be 

required to carry it out. 

 Thus, I conclude that appropriate training is 

where this Committee should focus its attention. We could 

continue with the decentralization but train Chief Judges so 

they will carry it out. There’s no one else that can do it. 

As Harry Truman said, the buck stops here. 

 It seems to our Judicial Council that the obvious

answer is not redesigning the judicial correction process, 

but decreasing the five high profile cases by implementing 

specific training for the Chief Circuit Judges. 

 We were advised that there has been some training, 

but we suggest that that issue deserves further review. In 

our view, new rules were adopted to solve both what the 

Kastenmeier and the Breyer studies indicated was not the 

problem. The Kastenmeier Commission said the Councils are 

working reasonably well. The Breyer Committee stated there 

was no serious problem. Professor Wheeler said the Councils 

are doing a very good job. 

 Has the Judicial Conference of the United States 

and this Committee gone too far? In the respectful view of 

the Judicial Council of the Ninth Circuit, it has tried to 

broaden the statutory term "business of the courts" to a 

foreign meaning by rules. For example, consider Section 3, 
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the Definition section. Rule 3(h) recognizes “cognizable 

misconduct,” but extends it beyond interference with the 

business of the courts by citing ethical aspirations, as if 

they were a necessary part of the wording of the statutory 

term “business of the courts.” It then identifies an 

ambiguous term, “lowering confidence in the Courts,” as part 

of the defined statutory term. 

 Further, the Judicial Conference adopted an 

oversight role, which has, in the view of our Judicial 

Council, become too tenacious. As I wrote in a judicial 

misconduct charge disposition quite a few years ago, the 

Canons cannot be the standard for judicial discipline. The 

Canons are aspirational goals, voluntarily adopted by the 

Judiciary itself, “designed to provide the guidance to 

judges and nominees for judicial office,” as quoted from 

commentary of Canon 1. 

 With the Act, Congress imposed a standard for 

discipline that is significantly lower and conceptually 

different from the ideals embodied within the Canons. We 

realize there is a difference of opinion on this. We have 

read the Committee reports. But the Judicial Council of the 

Ninth Circuit respectfully disagrees. 

 Since 2008, the Rules have required Circuit 

Councils to send documents to the Judicial Conference for 

monitoring and possibly for a compendium, which we have not 
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yet seen. Our Judicial Council has concerns about this 

practice, as well as a few of the proposed amendments, but 

in the interest of time our forthcoming written report will 

cover these issues. 

 This Committee has challenging work. The task 

ahead is not going to be easy. There is a lot of pressure 

on you. We admire your willingness to serve in this 

minefield. 

 While these remarks may have been direct, and I 

apologize if they were too direct, I assure you the Judicial 

Council of the Ninth Circuit is a team player, but we do 

have a definite point-of-view, and we know you will give it 

due consideration. 

 Thank you, Mr. Chairman, for your time. 

 JUDGE SCIRICA: Judge Wallace, thank you very 

much. We value your great experience in this field, both as 

a former Chief Judge of the Ninth Circuit, and the role that 

you played in the formulation and adoption of the 1980 Act. 

Your views will be given great consideration. 

 We look forward to your written commentary, and 

the sooner the better so that we can spend time on it, but 

unless you have to catch a train, I want to ask my 

colleagues if they might have any questions or comments. 

 Judge Barker? 

 JUDGE BARKER: Good morning, Judge Wallace, it’s 
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lovely to see you again. 

 CHIEF JUDGE WALLACE: Good to see you. 

 JUDGE BARKER: I must say the Ninth Circuit 

strategy in choosing one judge to come speak to us was 

perfectly played. You’re their franchise player; we know 

that. So we exchange compliments back to you by saying 

thank you for coming. Thank you for devoting your time and 

attention to this. 

 I have had the privilege of working with you from

time to time over many years and have always admired your 

strength of intellect, your contributions, your practical 

wisdom with respect to things, everything that I know you 

have touched. But it does seem to me that we face a 

different set of problems at this point than maybe you and I 

have faced along the way. And that is with a much larger 

and more complex Judiciary, a society that’s immersed in 

technology and the ease of electronic news coverage and 

exchange, and out of that setting it’s maybe sad to say 

there’s had to be more regimentation because the ability to 

measure fairness extends to so many more citizens and 

they’re drawn into that debate. 

 And speaking for myself only on the Committee, one 

of the pressures that we feel is not just to help and equip 

Chief Judges in the Circuits, but also to create a process 

that is transparent and fair, and that the judges below, 
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that means the judges below the Supreme Court, can expect to 

be administered in a steady-as-you-go sort of way. 

 I remember times just hearing about them when a 

lot could be done by a Circuit Chief, just by dint of 

personality and stature, accumulated wisdom and position. I 

think we may be optimistic to think it’s still got that sort 

of punch when the Chief Judge goes to settle these kind of 

problems. There’s punch for sure, but whether it has that 

sort of capacity, that’s what I worry about. 

 I’m very interested, of course, in how you view 

all of this. This whole field has had your fingerprints on 

it from the beginning. Thank you for helping us. 

 JUDGE SCIRICA: Any other comments or questions? 

 We would like to continue the dialogue and we will 

be calling on you and you should feel free to call on us at 

any time. 

 So with great thanks and appreciation from the 

Committee. 

 CHIEF JUDGE WALLACE: Thank you very much, Mr. 

Chairman. 

 JUDGE SCIRICA: Our next witnesses are Professor 

Arthur Hellman and Russell Wheeler, both quite familiar to 

members of the Committee. 

 And gentlemen, if you would come up. 

 Professor Hellman, are you going to lead off on 
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this? 

 PROFESSOR HELLMAN: I think I will. Thank you, 

Judge Scirica. Is this microphone on? 

 JUDGE SCIRICA: We hear you fine. 

 PROFESSOR HELLMAN: Great. Well, I want to thank

you, Judge Scirica, and members of the Committee for holding 

this hearing and giving Mr. Wheeler and me the chance to 

share our thoughts on the draft. We thought it would be 

helpful if we appeared as a panel because we cover many of 

the same subjects in our statements. And, in fact, I’ve 

submitted a very lengthy, detailed statement so I’m going to 

be somewhat selective, quite selective in these initial 

comments. And of course I stand ready to answer questions 

about anything in the statement, about aspects of the Rules 

I didn’t cover, or about Judge Wallace’s very thoughtful and 

interesting remarks. 

 JUDGE SCIRICA: Well, you can assume, Professor 

Hellman, that we have read your statement and we understand 

it. 

 PROFESSOR HELLMAN: Well, I was going to summarize 

briefly. 

 JUDGE SCIRICA: That’s fine. Please go ahead. 

 PROFESSOR HELLMAN: Okay, I’ll go ahead and do 

that and begin by talking about what is in the proposed 

amendments and then turn to some things that are not in the 
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proposed amendments but perhaps should be. 

 Most of the amendments in the July 23 draft 

involve matters of clarification or emphasis, but I’ve 

identified six revisions that do reflect changes of policy 

from the 2008 Rules. Five of those amendments, in my view, 

reflect sound policy and I hope the Judicial Conference will 

adopt them. One proposed amendment should be reconsidered. 

And at the risk of seeming perverse or unappreciative, I’m 

going to concentrate here and in fact speak here about the 

one policy change that I think is unwise. 

 And that’s the amendment to Rule 21(c), which 

deals with review by your Committee, the Conduct Committee, 

of Judicial Council orders. The proposed amendment would 

add one new sentence to that Rule. “If the qualified 

members are equally divided in their vote on a petition for 

review, the order of the judicial council will remain in 

force as though affirmed.” Now, affirmance by operation of 

law, because the tribunal is equally divided, is rare in the 

federal judicial system. We see it only occasionally but we 

do see it in the Supreme Court of the United States. We see 

it in the Federal Courts of Appeals, except Judge Wallace’s, 

which has its own system, when sitting en banc. 

 It is tolerated in those settings as a matter of 

necessity because these are settings where there is no 

possibility of substituting another decision maker for a 
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judge who is disqualified. That’s not true of the Conduct 

Committee and there is no reason to adopt the practice. 

 Moreover, although the draft amendment refers in 

general terms to an equal division in the vote, it turns 

out, if I’m reading the Rule right, that’s there is only one 

equal division that would be possible. That’s because 

neither the current Rule nor the amended Rule would allow 

the number of participating members to drop below five. So 

the proposed amendment would come into play only when a 

single Committee member is disqualified and the remaining 

six are divided three to three. And I’m going to suggest to 

you that that’s the last situation in which you’d want an 

affirmance by an equally divided Committee. Those, almost 

by definition, are the cases that are the most contentious, 

most difficult. The public needs a majority decision. The 

public needs an opinion and so does the judge who is the 

subject of the complaint. 

