When the chief judge of U.S. Court of Appeals for the Ninth Circuit initiated a judicial review of the sexual harassment allegations against Judge Alex Kozinski, it presented a rare opportunity for the public to witness how the federal judiciary handles allegations of sexual misconduct against its members. That opportunity was seemingly lost when Kozinski resigned shortly after review began. Following Kozinksi’s resignation, almost 700 former federal judicial clerks and employees penned a letter to Supreme Court Chief Justice John Roberts charging that the federal judiciary is not equipped to handle allegations of sexual assault. In response, Chief Justice Roberts announced that the judiciary would begin 2018 by evaluating “whether its standards of conduct and its procedures for investigating and correcting inappropriate behavior are adequate.” The Kozinski controversy raises important questions regarding judicial standards of conduct and how judges should be disciplined when those standards are not met.

Federal judges must follow the laws of the United States as well as the Code of Conduct for United States Judges. The Code broadly sets standards for judicial conduct inside and outside the courthouse. For example, the Code states, “[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.” Many of the standards do not have clearly drawn boundaries; instead, violations are determined through a “reasonable application of the text.” Violations of the Code may be grounds for disciplinary action under the Judicial Conduct and Disability Act of 1980.

The Act provides the judiciary with the authority to discipline its own members. To initiate a proceeding, any person can file a complaint alleging judicial misconduct with the clerk of the court of appeals for the appropriate circuit. Non-frivolous complaints are delegated by the chief judge of the circuit to a special committee of judges for fact-finding. Based on the committee’s findings, a judicial council for the circuit determines an appropriate action for the judge in question. The Act describes possible actions by the judicial council, which include: ordering that no further cases be assigned to the judge temporarily, censuring/reprimanding the judge by public or private communication, requesting the judge voluntarily retire, or referring the judge for impeachment by the House of Representatives.

The Act expressly prohibits judicial councils from removing a judge from office. Under Article III of the U.S. Constitution, federal judges serve for life “during good behavior.” As a “civil Officer of the United States,” a federal judge may be removed from office through Article II impeachment proceedings. While there is some question whether this is the only procedure for removing a judge from office, it is generally accepted that a judge may only be removed after being impeached by the House and tried in the Senate. Since impeachment proceedings are confined to the legislature, the judiciary lacks authority to remove judges from office.

In the history of the United States, federal judges have been impeached just fifteen times. In each of the most recent instances, the impeached judge faced felony charges or convictions. With the House only impeaching judges on felony charges, the judiciary retains wide authority in deciding when to initiate disciplinary hearings and issue corrective actions against its members. The integrity of the judiciary is not maintained merely through its independence; to keep the public’s trust, the judiciary must ensure that judicial conduct complies with the laws and standards judges apply in their courtrooms. It remains to be seen whether Chief Justice Roberts’ evaluation of the federal judiciary will help to achieve that goal.