"The recent wave of accusations of sexual misconduct against elected officials, politicians, business leaders, cultural icons, and celebrities is a social phenomenon of extraordinary importance. It has been characterized by allegations by women of sexual misconduct ranging from criminal conduct to rude behavior. The responses of the accused range from denial to apparently genuine apology, to investigation, resignation, and discharge. Lawsuits often follow. Settlements rarely acknowledge responsibility. Sometimes the settlements are so large that they appear principally to have purchased silence. But we lack—particularly for elected officials—an open process and clear rules for removing someone elected to office.
Other than lawsuits, there often appears to be no way to verify allegations, or to soberly assess the gradations of fault by the accused offenders. Firing private employees at will or for breach of contract does not concern us. But overriding the voters’ choice is a matter of much greater concern. The responses to allegations appeared sometimes to be the panic reactions to public relations disasters by political peers, party and legislative leaders. Not every offense is of the same gravity. Removal of an elected official, state or federal, should be the result of a process that is orderly and lawful. A valuable reference point is the process employed by the United States Courts.
We were taken aback by the allegations of sexual misconduct by Alex Kozinski, the former chief judge of the U.S. Court of Appeals for the Ninth Circuit. Six women, former law clerks or externs, describe behavior of the crudest sort. Kozinski has issued a soft denial, saying he “would never intentionally do anything to offend anyone and it is regrettable that a handful have been offended by something I may have said or done.” He later added, “I don’t remember ever showing pornographic material to my clerks” and, “If this is all they are able to dredge up after 35 years, I am not too worried.”
Federal judges enjoy life tenure but they “shall hold their Offices during good Behaviour” (Constitution, Art III, § 1). That is a standard markedly less burdensome than that of presidential impeachment which is limited to grounds of “high crimes and misdemeanors.”
Kozinski’s response to the charges minimizes his own conduct, which demands careful scrutiny.
An orderly procedure for such complaints is found in the Rules for Judicial Conduct and Judicial Disability Proceedings. (http://www.uscourts.gov/sites/default/files/guide-vol02e-ch03.pdf)
The rules govern proceedings under the Judicial Conduct and Disability Act, 28 U.S.C. §§ 351-364, “to determine whether a covered judge has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts or is unable to discharge the duties of office because of mental or physical disability.”
The process with regard to Judge Kozinski began last week when the Chief Judge of the Ninth Circuit ordered a judicial misconduct inquiry to begin. “To ensure confidence in the impartiality of any proceedings and exceptional circumstances appearing,” the Chief Judge requested that the Chief Justice of the United States Supreme Court transfer the complaint to the judicial council of another circuit for review and disposition. There “a special committee” composed equally of circuit and district judges will be appointed. The committee must issue a comprehensive report and recommendations to the circuit’s judicial council. A complainant or judge aggrieved by the council’s action may petition the Judicial Conference of the United States for review.
The subject judge has the right to counsel and other protections, including the text of statements taken from any witnesses. Complainants may submit written testimony. But unlike our Advisory Committee on Judicial Conduct, there is no right to cross examine witnesses. Our court requires proof beyond a reasonable doubt. The federal statute is silent on burden of proof.
A circuit council must refer a complaint to the Judicial Conference of the United States if it determines a circuit judge or district judge serving on “good Behaviour” may have engaged in conduct that: (A) might constitute ground for impeachment; or (B) in the interest of justice, is not amenable to resolution by the judicial council.
This process recognizes that an appointed Article III judge is owed particular protection because impeachment and removal from office rests with the Congress alone. The process is designed to protect the public and secure its confidence in the integrity of the judicial process. It does not substitute for any civil remedy a complainant may have, nor does it obstruct any criminal investigation.
The judicial discipline procedure provides a useful reference in the case of elected officials who are responsible directly to the electorate. They should neither be hounded from office nor barred from a legislative chamber without a process accessible to complainant and respondent. A procedure like the federal may be cumbersome, but it is commended by the maxim “justice cools the fierce glow of passion by passing it through reflection.” That principle is what appears to be sacrificed by the tsunami of allegation, incrimination, and discipline. The process we observe now is driven by mass media and social media, and can deprive both victims and perpetrators of a due process of law which passes considered judgment.