 Now, I can understand why you might be unhappy 

with the current Rule, which provides that when six members 

are qualified, no more, no fewer, the Committee will decide 

petitions for review by rotating panels of five. That’s an 

awkward arrangement. But if you don’t want to stick with 

that, the simplest alternative is to provide that when only 

six members are qualified, the Chief Justice must appoint a 

seventh judge to consider petitions and that is the course I 
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suggest. 

 Now, I think Mr. Wheeler will have something to 

say about one or two of the other policy changes and I might 

want to add to his comments, but right now I’d like to -- 

 JUDGE BARKER: Could I just interrupt. It’s me 

over here. 

 PROFESSOR HELLMAN: Yes. 

 JUDGE BARKER: I wanted to ask you about this 

three-to-three -- 

 PROFESSOR HELLMAN: Sure. 

 JUDGE BARKER: -- problem, because I’m intrigued 

by it. Would the Chief Justice appoint a member any time 

there are only six available, or would you have to wait to 

see if it’s a split vote. 

 PROFESSOR HELLMAN: I would not wait until it is 

split. It seems to me waiting until it is split -- you’re 

asking whether to wait until there are six and they are 

split? 

 JUDGE BARKER: Well, I mean in anticipation that 

there might be a split? 

 PROFESSOR HELLMAN: I think -- 

 JUDGE BARKER: There would have to be a seven 

judge vote every time -- 

 PROFESSOR HELLMAN: It ought to be seven every 

time. Yes, it seems to me that you put the appointed judge, 
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the extra judge in an extremely difficult position if you 

appoint that judge only after the six are split three-three, 

if I understand you correctly. Is that what you're -- 

 JUDGE BARKER: Yes. 

 PROFESSOR HELLMAN: Yes. 

 JUDGE BARKER: I’m trying to figure out when you’d 

ring up the Chief Justice and say we need another person. 

 PROFESSOR HELLMAN: When one of the seven of you 

is disqualified, Judge Scirica or the other presiding judge 

rings up the Chief Justice and says we need a seventh judge 

as the Rules provide. He’d start with a judge who has 

previously sat on the -- 

 JUDGE SCIRICA: So you would limit it to a -- 

 PROFESSOR HELLMAN: Excuse me? 

 JUDGE SCIRICA: You would limit it to a former 

member of the Committee? 

 PROFESSOR HELLMAN: I think the Rules now provide

sensibly that that would be the preference for a seventh 

member. Whether you would limit it, probably not because 

you might have a situation where it’s impossible to find, 

for some reason, a seventh member who has previously served. 

I would give the Chief Justice leeway, but I would keep the 

provision, which you have in the Rules, as I recall, saying 

that -- 

 JUDGE SCIRICA: If possible -- 
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 PROFESSOR HELLMAN: -- if possible, to appoint 

somebody who has previously served. And as you know, the 

total number of cases that the Committee has heard, somebody 

put together a compilation some years ago, it was eighteen 

at that time, and there have been maybe ten since. So we’re 

talking about an average of about one a year. Having the 

Chief Justice appoint a seventh member for the six-member 

Committees does not seem to me to be a major imposition on 

judicial time. 

 JUDGE GRITZNER: Professor, could you amplify on 

this concept that you believe the rotating panel of five is 

awkward, awkward in what way? 

 PROFESSOR HELLMAN: No, I’m sorry. I was 

speculating really on why you were changing from that. If 

you folks are comfortable with that, that’s fine too. 

That’s the other way of doing it. I thought that it might 

have seemed awkward to have one person sort of randomly 

rotated off and not participating. And I guess the other 

reason I thought you might have had in mind was that when 

you take that person out of the decisional process for that 

one matter, you break the continuity in the Committee; that 

if the next matter that comes up has some overlap or is 

related to it in some way, that member hasn’t participated 

in the deliberations. And it seems to me that if you have 

six that are not disqualified, it is probably a good idea to 
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have all six participating and then bring in the seventh out 

of necessity so that you don’t have an equally, not even the 

possibility of an equally divided Committee. 

 By the way, I don’t think there have been any even 

close divisions within the Committee, at least as far as 

public disclosure. Now what happened behind the scenes, 

obviously I don’t know, but it just seems to me having the 

seven is clean. It’s a very, very modest additional burden 

on judicial resources, which I know are very scarce. 

 JUDGE SCIRICA: We will give that matter serious 

consideration. 

 PROFESSOR HELLMAN: Well, let me say something now 

about two proposed amendments that may or may not reflect a 

change in policy, but which do raise some concerns. And 

these are two amendments that appear to respond to the Ninth 

Circuit Judicial Council’s handling of the complaint against 

Judge Richard Cebull. 

 The amendments involve variations on the same 

question. When a Circuit Council issues a disciplinary 

order based on the findings of a special committee but the 

time for appeal to the Conduct Committee, your Committee, 

has not run, may the Council withdraw its order and instead 

conclude the proceeding based on an intervening event? 

 The answer given in the proposed amendments is 

never. I think that the answer should be sometimes. Now, 
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these are complex issues from a technical standpoint, and 

they also implicate competing policy concerns. And it may 

be that I’ve misunderstood the thrust of the proposed 

amendments, and if I have, you’ll correct me, but meanwhile 

I’ll proceed. 

 The basic scenario is this. After reviewing a 

special committee report, the Circuit Council finds serious 

misconduct or a permanent disability but the judge refuses 

to resign or retire. The Council issues an order imposing 

discipline of some kind, but the order is not made public 

because the complaint is still subject to review as of 

right. Within the period when review can be sought, that’s 

63 days under the current rule, 42 under the proposed 

amendment, within that period the judge has second thoughts. 

He’s willing to negotiate a retirement or resignation. But 

if these amendments are adopted, the Council would have 

little or no leeway for negotiation, because it would be 

unable to conclude the proceeding and unable to withhold 

public disclosure of the full text of the order, as

initially issued. 

 I think that is too rigid. In the situation I’ve

described, I think the Council should have some discretion 

to modify or even abrogate that initial order. At least 

when disability is at issue, the Council should be able to 

conclude the proceeding and issue an order that does not 
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identify the judge, assuming of course that the matter has 

not become public, which changes everything. 

 More generally, I see no reason why the Council’s

decision should be frozen at the moment it is issued when 

under the Rules, and this I suppose is something that Judge 

Wallace was criticizing, but under the Rules as they are 

now, that Council decision is only one stage of an ongoing 

process. 

 So, I hope you’ll reconsider those two proposed 

amendments, again, assuming I’ve correctly understood the 

thrust of them. I think they do raise some difficult 

questions in which a rigid rule, an absolute rule does not 

adequately -- 

 JUDGE GRITZNER: So I’m trying to think how you 

would write the language to put in that discretion. Are you 

speaking to discretion on the part of the Circuit Council or 

the Judicial Conduct and Disability Committee, assuming 

obviously an appeal has been taken with the Judicial Conduct 

and Disability Committee, or both? 

 PROFESSOR HELLMAN: Well, it would be some of 

both. First, I guess, the first thing I would do would be 

not to put the proposed language into the Rules. And then I 

would put something into the commentary that would address 

the policy considerations that led the Council, I’m sorry, 

led your Committee to the conclusions that it reached in the 
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Cebull matter, but that outlined in some more general way 

the importance of the transparency that you were I think 

aiming at for very good reasons, but give the Circuit 

Council in the first instance, with some review by your 

Committee, this discretion, again, to negotiate a 

settlement. 

 And Judge, I agree with what Judge Wallace was 

saying about the importance of informal processes. Now, 

obviously by the time you get to a special committee report, 

you’re out of the stage of the pure, informal process, but 

it seems to me that some of the policy concerns are still at 

work there. And again, if the matter has not been made 

public, which is quite often in the case of disability, I 

would think it would be in the best interest of everybody if 

even belatedly the Council can negotiate a retirement or 

resignation. 

 JUDGE BARKER: We learn about these things, of 

course, by trying to unravel the knots that come before us 

to work on. So, if we made the words "final order of the 

Council," basically words of art so that like in a final 

judgment about which we District Judges are lectured with 

some regularity, if that signifies final judgment and then 

that’s discloseable, that has to be made public. It seems 

to me you could, under your proposal, pull back from that 

and say a "proposed order" or "proposed final order" and 
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that would give flexibility, as long as it doesn’t leap into 

or get pushed into that final category where it’s treated as 

a word of art that has to have disclosure. 

