Should retired judges be beyond the reach of the courts?
Alex Kozinski, Brett Kavanaugh, and Maryanne Trump Barry have all been relieved of the burden of inquiries into their conduct under the Judicial Conduct and Disability Act, 28 U.S.C. §§ 351–364, which empowers the federal judiciary “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 three have in common that their resignations from the bench assertedly deprived the courts of jurisdiction because a judge is no longer a judge when he or she retires (Kozinski and Trump Barry) or steps up to the United States Supreme Court (Kavanaugh). In each circumstance, according to the Second Circuit Judicial Council (in the Kozinski case) the “Act is concerned with individuals who currently exercise the powers of the office of federal judge”. Because he or she “can no longer perform any judicial duties, he does not fall within the scope of persons who can be investigated under the Act” making the proceedings “unnecessary”. Yet the two Circuit Judges collect pensions at full salary for life [28 U.S.C. 371(a)] and, if willing, may be “assigned judicial duties”. [28 U.S.C. 294] The now Associate Justice draws a salary as a member of the highest court and very much “performs judicial duties”.
The Tenth Circuit Judicial Council declared it lacked disciplinary authority over now Justice Kavanaugh, as did the Second Circuit over the retired Kozinski – a precedent on which Trump Barry now relies.
But the Act provides simply that the term “judge” means a circuit judge, district judge, bankruptcy judge, or magistrate judge. It does not state that jurisdiction over misconduct during active service expires upon retirement. That is a gloss that the Second Circuit Judicial Council has placed on the statute in whose steps the Tenth followed. But it is equally plausible that the courts – concerned with the confidence of the public – retain jurisdiction over misconduct alleged to have occurred during active service.
Yet the Second Circuit Council, in its order dismissing the sexual misconduct charges against Judge Kozinski asserted that he is no longer “within the Act’s reach” because its “emphasis” is not on punishment but on “correction of conditions that interfere with the effective and expeditious administration of the business of the courts.” The purpose of lawyer discipline is not simply to protect the public from the offender but to maintain confidence in the bar and legal system. That is no less true of the judiciary.
Each of these jurists was faced with allegations that they violated the rules of conduct of United States Judges – particularly “Canon 2: A Judge Should Avoid Impropriety and the Appearance of Impropriety in all Activities.” It commands “(A) Respect for Law. A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”
The allegations against the three are of a grave nature. Alex Kozinski faced widely publicized reports of sexual misconduct toward his female law clerks – some of it admitted – such as his display of pornography on his office computer. Brett Kavanaugh faced not only the testimony of Professor Christine Blasey Ford alleging misconduct in high school, but eighty-three complaints filed regarding his conduct as a judge. Trump Barry – who served since her appointment in 1983 – was accused in the New York Times of having been an officer of a shell corporation which distributed millions of dollars in fraudulently obtained profits to herself and her siblings. None of these allegations will be investigated, no facts determined, and no judgment rendered.
The asserted lack of jurisdiction cannot be cured by legislation; no one could imagine Donald Trump signing a bill which revived disciplinary proceedings against his sister involving allegations that she, like he, was enriched by a prolonged fraudulent scheme. Nor is it realistic to expect that local or state disciplinary authorities will be in position to carry out the investigations that the federal courts, aided by the FBI, could have carried out. Nor would such state investigations accomplish what is needed: to preserve public confidence in the United States courts. We are left with the likely vain hope that the Chief Justice of the United States will re-examine the Judicial Conduct and Disability Act and declare that retired judges remain subject to its strictures.
- - George W. Conk