Recent public instances of bad behavior by judges are raising questions about their conduct off the bench, and whether the current system for policing misconduct can properly address those issues.
US District Judge Eleanor Ross brought her extramarital affair to the Atlanta courthouse when she had sex with a police commander in her chambers, in earshot of her clerks. Judge Ryan Nelson is facing misdemeanor charges over a parking lot altercation in Idaho Falls. And US District Judge Thomas Ludington in Bay City, Michigan, has pleaded not guilty to violating the terms of his probation, after he earlier pleaded no contest to a misdemeanor drunken-driving charge.
While the recent conduct is unrelated, the incidents draw negative attention toward the courts at a time when judges are already under duress from attacks on their rulings and a rise in threats.
The recent conduct also raises broader questions on whether the existing systems set up to hold federal judges accountable are effective, as judges face heightened scrutiny in an increasingly politicized environment, said Renee Knake Jefferson, a University of Houston judicial ethics expert.
“The danger is not merely reputational harm to those individual judges but an erosion of public confidence in the judiciary as an institution,” Jefferson added.
A federal judiciary spokesperson declined to comment.
Reflects on Courts
Former judges said their behavior on and off the bench reflects on the courts as a whole and can indirectly cause harm.
“It affects the judiciary as a whole at a time when I see the judiciary is particularly under scrutiny and particularly vulnerable,” said Allyson Duncan, a former Fourth Circuit judge who left the court in 2019. “It’s very sad.”
Chief judges of federal appeals courts are tasked with initiating and overseeing misconduct inquiries for jurists within their circuits, or can ask for judges in another circuit to handle an investigation.
Deanell Reece Tacha, a former chief judge for the Denver-based US Court of Appeals for the Tenth Circuit, said she views the judiciary’s current internal systems for policing judges to be effective. She said in Ross’ case, the chief judge—William Pryor of the Eleventh Circuit—did exactly what he was supposed to do, by quickly initiating an investigation that led to the facts coming out.
The court order didn’t name Ross, though Bloomberg Law reported that she is the subject judge. Others said that the private reprimand for Ross is insufficient and is a sign that handling misconduct issues shouldn’t be left up to the courts.
“We continue to see a variety of misconduct by federal judges for which they are disciplined far less harshly than a litigant who would appear before them,” said Aliza Shatzman, president and founder of the Legal Accountability Project, a group that advocates for better protections for law clerks.
Off-Bench Behavior
The code of conduct for federal judges does address some off-the-bench behavior, said Arthur Hellman, an emeritus law professor at the University of Pittsburgh who studies federal courts.
Sitting judges can’t join organizations that discriminate on the basis of ethnicity or gender, and can’t be publicly aligned with partisan political causes.
In some instances, a judge’s non-court behavior could raise questions about their conduct on the bench, Hellman said. If a judge repeatedly cheats in card games, it could cause people to wonder if that judge is dishonest in other contexts, he added.
“If he’s willing to cheat at cards, is he going to be willing to distort the law or ignore relevant facts to reach the result he or she wants?” Hellman said. “Some might say the answer to that question is yes, and others would say that people can compartmentalize their lives.”
Jefferson said serious personal misconduct doesn’t always implicate a judge’s behavior on the bench, but that the judiciary has recognized that those unrelated misdeeds can impact the courts. “The question is often not whether the conduct affected a particular case, but whether it undermines confidence in the judge’s ability to uphold the standards of the office,” she said.
Ludington is the subject of at least one misconduct complaint over his drunken-driving arrest, but there’s been no public announcement by the Sixth Circuit about any inquiry opened into the judge’s conduct.
He went on paid leave in February and said after his April plea to the misdemeanor charge that he would remain on the bench. Ludington has been ordered to return to a local court later this month after a probation officer said he “failed to drug screen” as required during the first week of his probation.
Chief Judge Mary Murguia of the Ninth Circuit said in a June 8 order that she’s identified a complaint against Nelson over his conduct, citing media reports about the charges against him.
The Idaho State Journal published video of the incident underlying the charges, which shows Nelson acting aggressively toward another person over a comment about the judge’s parking skills. Nelson has pleaded not guilty to misdemeanor battery and malicious injury to property and a pretrial conference is scheduled for June 18. His attorney hasn’t returned multiple requests for comment.
Ross was the subject of an internal court investigation and misconduct proceeding that resulted in the private reprimand against her. As part of that penalty, she agreed to write letters of apology to her former law clerks over her behavior.
Bloomberg Law reported that Ross sent a second apology letter to those clerks after Pryor said the first brief letters may not have been sufficient to meet the conditions of the discipline imposed against her.
The Atlanta-based judge is also the subject of two sets of articles of impeachment filed by House Republicans from Georgia. While congressional Democrats have largely stayed quiet, Republicans have shown more of an appetite toward impeachment and Ross’ potential removal.
Gabe Roth, executive director of the group Fix the Court — which advocates for the courts to be more transparent — said he hoped any impeachment effort would be bipartisan, particularly as House Republicans have targeted judges who have ruled against the Trump administration for impeachment.
“I’m hoping that this underscores a larger conversation about what is impeachable conduct, and it’s the off-the-bench stuff that, to me, is impeachable,” Roth said of Ross’ case.
Internal System
Under federal law, misconduct by federal judges is handled within the courts and sometimes within the circuit where that judge sits. A chief judge of a circuit can ask the chief justice to transfer a misconduct proceeding to another court, to avoid potential conflicts.
Tacha, the former Tenth Circuit chief judge, said the courts have spent years considering and adjusting its systems for handling judicial and workplace misconduct complaints.
And she noted that Pryor asked Ross to respond after her law clerks raised concerns about whether the judge’s first apology letter was sufficient.
“This ongoing watchfulness is a good sign that the system continues to work and that it’s been fine tuned and that the people who are involved are very careful about their responsibilities,” Tacha said.
Roth said it’s too early to say how the systems have fared in Nelson and Ludington’s cases. But he is among advocates and experts who said that the penalty for Ross, including a private reprimand, didn’t go far enough and raised serious questions about the current system’s effectiveness.
“That the sanction imposed was meant to remain private is problematic and contributes to both the perception and the reality that the federal judiciary protects its own,” Jefferson said.
Hellman said he wouldn’t want to see the federal judicial misconduct system be handled by outside bodies, like the disciplinary boards that exist for some state courts. “But it’s going to be very tempting for some members of Congress if the outcomes in even a handful of high-profile cases” are questionable, he said.