 Do you think that would work? 

 PROFESSOR HELLMAN: Yes, I think something along 

those lines, again, that given your Committee’s role under 

these new arrangements, I think it is fair to say or 

legitimate to say that the Council’s order is, in a sense, 

provisional until your Committee has given the go-ahead. I 

mean, for example, it is not published and it seems to me 

that one of the reasons for not -- and sorry, I shouldn’t 

say published. One of the reasons for not making it public 

until the time for review has passed is to give your 

Committee the chance to review it. 

 And I’m suggesting that it also gives a final 

chance at a negotiated resolution. And in a few cases, this 

is not the sort of thing that’s going to be invoked often, 

but it seems to me that in some instances it could be 

helpful. I mean Judge Wallace, back in 1978, was saying 

some rather similar things to what he was saying today, but 

he said something that was very, very striking about how he 

wanted to save the judge, not just to discipline, but to 

save the judge. And I think in some of these situations, if 

you allow the Circuit Council a little bit more flexibility, 

you can save a judge and also I think help the system. 
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 JUDGE GRITZNER: May I ask, Professor, if you had

any quarrel with Rule 24(a) as it presently exists? As I 

look at the amendment, the amendment makes it perhaps more 

clear, particularly with the phrase that you’re making them 

public as originally issued, but Rule 24(a) has always said 

that at the point of closure, all orders were subject to be 

made public. And so I’m wondering if you have a particular 

quarrel with the amendment as opposed to the original Rule, 

or if you had a problem with the Rule as it originally 

existed. 

 PROFESSOR HELLMAN: Well, I guess I maybe do have

a quarrel or a reservation about the literal language of 

that Rule, which is why I didn’t include this as a policy 

change and why your Committee viewed it as what was implicit 

in the Rule as it currently existed. 

 But again, it goes back to this basic point of the 

new role that your Committee has taken, and it does seem to 

me that that review period, which you propose to shorten, 

and I think that’s a good idea, but that just gives a little 

window that in a handful of cases will enable a kind of 

peaceful resolution of what could otherwise be some very 

unpleasant disclosures and a judge disgraced unnecessarily. 

 JUDGE SCIRICA: So you’re not, in order to 

effectuate that, you’re not proposing any amendments to 

24(a)? 
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 PROFESSOR HELLMAN: Well, I have to say I hadn’t 

thought about it in that sense, but I think I would probably 

want to give it some more thought to make clear that this is 

permissible. Now, maybe that could be done through

commentary, as Judge Barker was suggesting, about giving 

kind of flexible meaning to final order the way the Supreme 

Court gives flexible meaning to finality in other contexts. 

 JUDGE GRITZNER: And do I discern from your 

writing, your written materials, that at least with regard 

to the kind of change that occurred in the Cebull case that 

you would not be looking to allow that kind of a change? 

 PROFESSOR HELLMAN: Well, no, in the Cebull case,

you read my statement correctly. The pervasive sanitizing 

of that report, it seems to me, I think you correctly said 

that was impermissible, that what had to be disclosed was 

something very close to what was in the original report. 

Now, whether everything in that original report had to be 

disclosed, whether, as I suggest in my statement there might 

be instances where a particular phrase or statement in the 

report was particularly hurtful to the judge, and if taking 

that one statement out will smooth a judge into retirement 

or resignation without changing the substance of the report, 

it seems to me that ought to be permissible. 

 But no, not the pervasive sanitizing. 

 JUDGE EBEL: Well, may I then ask are you 
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proposing an amendment to the Rule that says they can make a 

change when it would lead to a mooting of the problem, but 

not other changes? I mean I don’t know quite how, because 

you’ve now suggested that they just can’t rewrite things, 

and the only argument you’ve raised for why they ought to 

have some power to tinker would be to give them more 

authority to resolve the issue. 

 So I’m trying to decide whether you’re proposing 

only a limited exception that wouldn’t moot the controversy 

because the controversy is a historical fact, but that might 

satisfactorily, in their opinion, resolve it. Is that the 

time when they can amend? Or is it an unlimited opportunity 

to amend just because they have buyer’s remorse about 

something? 

 PROFESSOR HELLMAN: Well, it seems to me, first of 

all, this is one of those situations where disability may be 

different from misconduct. And I think it is also quite 

relevant whether there has been any public disclosure. The 

case where I think I would allow a change in disposition 

would be the disability that has not become public; that at 

the last minute the judge agrees to retire or resign. And I 

would let the judge do that and treat it as if that had 

happened before the Circuit Council had issued its report. 

 JUDGE BARKER: Well, if flexibility is the goal, 

and time to exercise some flexibility is necessary, then 
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we’ll defeat our purpose if we try to specify the instances 

in which flexibility is called for, don’t you think? 

 PROFESSOR HELLMAN: I’m sorry, the? 

 JUDGE BARKER: Well, you were responding that 

there might be a limited instance when there is disability 

at stake, and you want to withdraw the report, or change the 

report or something like that. If the goal is to allow this 

time for flexibility, we’ll undermine that goal if we try to 

specify the instances when tinkering with the report is 

permissible. 

 PROFESSOR HELLMAN: Yes, and I think some phrase 

like phrases that you use elsewhere in the Rules, you know, 

in extraordinary circumstances where the interest of the 

system and, you know, are suggested or required even, the 

Circuit Council may, within the period or before the time 

for review has elapsed, modify an order, something like 

that. 

 JUDGE EBEL: Let’s just use an analogy in the 

regular appeal system. Why do you suppose it is that once a 

District Judge enters a ruling and it’s appealed to the 

Circuit that the District Court doesn’t have a further 

opportunity to say, you know, now that I’ve read the 

appellate briefs to the Court, I kind of wish I had said 

something different, so I am just going to take a do over. 

I mean isn’t there some advantage to closure, just so the 
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train keeps running on time. 

 PROFESSOR HELLMAN: I think, sure, there are 

values in closure but I do think as the Rules emphasize in 

other contexts that this is not an adjudication. This is 

not a litigation. This is not an adversary process. And I 

think those differences do suggest a somewhat greater 

flexibility would be allowed here than in the litigation 

context where I agree, the bright lines -- 

 JUDGE EBEL: But you’re injecting now some other 

variables that are hard to put metrics on, suggesting that 

maybe there’s a greater ability to amend for misconduct than 

there would be for disability. I’m wondering just how we’re 

going to get finality or anyone is going to know when 

there’s finality. 

 PROFESSOR HELLMAN: Well, first, it seems to me 

that this kind of flexibility would come into play only in 

very, very rare cases. I mean first of all, we’re talking 

about a tiny subset of cases anyway. And within that subset 

-- 

 JUDGE EBEL: The very rare ones are potentially 

going to be some of the more public ones. 

 PROFESSOR HELLMAN: Well, I would say again that 

when something is public, I think as I said in my response 

to Judge Scirica, I think your options are much, much more 

limited. Once it’s public, once the public knows that the 
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allegations have been made, I think the Judiciary has an 

obligation to respond to them and the only changes I would 

allow would be in the nature of verbal changes tinkering 

with language. 

 I do think that disability that has not become 

public presents a different situation for the Council and 

this Committee and can be treated differently. And I have 

confidence in the ability of Councils and the Committee 

together to figure out what’s an appropriate amount of 

leeway there. 

 Again, this is not litigation. The principle of 

litigation that you’re referring to is that a case, a given 

case, a given docket number can be in only one court at a 

time. That’s what underlies that, that finality rule as you 

referred to. That’s not necessarily true of these 

misconduct proceedings. I mean, again, they’re not

litigation. They’re not adversarial. It’s a process in 

which I would hope the Councils and this Committee would 

regard each other as partners rather than as adversaries in 

any sense, and so I do think that calls for a different 

approach than the finality rule, that a case can be in only 

one court at a time. 

 JUDGE EBEL: Thank you. 

 JUDGE SCIRICA: So on the part of the subject 

judge, and the kinds of scenarios we’re talking about, the 
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moment of decision as to whether to retire or to resign, 

it’s a question of whether that’s after the special

committee issues its report but before the Circuit Council 

has rendered an opinion, or that time period is after the 

Council has issued its opinion and before the Judicial 

Conduct and Disability Committee has acted on that opinion. 

