A guest contribution by Professor Arthur Hellman
I reached out to Arthur Hellman, an emeritus professor at the University of Pittsburgh, inviting him to contribute a piece about what should follow for Judge Ross. Professor Hellman is widely recognized as a leading scholar in judicial ethics, and he has previously provided testimony to Congress on this important issue.
District Judge Eleanor Ross of the Northern District of Georgia has now been identified as the “Subject Judge” tied to the judicial misconduct order issued by the Committee on Judicial Conduct and Disability of the Judicial Conference of the United States (the JC&D Committee) on May 22. The Committee concurred with the Eleventh Circuit Judicial Council that three actions undertaken by Judge Ross amounted to misconduct under the Judicial Conduct and Disability Act of 1980 (JCDA). The Committee also agreed that the remedial steps prescribed by the Judicial Council—most notably a private reprimand—were appropriate responses.
These remedial measures have, quite understandably, faced sharp criticism for appearing woefully insufficient given the gravity of two of the misconduct findings. It remains possible that the Judicial Council or the JC&D Committee could reverse course, but assuming that they will not, I concur with Josh Blackman that the next move is to consider the constitutional avenue of impeachment.
Curiously, one of Judge Ross’s misconduct findings aligns closely with conduct that served as a basis for impeaching District Judge Samuel B. Kent in 2009. In particular, the JC&D Committee (p. 5) summarized the third misconduct finding by stating that Judge Ross “made numerous, material false statements to the Chief Circuit Judge and the Chief District Judge when initially responding to the allegations.” This echoes the statement on the House floor by Rep. Jim Sensenbrenner, a member of the House Judiciary Task Force on Judicial Impeachment, explaining Article III of the articles of impeachment against Judge Kent (p. H7061): “Clearly, everyone would agree that a judge who lies to a judicial body investigating his conduct … is not fit to remain on the bench.” The House unanimously approved Article III along with three other articles of impeachment. Judge Kent resigned his seat and sidestepped a Senate trial that would likely have led to conviction and removal.
I gave expert testimony at the hearing about the possible impeachment of Judge Kent, and my remarks were cited in the House Report and echoed on the House floor. I write here to explain why the Kent impeachment proceeding establishes a solid foundation for advancing articles of impeachment against Judge Ross.
Like the Ross proceeding, the Kent impeachment involved a judge who lied to conceal improper sexual behavior. But Kent’s misconduct was far more egregious—on multiple occasions, he sexually assaulted court employees and abused his authority as the sole Article III judge in the Galveston courthouse. Those sexual assaults formed the basis for two impeachment articles. Yet the House considered each article separately, and Task Force members who explained the articles to their colleagues paid substantial attention to the false statements.
The remarks opening the proceedings by the Chairman of the House Judiciary Committee, Representative John Conyers, are particularly instructive. He stated (p. H7055):
“The committee is recommending impeachment not merely on the fact that the judge has pleaded guilty and has been sentenced to prison; rather, it is his conduct—making false statements to his fellow judges in an official inquiry and sexually assaulting courthouse personnel—that the committee has independently determined to constitute high crimes and misdemeanors warranting his impeachment and removal from office.”
The Task Force Chairman, Rep. Adam Schiff, summarized my testimony (p. H7056) as “conclud[ing] that making false statements to fellow judges, as well as abusing his power as a Federal judge to sexually assault women, were independent grounds that would justify and warrant Judge Kent’s impeachment and removal from office.”
Rep. Sensenbrenner captured my conclusions in similarly strong terms (p. 7060) before delivering the quotation I have already cited.
Members of the House also had the Judiciary Committee’s report on the impeachment articles. That report (p. 19) quoted my hearing testimony: “False testimony by a federal judge in a judicial misconduct proceeding falls easily within the realm of ‘high crimes and misdemeanors’ that warrant impeachment.”
Note that neither the floor statements nor the House Report hinge on the exact context of Judge Kent’s false statements, nor do they specify that those statements were made under oath (as I would assume).
Thus, this stands as one of those rare occasions in which the Judiciary has found that a current judge engaged in conduct that is nearly identical to what the full House “has independently determined to constitute high crimes and misdemeanors warranting [a judge’s] impeachment and removal from office.” What should come next? At a minimum, I align with the Fix the Court position that the House Judiciary Committee ought to form a bipartisan Task Force akin to the one that probed the Kent allegations. The Task Force would conduct a focused inquiry into whether Judge Ross should be impeached, and would not entertain other issues.
I have not addressed here the specifics of the conduct that gave rise to Judge Ross’s false statements. Although not as egregious an abuse of power as Kent’s actions, the Eleventh Circuit Special Committee report (p. 16) contains characterization that might support a separate impeachment article, but that matter deserves its own discussion in a separate post.
I reiterate my recommendation that the House initiate an impeachment inquiry into Judge Eleanor Ross. I also believe that the House should compel the Eleventh Circuit Judicial Council to produce all records to facilitate those proceedings. There may exist documents that illuminate why the Council chose to render the reprimand private. The core basis of the impeachment process would be Judge Ross’s brazen lies to the Chief Judge of the District and to the Chief Judge of the Circuit. She engaged in sexual relations with her partner (identified by the press) on multiple occasions over a year. This was not a single lapse. She clearly had time to reflect on what she would do if discovered. Yet she demonstrated a persistent lack of candor on several occasions. If any litigant engaged in such deception with federal investigators, they would face charges for making false statements. And if a suspect attempted to destroy evidence (for example, by cleaning a couch cushion), obstruction of justice charges would be likely. Yet Judge Ross received only a nominal sanction. There is more to learn.
