[This essay is co-authored with Professor Arthur Hellman and Gabe Roth, Executive Director of Fix the Court. Their biographies are below.]
The Constitution provides only one method to punish federal judges who misbehave: impeachment, which can lead to removal from office. But there is broad consensus that judicial impeachment should be reserved for only the most egregious cases. Instead, Congress crafted a middle ground. A judicial council within the regional circuit can review allegations of misconduct, impose reprimands, and where appropriate, make an impeachment referral to the House of Representatives. Of course, the House retains the power to impeach a judge regardless of what the judicial misconduct process determines.
For the most part, this arrangement works well. But a recent case from the Judicial Council of the Eleventh Circuit, based in Atlanta, represents a complete breakdown of the process. A married judge repeatedly had sex in her chambers with a police officer who worked in her district and then lied in an attempt to cover up her compromising acts. Despite this brazen dishonesty, the judicial council slapped her on the wrist and refused to even publicly name her. Since the judiciary failed to live up to its end of the bargain, Congress needs to open an impeachment inquiry.
Judge Eleanor Ross has served on the federal bench in Atlanta since 2014. As early as 2022, she began an affair with an Atlanta police department officer. Over the course of two years, Judge Ross had sex with the officer at least five times in her judicial chambers. In the abstract, no canon of judicial ethics prohibits adultery. Moreover, a judge could have a relationship with a police officer, so long as she recused from any cases that could create a conflict of interest. But life-tenured judges should avoid any compromising actions that could bring disrepute to the court or place them at risk for blackmail. Yet Judge Ross kept her trysts a secret. The district chief judge learned of her sexual activity only after Judge Ross’s law clerk heard “kissing” and “moaning” sounds from chambers and blew the whistle.
The in-chambers sexual conduct, by itself, may perhaps have been enough to warrant impeachment, but what happened next clearly crossed the line. The chief circuit judge, who by law is responsible for investigating allegations of judicial misconduct, asked Judge Ross about the allegations. Judge Ross lied. She insisted that “I have never engaged in sexual intercourse in my office.” She denied knowing which police officer visited her chambers, even though he signed his name to enter. She charged that her law clerk was trying to retaliate against her. The judge may have even tried to clean a couch cushion that appeared to have been stained with bodily fluids. In sum, the judge repeatedly made false statements to her colleagues and attempted to obstruct the investigation.
The judicial council that investigated this matter laid out the sordid details and concluded that Judge Ross lacked candor. But in the end, Judge Ross’s colleagues gave her only the slightest reprimand. Judge Ross agreed to write vaguely-worded letters of apology to her law clerks. And the judge agreed to skip her turn as chief judge and not to serve on any judiciary-wide committee. Worst of all, the judicial council chose to make her reprimand private, finding that she was extremely apologetic and was unlikely to commit similar conduct in the future. The council report did not even name Judge Ross, although it included so many specific facts that it wasn’t hard to figure out who she was.
The council failed in its duty to police judicial misconduct. So did the national appellate committee that reviewed the council’s decision. Both bodies did not even acknowledge precedent from a similar case. In 2007, Judge Samuel Kent of the Southern District of Texas sexually assaulted court employees, and lied to obstruct the investigation. The judicial council and the Judicial Conference of the United States, whose presiding officer is the Chief Justice of the United States, recommended that Kent should be impeached. The House agreed and unanimously impeached Kent. Kent resigned his judgeship to avoid a certain conviction in the Senate.
To be sure, Judge Kent’s sexual assaults were criminal, while Judge Ross’s adultery was lawful. But several members of the House Judiciary Committee stated that lying to the judicial body investigating the misconduct is by itself an impeachable offense. On these grounds, there is strong reason to conclude that Judge Ross has also committed an impeachable offense.
The House of Representatives should pick up the investigation of Judge Ross where the judicial council stopped. And this matter should not be a partisan affair. Much like with the Kent proceedings, members on both sides of the aisle should recognize that a judge who lies about having sex with a police officer within her district, and then attempts to obstruct the investigation, has disqualified herself from judicial service.
This process also should not be rushed. One deliberative approach can be found in the impeachment inquiry of Judge Thomas Porteous in 2008. The House established a twelve-member task force with six Republicans and six Democrats to investigate the matter. This collaboration would allow the process continues regardless of who holds the gavel following the midterm elections.
We continue to believe that judges should be the first line to investigate judicial misconduct. But if judges are unable to fairly sit in judgment of their peers, or worse, are seen as covering up misdeeds, Congress must exercise its constitutional prerogative. Serving as a life-tenured judge is a privilege and not a right. Judges who abuse that privilege must be willing to face public scrutiny, especially where they create conflicts of interest that could require recusals. Judge Ross should resign, but if she fails to, the impeachment process may help her see the light.
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Josh Blackman holds the Centennial Chair of Constitutional Law at the South Texas College of Law Houston and is an adjunct fellow at the Manhattan Institute. Arthur Hellman is an emeritus professor at the University of Pittsburgh School of Law; he helped to draft the current version of the judicial misconduct statute and testified as an expert witness at the impeachment hearing on Judge Kent. Gabe Roth is executive director of Fix the Court, which advocates for greater openness and accountability in the federal judiciary.