They are the two time periods we’re talking about, if I’m 

explaining it properly. 

 PROFESSOR HELLMAN: Yes, as I understand it, even

under your proposed Rule between the special committee 

report and the issuance of the Circuit Council order, at 

that point the judge can still retire or resign and the 

order is based on the assumption that he has retired or 

resigned. 

 Your proposal would change that to the moment the

Judicial Council issues its order. 

 JUDGE SCIRICA: And of course we’re referring to 

an intervening event, which would then conclude the

proceeding. 

 PROFESSOR HELLMAN: That’s right, and the 

intervening event would be the resignation or retirement of 

the judge. I suppose, conceivably, it could be something 

else, but that is the one that comes to mind, yes. 

 JUDGE SCIRICA: Good. Thank you. 

 JUDGE EBEL: Is there another value in addition to 
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the value of rehabilitating a judge? Are there other values 

of public confidence in the Judiciary? Let’s say the judge 

has done something that we would all agree is misconduct, 

and he’s gotten the special committee’s report saying it’s 

misconduct, and it’s on appeal to us and now he says, "I’m 

quitting. I would quit and remove that risk to the public 

if you would modify some things." Is there another party 

with an interest here, that is the public, to have 

sufficient disclosure to retain confidence in the Judiciary? 

 PROFESSOR HELLMAN: Very much so, and as I think I 

suggested in my statement and I will certainly say now, if 

there is a finding of misconduct and certainly if it has 

become public, it has to say enough to reassure the public 

that the Judiciary has dealt with it. 

 I mean, again, to go back to Judge Scirica’s 

point, if the judge did that before the Circuit Council 

issued its decision, I think there’s no question that that 

would, at least under even the draft Rule, that that would 

moot the proceeding. Is that your understanding of it? 

 JUDGE EBEL: It is. I agree with that. I do 

agree with your observation, yes. So your position is that 

if it could be permitted before the opinion, the decision is 

rendered, why shouldn’t it retain after the decision is 

rendered? 

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the issuance of the report is one step in a process, and I’m 

just suggesting that in a handful of cases you would push 

the point of no return a little bit further than the 

amendment or perhaps the original, the current version of 

the Rules, yes. 

 JUDGE BARKER: All right, well let me just ask you 

then, where would you put it? Where is the point of no 

return, because if it’s before the Council acts on the 

special committee’s report, we all think that’s fair, and if 

it’s after the Council acts, and the judge is on notice, but 

then the discretion is limited because the Council has acted 

and, at least under our Rules now, where would you peg it? 

Where is the point of no return? 

 PROFESSOR HELLMAN: Well, I suppose the latest 

possible point of no return would be when your Committee 

issues its decision. 

 JUDGE BARKER: So is it when we get the case? Do

we keep our confidentiality requirements throughout that 

process, even though the Council has spoken, so that no 

matter what we were going to do, if the case is terminated 

after it has been referred to us, those reports that 

preceded it have to be disclosed? 

 PROFESSOR HELLMAN: Well, you could, you could do

that. You could say that until your Committee, you could 

give the judge until your Committee has -- 
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 JUDGE BARKER: A last clear chance? 

 PROFESSOR HELLMAN: A last clear chance, or you 

could have some arbitrary point and say that, for example, 

once the time for review has elapsed, the 42 days, that 

that’s the deadline; it could be that when you start 

considering the 42 days, then at that point it is frozen. 

Any time short of when you issue your report, your order, is 

an arbitrary time, but you might want to put that in, just 

to put some pressure on the judge. I mean I agree that 

there are some countervailing values, and one way to deal 

with that would be to say, okay, the deadline is the 42 

days; that the judge has the last clear chance within 

that-- 

 JUDGE BARKER: So on the forty-second day the 

judge comes in and calls uncle and says "okay, okay, I’m out 

of here," then everything under your formulation, your 

proposal, everything before that would be cloaked in 

confidentiality? 

 PROFESSOR HELLMAN: Well, no, I’m suggesting a 

more, I guess, flexible and situational report. It would 

depend, again, I would draw distinctions between misconduct 

and disability, and I would draw distinctions based on 

whether the matter has become public, because again, once a 

matter has become public, and I was going to say something 

about that and I do in my statement, I think the entire 
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calculus changes. I think there is an obligation to 

disclose that doesn’t necessarily exist when, for whatever 

reason, the matter has not become public. 

 I think when the public has heard allegations, the 

Judicial Council and your Committee have an obligation to 

assure the public that the allegations have been dealt with, 

that there is a response, an appropriate response to 

misconduct. 

 When there has not been a public discussion, when

the matter has not become public and particularly when it is 

disability, it seems to me the balance shifts and then, in 

that situation, if the judge agrees to a quiet retirement, 

it seems to me the public interest is best served by that. 

 JUDGE BARKER: Well, I wish that the issues of 

conduct and disability were always easily distinguishable. 

It’s like the defendant who says I wouldn’t have done this 

crime except I was drinking. So they get mixed and it’s 

really hard to create rules that are that nuanced, 

Professor, and also give the kind of flexibility you’re 

talking about after the fact. We have to try to anticipate 

these things. 

 PROFESSOR HELLMAN: Well, a couple of comments on

that. One, I mean I haven’t seen every case, but I have not 

seen many where there’s been a mixture of, a genuine mixture 

of misconduct and disability. There are occasionally 
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allegations that mix them up, but in the cases that doesn’t 

seem -- I don’t think there are a lot of ambiguous cases, 

but I guess there are going to be some, sure, and much of 

this I would not put in the Rules. I would put it in the 

commentary to be worked out by the Circuit Councils and your 

Committee. 

 To that extent, I guess I agree with Judge Wallace 

that it is not necessary to have a set of rules that covers 

every situation. 

 JUDGE BARKER: It’s hard to legislate all of this, 

isn’t it? 

 PROFESSOR HELLMAN: That’s right. You can’t, and

again, this is, you need rules for litigation because it’s 

an adversary process and you have the parties involved, and 

you have to tell all the parties what their obligations are. 

You have to tell the judge, the court, how much the court 

can intervene, and so forth. 

 This is a non-adjudicative process, and I think 

there is room for this kind of greater flexibility.

 Well, that actually is a nice lead-in to what I 

was going to talk about next, which is the special problem 

raised by what the Breyer Committee called high visibility 

complaints. And Judge Wallace was concerned that the Breyer 

Committee, and I guess your Committee, have given too much 

weight to the mishandling of what is admittedly a small 
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number of cases here. 

 But on this point, I do agree with the Breyer 

Committee, because the numbers may be very, very small; they 

are very, very small, but they’re the only complaints that 

the public is at all aware of. So those are the only 

complaints that shape the public’s perceptions of how the 

Judiciary is handling complaints. 

 So I do think that it is necessary to design a 

system that will address those in a way that satisfies the 

public interest that Judge Ebel referred to. 

 The Breyer Committee also expressed concern that 

in considering misconduct complaints, the Judiciary would be 

swayed consciously or unconsciously by what the Breyer 

Committee called guild favoritism, inappropriate sympathy 

for the judge’s point-of-view, or de-emphasis of the 

misconduct problem. 

 And that concern, of course, is at its height when 

the complaint has received public attention. But this 

concern about guild favoritism, or maybe more to the point 

about perception of guild favoritism, carries, I think, some 

of its own risks. The danger is that the institutional 

actors within the Federal Judiciary seeking to reassure the 

public, as it does have to, that misconduct has not been 

swept under the rug, will act too swiftly or too severely in 

dealing with allegations that have received public 
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attention. 

 Now, I was suggesting in my exchange with Judge 

Barker that there is no formula for this. In fact, one of 

the things that we’ve learned over the past few years is 

that every case is different and that you can’t anticipate 

all of the facets that will cause difficulty. But I do 

think that you can have some rules, some guidelines that 

will guide Chief Judges and Judicial Councils, and also 

constrain their discretion. I think you need to do both. I 

think you need to allow some discretion, but there are some 

situations in which you should constrain it. 

 The most important of these Rules are those that 

deal with disclosure, but that immediately presents a 

problem that everybody here is aware of. The norm for 

judicial proceedings, generally, and for misconduct

proceedings in particular, is confidentiality. That’s 

certainly what the statute assumes: nothing is disclosed to 

the public until the process is at an end and there is a 

final decision. 

 Now, that confidentiality is perfectly fine for 

the routine misconduct complaints. To clarify, I guess a 

point in response to Judge Wallace, by the routine 

complaints I mean the complaints that simply allege the 

judge mishandled the case, or the judge was biased, that 

sort of thing. But when a complaint is identified based on 
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a public report, or when an advocacy group issues a press 

release announcing that it has filed a complaint against a 

judge, the norm is inadequate. The public is not going to 

be satisfied by a "no comment," nor is the Judiciary wellserved when speculation and rumor take the place of

information. 

 The 2008 Rules included one novel and important 

provision designed to deal with these situations. It’s part 

of Rule 23(a), and it says in extraordinary situations a 

Chief Judge may disclose the existence of a proceeding under 

these rules when necessary to main public confidence in the 

Federal Judiciary’s ability to redress misconduct or 

disability. 

 That’s a good start, but it doesn’t go far enough

for two reasons. It sets the bar too high and it doesn’t 

address the specific situations that experience tells us are 

going to arise. 

 Now, in my statement I suggest a couple of 

modifications of this, some less restrictive language for 

the basic provision; some specific events that should be 

announced publicly when the Judiciary’s institutional actors 

are considering a complaint that has become the subject of a 

public report; and I also try to define the circumstances 

that make a report public, in the sense that it should 

trigger special procedures. And the suggestion here is that 
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you ought to have a special set of procedures for public 

reports so you have to define those. 

 The details, though, are less important than the 

realization, which I think obviously everybody here does 

realize, that when allegations of misconduct become public, 

you’re dealing with an entirely different kind of problem 

and an entirely different kind of proceeding from the one 

initially contemplated by the Act and the Rules. 

 I think, Judge Barker, you asked Judge Wallace if

things have changed since the Act was conceived in the 1978 

to 1980 period. And I think in that respect it has; that 

the 24-hour news cycle, the ability of all sorts of people 

to go public, to bring matters into the public domain, that 

has changed things, and so these public matters require an 

entirely different approach -- not entirely different, but a 

substantially different approach than the one that everyone 

assumed could be applied across the board in 1980. 

 And I certainly don’t think I have all the 

answers. I probably haven’t even asked all of the 

questions, but this is an aspect of the Rules that I think 

needs attention. 

 JUDGE EBEL: So would you just, just for my 

information, tell me the exact Rule that you’re quarreling 

with and give us, could you, some language that you would 

tinker with? 
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 PROFESSOR HELLMAN: Well, if we go back to the 

current language, I would drop the language -- 

 JUDGE EBEL: Give me the cite to which Rule, where 

you’re talking? 

 PROFESSOR HELLMAN: Okay, this is Rule 23(a). It

is on page -- 

 JUDGE BARKER: 35. 

 PROFESSOR HELLMAN: -- 35, yes, the last sentence

of 23(a). I would drop the phrase "in extraordinary 

circumstances" and have the Rule read, 

"a Chief Judge may disclose the existence of a proceeding or 

interim orders in a proceeding when necessary or appropriate 

to maintain public confidence," et cetera, something like 

that. Or maybe just put in "necessary or appropriate" in 

the Rule and have the commentary discuss some of the 

particular orders. 

 I have in mind, actually, here what Judge Scirica

did as Chief Judge of the Third Circuit when the Kozinski 

website matter was referred to the Third Circuit by Chief 

Justice Roberts. You issued a public statement announcing 

the appointment of the special committee, and I think that 

statement included the members. 

 JUDGE SCIRICA: It did. 

 PROFESSOR HELLMAN: Did I recall that correctly? 

 JUDGE SCIRICA: Correct. 
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 PROFESSOR HELLMAN: And I think that immediately 

told the world that this was going to be considered. It put 

faces on the people who were going to be considering it, not 

just an anonymous committee, but here are the judges, and I 

think that really was an important step in addressing the 

concern that you raised in your earlier question about 

public confidence. 

 JUDGE EBEL: So were you proposing to delete that

first phrase? I couldn’t tell by the emphasis in your tone? 

 PROFESSOR HELLMAN: Yes, I would -- 

 JUDGE EBEL: "Extraordinary circumstances," you 

would take that out? 

 PROFESSOR HELLMAN: I would delete the phrase 

"extraordinary circumstances" because it suggests, well, 

it’s too demanding a standard. 

 JUDGE EBEL: But yet you’re telling us that this 

will only really arise in extraordinary circumstances? 

 PROFESSOR HELLMAN: No, I think that when there 

has been a public report, for example, when there’s a public 

report of misconduct and the Chief Judge identifies a 

complaint, which he or she is supposed to do, that should be 

announced. That’s extraordinary only in the sense that it 

doesn’t happen very often, but it should be routine in cases 

where it does happen. 

 In other words, what I’m suggesting is that there
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is a category of circumstances that is summed up under the 

phrase "an allegation has been made public." And I try to 

define that in my statement, what makes an allegation 

public. But when that happens, these disclosure obligations 

should be triggered. 

 And you don’t just, you don’t need the word 

extraordinary because I think you define it in some much 

more particularized way. Now, there may be other 

circumstances, but that’s covered by deleting that word. 

 JUDGE EBEL: Any other matters you’d like? 

 PROFESSOR HELLMAN: Well, I think I will stop. I

had a few other things I was going to talk about, but let me 

just mention one and then turn the panel over to Mr. 

Wheeler. 

 I do suggest that in the next phase of its review, 

and I recognize that you can’t do it with these amendments, 

that the Committee should look into reorganizing and 

restyling the Rules. It’s really, these Rules are just not 

a very user-friendly document. And in my statement, I 

present a few specific suggestions on that. 

 The main one is to break up some of these very, 

very long Rules into separate Rules that will highlight some 

of these distinct concepts. And I don’t think that would be 

an enormously difficult thing to do. I think it would be 

helpful to the public and I think it would also be helpful 
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to the Chief Judges and the Circuit Councils. 

 I give one instance from the D.C. Circuit Council

this month where I think there is confusion between

dismissing and concluding. 

 So I would hope you would look into that in the 

next phase. But I will leave the rest to my statement, 

unless there are questions, and give Mr. Wheeler a chance. 

 JUDGE SCIRICA: Thank you very much, Professor 

Hellman. 

 Russell Wheeler, of course, is well-known to all 

of us. He is the former Deputy Director of the Federal 

Judicial Center and the principle resource on the Breyer 

Commission Report. 

 Good to see you, Russell, and welcome. 

 MR. WHEELER: It’s good to see you again, Judge 

Scirica and the other members of the Committee, and thank 

you for giving me this opportunity. 

 I should say that my statement covered a lot less

ground than did Professor Hellman’s. I endorse his

statement though with few exceptions, but generally I agree 

with most everything he said. 

 And I also agree with what he regarded as the 

substantive changes he proposed in the amendments, with the 

one exception he mentioned having to do with tie votes. 

 My comments, my suggestions about the Rules deal 
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pretty exclusively with the concept of providing the public 

information about how the system is operating, as well as 

providing information to potential complainants, to help 

them use the system and help them use the system 

responsibly. 

 One of these has to do with Rule 24(b). The 

Committee would change Rule 24(b) to obligate Chief Judges 

and Councils to post final orders on the court’s website. 

Up until now, the Circuits had the option and about half of 

them decided to post all final orders; the rest decided to 

post only exceptional orders. 

 There’s this concept in public records called 

practical obscurity, in which documents are public but as a 

practical matter they’re obscure because you can’t get to 

them. And final orders contained somewhere in the Clerk’s 

Office of the Court of Appeals are, for practical purposes, 

fairly obscure because most people just don’t have the 

resources to get to them. So I commend the Committee for 

that change. And it’s a pretty common sense change because 

now when you say public availability most people think you 

mean somewhere on a website. 

 I should say that change is going to enable people 

who are of a mind to do it to undertake more elaborate 

analysis of the patterns of complaint disposition. A lot of 

the categories in Table S-22 can be looked at in other ways 
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and people might want to do it and they can do that, they’ll 

be able to do that once the final orders are all available 

online, do it much more easily anyway. 

 But there is still a problem of practical 

obscurity in the sense that other people are interested 

principally in the extraordinary orders, or the orders which 

are outside of the routine, or something more than a Chief 

Judge’s dismissal of a complaint or a Circuit Council’s 

upholding a dismissal, dismissals for, in almost all cases, 

eminently sound reasons. 

 And that’s the reason that I suggest that the 

Rules mandate some way of directing the Councils and the 

Chief Judges to call attention to those very small number of 

orders which are not routine; those in which the Chief Judge 

does not dismiss the complaint; those in which he or she 

appoints a special committee; those in which the Circuit 

Council or the Chief Judge believes that their order 

represents a new interpretation of the Act or the Rules. 

 I suggested designating them just with an 

asterisk. Professor Hellman suggested a different approach. 

I’m less wed to which approach is better than the fact that 

it be done as an assistance to those who are in the press, 

the academics and others who are trying to, as the Rule 

said, get more information about how the Act is being 

administered. 
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 I would also, as I suggested in my statement, I 

would also direct the Councils and the Chief Judges, when 

they list the orders online, to designate or just give the 

number of pages. When you read these orders and you go over 

the orders on the various Circuit websites, they follow a 

pattern and they have different kinds of boilerplates and 

different formats, but the orders typically for any

particular Circuit will stay within a range of one to two 

pages, and other Circuits maybe four to five pages. When 

you see an order that’s 10 pages, you have an inkling that 

there’s something going on there out of the ordinary. It 

may be because there is a need for extensive interpretation 

of a phrase in the statute, which has not been interpreted 

before. As I point out, it could be one of those relatively 

few instances in which Chief Judges undertake the find facts 

reasonably in dispute, which they really should leave to the 

special committee or the Judicial Council. 

 And I suggested a few other changes to Rule 24(b)

that I won’t go into here. 

 As to the availability of complaint filing 

information, this is Rule 28, and it makes two slight 

amendments. It includes the complaint filing instructions 

among the things which should be posted on the website of 

the courts, and it also gives the courts the option of 

making the complaint form, the instructions and the Rules 
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available simply by a link, not simply to the Court of 

Appeals but also to the national court website, 

uscourts.gov. 

 I would go somewhat further, however. I would say 

that the judicial complaint material, the complaint form, 

the Rules and the complaint instructions should be, and I 

use the phrase "prominently available on the homepage" of 

each court’s website. And this is basically a melding of a 

Judicial Conference policy in 2002 which instructed all 

courts to include that information prominently on the 

website, and the Breyer Committee, which recommended that 

courts include the information, the material on the

homepage, regarding the homepage as synonymous with

prominent. 

 I took an afternoon off when I was preparing my 

statement and I looked at the 200 court websites and I asked 

myself the question, how many of them display the 

information that we’re talking about here on the homepage, 

or display it within one-click away? And I found several 

things. One is that most courts, a majority of courts are, 

indeed, putting the material on their homepage. The fact 

is, however, that some of these homepages are so cluttered 

with information that it’s really kind of hard to identify 

where the judicial conduct information is. So that is the 

reason why I would phrase the Rule as I did. 
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 And secondly, as I said, this is not going to be 

something new for the majority of the courts. Over half of 

the courts already put this material on the homepage, and 

the others, four out of five of them, put them there or 

within one-click away. So this is not a big change, but I 

think it would be of assistance. 

 I did include on page 4 of my statement the 

results of this little survey I did. If you would like more 

information on what I found, I’d be quite happy to provide 

it to you. 

 Third, I would also require the complaint forms, 

as they’re listed on the websites, to give the address for 

filing a complaint. And this ties in a little bit with 

Arthur’s suggestion about making the Rules more userfriendly. 

 The complaint form on the website for the Second 

Circuit has a face page, local instructions for complaints 

filed under the Act. And it repeats some of the 

instructions in the filing instructions and also gives the 

address of the Clerk of the Court of Appeals. That’s the 

only Circuit that does it that way, as far as I can tell. 

Others, sometimes in the rules that they post, Rule 7 will 

give the address of the Clerk of Court. But others, in 

other Circuits, the complainant is left to wander into Rule 

7 because that’s where they’re told to file the complaint, 
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and it says file it with the Circuit Clerk. And I can’t 

imagine how many people don’t sit and say, well, I don’t 

have a complaint about some Circuit, my complaint is about a 

magistrate judge. Why do I have to file it here? It’s not 

going to clear up that confusion, but it’s going to say 

clearly where the complaint ought to be filed. 

 I think it would save the time of not only the 

complainant, but surely of the Clerks of the District and 

Bankruptcy Courts who must get these complaints and either 

send them back or forward them. 

 JUDGE BARKER: Russ? 

 MR. WHEELER: Yes. 

 JUDGE BARKER: When you made your review of these

webpages, and thank you for giving us a day of your annual 

leave to do that, which one had the best page? Is there a 

best practices out there that you would draw our attention 

to? 

 MR. WHEELER: You know, a couple of years ago the

Judicial Branch Committee published a template, a suggested 

template for webpages, and it grew partly out of the Breyer 

Committee concern that there are a variety of things that 

statutes or a Judicial Conference say have to be on the 

webpage and they’re not there. And so the concern was we 

ought to, well, we can’t order them to be there, any more 

than the statute can, but we can put up a sample webpage. 
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 And so this template that they adopted, which I 

think less than half of the Courts use is, in my mind, very 

good. I’m no website designer but it’s clean, it’s simple, 

it’s direct and it does have judicial conduct material right 

smack dab in the middle of the homepage. 

 So I would refer you to that more than anything 

else. The interesting thing, though, even courts who say 

they use the template, slightly under half of them don’t 

have the judicial conduct material because these websites 

are constantly in evolution as best I can tell. The court 

says we have to change our website because we have new local 

rules and the IT guy says, "well, what’s all this judicial 

conduct stuff here? Why do we need that?" And out it goes, 

not maliciously but that’s just the way things happen. 

 JUDGE SCIRICA: Would it be better to handle these 

matters through a best practices, since there are constant 

changes, and sort of monitor it? 

 MR. WHEELER: I think the -- I’m sorry. 

 JUDGE SCIRICA: Just to monitor the webpages from

time-to-time? 

 MR. WHEELER: I think that’s already happening in

the sense that I’m pretty sure the Administrative Office, 

the part that staffs the Judicial Branch Committee, monitors 

the websites, and I think they also send out periodic 

advisories. 
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 The point you’re making, and you’re right, is the

Rule change is not going to change behavior for everyone, 

but at least it’s a start. But I think, yes, it would be a 

good idea for the Committee staff to do that monitoring as 

well, and just remind courts that there are certain things 

that the Judicial Conference has the authority to mandate be 

there and, indeed, should be there. 

 JUDGE SCIRICA: Any comments or questions for Mr.

Wheeler? 

 MR. WHEELER: I wanted to add one thing, if I may, 

Judge. 

 JUDGE SCIRICA: Yes, of course. 

 MR. WHEELER: Arthur and I both referred to the 

matter which arose in the Eleventh Circuit in August where 

there was posted on the website of the Court of Appeals on 

the Court of Appeals letterhead an announcement about cases 

being suspended from a District Judge there who was involved 

with a misdemeanor charge. 

 And his point was that perhaps there ought to be 

clarity as to who was authorized to suspend the caseload of 

a judge. My interest, instead, was the inaccuracy of the 

press reporting about what was going on there with Judge 

Fuller. And this is confusion that probably would be there 

even without the announcement, which I think was a little, I 

had a hard time deciphering it because I don’t know what 
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authority the Court of Appeals has to suspend a judge’s 

caseload. But everybody reported, as they always do -- 

 JUDGE DUBINA: I don’t think they do. I’m from 

the Eleventh Circuit and I’ve researched that, and I agree 

with you. I don’t think there was any authority to do that. 

 MR. WHEELER: Well, thank you. I feel better 

about that. 

 JUDGE DUBINA: I do think there is authority by 

the Judicial Council to not assign anymore cases, but I 

don’t know how you take cases away from a judge; however, I 

think what probably cured it, assuming that was some sort of 

error, was the fact that the judge agreed to that. 

 JUDGE BARKER: We love waivers, you know. 

 MR. WHEELER: I suspect the Judicial Council does

have the authority to do that, but you know, I yield to your 

judgment. Arthur assumed that it was the Judicial Council 

operating because it had to be, but my point is this, there 

is confusion enough out there in the press about how this 

process operates. Part of that stems from the fact that we 

routinely refer to the Courts of Appeals as Circuits. And 

I’ve been uneasy with that for a long time, but that’s the 

way the Supreme Court does it, so I guess, you know, I know 

who is going to win that one. 

 But you get constant press reports about the Court 

of Appeals doing things that you know the Circuit Council is 
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doing, but they mix up Court of Appeals and Council, so all 

I am saying really is that the Committee, to the degree it 

can help clear up that confusion, it would be helpful. 

 I suggest an amendment to Rule 24, which may be 

going too far but at least it’s there, but it’s really quite 

interesting to read the press reports from Atlanta about 

what was going on there. And all I can say is the 

announcement didn’t cause the confusion, it just perhaps 

made it even a little worse. That’s all. 

 JUDGE SCIRICA: A little practical obscurity in a

different sense? 

 MR. WHEELER: Yeah, it’s the opposite of practical 

obscurity. 

 JUDGE SCIRICA: I don’t mean that it was 

intentional at all. 

 MR. WHEELER: Sure. 

 JUDGE SCIRICA: I don’t mean it in that sense. 

 MR. WHEELER: They’re very unobscured but yes, we

have the same plan. 

 JUDGE SCIRICA: Sure. 

 MR. WHEELER: I had a few comments about Judge 

Wallace and the statement about training Chief Judges, but I 

won’t go into that here unless you’re interested in it? 

 JUDGE BARKER: Well, could you, just, is that all

right, Mr. Chairman? 
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 JUDGE SCIRICA: Of course. 

 MR. WHEELER: Well, the Breyer Committee included

a fairly extensive recommendation for individualized, as you 

know, Judge Barker -- 

 JUDGE BARKER: Yes. 

 MR. WHEELER: -- for individualized sessions by a

member of this Committee with each new Chief Judge. That 

went nowhere. It did not get picked up when enforcing rules 

and regulations were adopted. 

 And I think the thought was, and you may have a 

better idea than I, but I think the thought was that there 

may be some danger if each Circuit is orienting its Chief 

Judge to do things the way the last Chief Judge did it. 

There is some benefit, perhaps, of a different perspective. 

So it would be worth the time of a member of this Committee 

to go to the headquarters or the site of a new Chief Circuit 

Judge and just spend a half day or a day going over the 

regulations. 

 We did find, the Breyer Committee did find some 

rather striking examples of Chief Judges, no disrespect, who 

really just didn’t understand the Act very well, as to what 

corrective action was, for example. Corrective action, in 

the minds of some, is when a Court of Appeals reverses the 

judge. Well, that’s not corrective action in terms of the 

Act. So that was a suggestion. 
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 When I was at the Judicial Center, we did, I think 

maybe every two years or so at the time of the Judicial 

Conference, have a seminar for Chief Circuit Judges, and the 

hot topic, of course, was how to deal with misconduct 

complaints and more than that, complaints of disability. 

But that’s rather impractical and every two years is not the 

same as striking when the iron is hot. 

 So the Committee may want to look at that Breyer 

Committee recommendation and reconsider whether it wants to 

do such a thing. 

 JUDGE SCIRICA: Good suggestion. Any other 

comments or questions? 

 Well? 

 JUDGE GRITZNER: Professor? 

 JUDGE SCIRICA: Did you have a question? 

 JUDGE GRITZNER: Yes. 

 JUDGE SCIRICA: Sure, Judge Gritzner has a 

question. 

 JUDGE GRITZNER: Yes, I wanted to ask Professor 

Hellman, with regard to the interplay between Rule 25(e) and 

28 U.S.C. Section 359(a), with regard to a judge that is the 

subject of a special committee investigation not serving in 

connection with any other matter that has to do with a 

judicial conduct proceeding, our Rules, of course, address 

it that far. And you pointed out what you believe to be a 
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tension between that limitation and our Rules applying only 

to further activity in the judicial conduct area, and 

whether it also applies, as the statute suggests, for any 

activity on a Judicial Council, or for that matter, on the 

Judicial Conference. 

 And I guess my question is one that is 

jurisdictional. And that is I understand why our Rules 

might apply to further participation in disciplinary or 

judicial conduct proceedings, but would it not be the 

judgment and responsibility of the Judicial Councils or the 

Judicial Conference to determine the extent to which any 

particular judge would be involved in matters not involving 

judicial conduct? 

 PROFESSOR HELLMAN: I suppose they do have 

independent responsibility to do that. I would think though 

that it is probably helpful to have a rule that is in accord 

with the statute. It seems to me that it is confusing to 

have a statute that says one thing and a rule that says 

something else. So it just seems to me that while the 

enforcement is probably in the hands of the Council and the 

Conference, maybe you wouldn’t get into enforcement issues 

if the rule said what the statute says. 

 JUDGE GRITZNER: Well, we may be on the same page

then because my concern is the enforcement, and whether or 

not the Rules for this Committee should be suggesting to the 
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Judicial Conference of the United States what an individual 

member of that group should be doing with regard to matters 

that are not judicial conduct matters. 

 PROFESSOR HELLMAN: Well, that’s obviously, you 

know, a very awkward thing to be doing, but I suppose that 

when a letter goes out to the subject-judge, as I assume it 

does, saying this is to inform you that there is a special 

committee that is investigating such-and-such a complaint, 

that that letter could say, you know, we inform you that 

this is what the statute provides, this is what the rule 

provides, and I think that a judge would abide by what the 

rule and the statute says when he or she has been told about 

it. 

 It’s not something that somebody would know until

that happens, but I think if it’s in the letter that tells 

the judge about the investigation, that would probably make 

it unnecessary to have any other enforcement authority, any 

other enforcement action, excuse me. 

 JUDGE GRITZNER: Thank you. 

 JUDGE SCIRICA: Any other questions or comments 

from the Committee members? 

 JUDGE BARKER: Let me just, if I may, Mr. 

Chairman, for a second, add another word of thanks to both 

of you for adding substantially to our thinking and our 

understanding. Both of you are such stalwarts in this 
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field, and those of us who try to labor in these vineyards 

too know where to go to when you’re speaking about them 

because it’s always helpful. 

 Today is the same, so thank you. 

 PROFESSOR HELLMAN: Thank you very much and thank

you for giving us a chance to express our thoughts on this. 

 JUDGE SCIRICA: Well, it’s been illuminating and 

very helpful to us. Should you desire to submit any 

statement post-hearing of matters that you’ve thought about 

some more, or matters that have been raised here, we’d be 

happy to receive them. 

 PROFESSOR HELLMAN: Well, thank you. I’ll be 

submitting my final version of my statement on Monday, I 

anticipate, and of course both of us are happy to respond to 

any additional questions, if there are any. 

 JUDGE SCIRICA: Good, good. With great thanks 

from the Committee, you’re excused. 

 PROFESSOR HELLMAN: Thank you. 

 MR. WHEELER: Thank you. 

 JUDGE SCIRICA: Good. Our final witness is Mr. 

Raymond Cohen. 

 Mr. Cohen? 

 MR. COHEN: Good morning. 

 JUDGE SCIRICA: Good morning, Mr. Cohen. 

 MR. COHEN: Thank you for this opportunity. 
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 JUDGE SCIRICA: Good. 

 MR. COHEN: My name, as you gather, is Raymond 

Cohen. I’ve never done anything like this before and I’m 

more-or-less a little nervous. 

 JUDGE SCIRICA: Well, we’re happy to give you 15 

minutes and you go ahead. 

 MR. COHEN: You’ll have time to get out for lunch

on time. 

 I’m just a hardworking citizen who finds it 

important to speak up when he sees something is wrong, and I 

appreciate the time you’re giving me. 

 As Dr. Phil would say, how is this whole process 

working? The proposed amendments, in my opinion, do not go 

far enough in modifying the Rules of Judicial-Conduct and 

Judicial-Disability. According to Table S-22, out of 9,416 

ethics complaints filed against federal judges over 10 

years, including 130 by attorneys who presumably have 

something to lose, only five resulted in actions taken, and 

only one in 2011, zero in 2012 and 2013. 

 In effect, no judge has been held accountable for

his or her ethical breach. The result is that in 99.95 

percent of the complaints, no action is taken. The cases 

where actions were taken is 0.05 percent. A company with a 

similar percent had recently been fined $25 million because 

fewer than one percent of its employees earned any income. 
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 In U.S. v. Zaken Corp, U.S. District Judge Dean 

Pregerson banned the Zaken Corp from advertising or selling 

work-at-home business opportunities and fined them $25 

million. Those who take advantage of Americans searching 

for an honest day’s work, depriving them of their savings 

will be held accountable. 

 The Judicial Conference needs to make additional 

changes in the misconduct rules so that meaningful results 

occur and judges are held accountable when ethical 

boundaries are crossed. 

 Those filing ethics complaints have an expectation 

of a fair hearing from the Judiciary, and this is not 

happening when 0.05 percent of the cases have action taken 

and 99.95 percent with no action taken. 

 New York State maintains a website for complaints

against New York judges. Six decisions, all dated in 2014, 

are published on the New York website upholding ethics 

complaints against New York judges. These six decisions 

total more than 10 years’ worth of actions taken on ethics 

complaints against the Federal Judiciary. Furthermore, New 

York has a PDF with 148 pages that list all the adverse 

ethics decisions against New York judges. 

 New Jersey, on its website, states that 40 percent 

of ethics complaints against New Jersey judges are 

investigated while 60 percent are dismissed. 
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 This large disparity is certainly shocking to me,

to say the least, and shows that reform is either long 

overdue, or we have very ethical federal judges. 

 Why should the status quo be changed? The 

decisions of the Federal Ethics Board are advisory and can 

be or are ignored because no enforcement actions follow 

these decisions. Most state judicial ethics committees have 

enforcement actions to back their decisions. 

 In post-politics, the Committee told the judge in

Maryland five years ago that his membership in an 

organization violated two canons of ethics provoking his 

immediate resignation from the board, which was the

appropriate behavior. 

 In 2010, three additional judges, including a 

Chief Justice from one of the Circuits were on the same 

panel. One judge said he did not feel compelled to resign 

and the other two did not respond. 

 Douglas Kendall who heads the Constitutional 

Accountability Center has succinctly stated the problem. 

The judicial ethics process is completely self-policing and 

unenforceable. 

 The Committee has Rule 11(g)(2) and four other 

Rules requiring that an order of a Chief Judge or an Appeals 

Committee forward their decision and supporting memorandum 

to the Conduct Committee. This needs to be changed. Either 
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the Conference saves the paper and stops the reports, which 

I hope doesn’t happen, or they add teeth to the Rules that 

provides for enforcement against action against judges who 

violate the Rules or where the Committee doesn’t follow its 

own Rules. 

 My recommendations are do the right, do what is 

right and have a meaningful process with published outcomes. 

This idea of having, you know, of creating a problem for 

public confidence in the Judiciary really, to me as a 

layperson is inappropriate. There’s no other organization 

out there that uses that criteria, and while I do recognize 

the fact that, you know, you need to be judicious about it, 

to keep using that as a primary concern to me is repugnant. 

 And maybe that is a strong word, but no other 

organization uses that criteria and as judges everyday 

deciding cases where there’s fraud and people concealing 

things, this is concealment as well, at least in my humble 

opinion, though I’m not a judge and I’ve given up practicing 

law, though I’m not a lawyer. 

 Do not protect those judges who are not doing 

their job. Most judges are hardworking, conscientious and 

do what they’re supposed to do. But there’s a small 

minority of judges who fail to do this, and I think one 

thing, listening to the conferring, you need to distinguish 

between judges who are disabled, and they should be given a 
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great deal of latitude, and judges who are just not doing 

their job. There should be two distinct pathways, in my 

opinion. 

 The Committee should make changes and should make

its own changes before the court of public opinion or 

Congress demands that these changes be made. What could be 

concealed 20 years ago will become widely disseminated on 

the Internet by going viral where millions will view the 

message. This really undermines the policy of having 

confidence and, you know, whether the issue is known or 

unknown. This would seriously damage the reputation of the 

Judiciary and the individual judges involved. 

 For example, the Center for Public Integrity found 

that 10 percent of the federal judges had a financial 

interest in one of the parties to a lawsuit that they were 

adjudicating. Where was the Administrative Office or the 

Committee? 

 Eventually, concealment of material problems 

becomes public. For example, the December 6th, 2004 New 

York Times article stated that Judge Daniels of the Federal 

District Court of Manhattan took over three years to decide 

if Regina Adams would receive her ex-husband’s pension. 

Judge Daniels also took over three years to hear an appeal 

for a prisoner with HIV, who filed a petition challenging 

his state court conviction. By the time Judge Daniels got 
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around to deciding the case three years later, the prisoner 

had died. 

 That was 2004 and now we can jump to 2014. A more 

recent disclosure is from ABC Action News on July 30th, 

2014. Steven Mozdzierz, and I butchered his name, is a 

former Marine who has had three surgeries on his knee 

following seven years in combat. He’s been waiting over six 

years for Judge Barclay Surrick of the Eastern District of 

Pennsylvania to decide his case. And the six years is 

unacceptable in any case, and the fact that it’s a veteran 

really is an outrageous action or inaction on his part. 

 Accountability is what is required, and failure to 

be accountable should be an ethics violation along with 

enforcement action. A judge should not be permitted to let 

cases languish, or decide cases on some of the issues and 

ignore other ones. Only the Supreme Court has the right not 

to decide a case, and ignoring issues is unacceptable and 

should be an ethics violation with consequences. 

 When judges know that violations go unpublished, 

even judges with stellar reputations will take advantage. 

Judge A, B and C heard a case. An ethics complaint could 

have been filed against all three judges; however, Judge A 

was arbitrarily chosen. He was the lucky one. Who do you 

think heard the ethics complaint? Judge B. Had Judge B 

found Judge A guilty, Judge B would have found herself 
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guilty as well. 

 This is a definition, I believe, of conflict of 

interest. Subsequently, the dismissal was appealed to the 

panel in the Circuit. Who participated in that decision? 

Judge C. One would say that maybe this is an isolated 

incident; however, when the original summary judgment was 

issued after oral argument was canceled, an en banc review 

was requested, which was denied. One half of the ethics 

panel was conflicted out since they had rendered a decision 

that was the basis of the ethics complaint. 

 In this situation that I describe above where 

Judge A, B, and C heard a case, no ambiguity exists, at 

least in my opinion, as to a conflict of interest since that 

is what Judge B is the definition. 

 Counseling doesn’t help the complainant. You 

know, you take a judge and you counsel him, or discipline 

him, or do whatever. What happens to the decisions he’s 

made? Are they reversed? Sure, they can go up on appeal, 

but of the cases appealed, what percent, what percent are 

actually heard for whatever, you know, due to economic 

reasons, et cetera. Counseling a judge is insufficient if 

it doesn’t help the people who had the problem. 

 There has to be transparency, accountability and 

there has to be fairness. New York and New Jersey both have 

non-lawyers and non-judges on their panel. Furthermore, 
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expecting one judge to find another judge violated the Code 

of Conduct is ludicrous when they have lunch together. The 

Code of Conduct for ethics complaints should be exactly the 

same as for hearing lawsuits. By statute, 28 U.S.C. 47, a 

judge is not able to hear an appeal that he or she decided 

while in a lower court, even when the question may be easy 

of solution, as quoted, as to quote Rexford v. BrunswickBalke-Collender. That’s a Supreme Court case. 

 The Code of Conduct should be the same for ethics

complaints, as well as hearing lawsuits. The Administrative 

Office needs to have administrative controls in place, and 

when you have each Circuit having its own system, it creates 

a lot more, it’s a lot more difficult. And they should have 

non-lawyers and non-judges involved, as well as 

transparency, which is what New York and New Jersey does. 

 As I explained before, the public confidence is, 

to me, not a valid criteria, and as far as how high profile 

is concerned, if I have an ethics complaint, should I make 

it high profile in order that it gets heard? That doesn’t 

seem right to me, but with the Breyer Commission statements 

in Rule 26, that seems to be the action. Post it in the 

Wall Street Journal or the Washington Post. 

 Hopefully the Committee will back its ethics 

decisions with enforcement action. We’re in the 21st 

century and nothing is off-limits to the Internet, so this 
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public confidence thing can be a little bit more tricky than 

back in the 80s when this was originally discussed.

 Does anyone have any questions? 

 JUDGE SCIRICA: Mr. Cohen, thank you very much. 

We appreciate hearing your views and we will certainly 

consider them. 

 Any questions or comments from the Committee? 

 MR. COHEN: Thank you for your time. 

 JUDGE BARKER: Thank you. 

 JUDGE SCIRICA: Good. Thank you. 

 The hearing is now adjourned and we thank everyone 

for their help in this matter. 

 (Whereupon, at 12:02 p.m., the proceedings were 

concluded.) 

 

 
 

73 

 DIGITALLY SIGNED CERTIFICATE 

 I certify that the foregoing was transcribed from

an electronic sound recording of the proceedings in the 

above-entitled matter with revisions made to produce this 

final work product by and at the request of the Office of 

the General Counsel, Administrative Office of the United 

States Courts. 

 

 

__________________________ 30 October 2014__ 

Steven Zeigler Date 

DEPOSITION SERVICES, INC.