[This essay is co-authored by scholars and advocates, with backgrounds noted below.]
The Constitution provides only one method to discipline 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 fashioned a middle ground. A judicial council within the regional circuit can review accusations of misconduct, issue reprimands, and where appropriate, forward an impeachment referral to the House of Representatives. Of course, the House holds the ultimate authority to impeach a judge regardless of what the judicial misconduct process determines.
For the most part, this arrangement works reasonably well. Yet a recent matter before the Judicial Council of the Eleventh Circuit, headquartered in Atlanta, signals a breakdown of the process. A married judge repeatedly engaged in sexual activity within her chambers with a police officer assigned to her district and then lied in an effort to cover up the behavior. Despite this clear dishonesty, the judicial council imposed only a minimal sanction and declined to publicly identify her. When the judiciary fails to keep its commitments, Congress needs to consider opening an impeachment inquiry.
Judge Eleanor Ross has sat on the federal bench in Atlanta since 2014. Beginning as early as 2022, she conducted an extramarital affair with an Atlanta Police Department officer. Over a two-year span, Judge Ross involved herself with the officer at least five times inside her judicial chambers. In theory, no canon of judicial ethics bars adultery. Moreover, a judge could have a relationship with a police officer if she recuses from any cases that could create a conflict. But life-tenured judges should avoid actions that could bring the court into disrepute or expose themselves to coercion. Yet Judge Ross kept the relationship hidden. The district chief judge learned of the activity only after Judge Ross’s law clerk overheard kissing and moaning noises from the chambers and reported it.
The in-chambers sexual conduct, by itself, might have been enough to merit impeachment, but what happened next clearly crossed the line. The chief circuit judge, who by law oversees investigations into judicial misconduct, asked Judge Ross about the allegations. Judge Ross lied. She asserted that “I have never engaged in sexual intercourse in my office.” She denied knowing which officer visited her chambers, even though the officer signed in. She accused her law clerk of retaliation. She may have even attempted to clean a couch cushion that appeared to show bodily-fluid staining. In short, the judge repeatedly lied to her colleagues and tried to obstruct the inquiry.
The judicial council that examined the matter laid out the sordid details and concluded that Judge Ross lacked candor. Yet in the end, her colleagues delivered only the slightest rebuke. Judge Ross agreed to draft vaguely worded apologies to her law clerks. She also agreed to forego her turn as chief judge and not to serve on any judiciary-wide committee. Most troubling, the council decided to keep the reprimand private, finding she was deeply apologetic and unlikely to repeat similar conduct in the future. The council report did not even name Judge Ross, though the facts were so specific that her identity was readily deducible.
The council failed in its duty to police judicial misconduct. So did the national appellate committee that reviewed the council’s decision. Neither body acknowledged 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 be impeached. The House concurred and unanimously impeached Kent. Kent resigned his judgeship to avoid a likely conviction in the Senate.
To be sure, Kent’s sexual assaults were criminal, while Ross’s adultery was lawful. But several members of the House Judiciary Committee stated that lying to the judicial body investigating misconduct is, by itself, an impeachable offense. On these grounds, there is a strong basis to conclude that Judge Ross has also committed an impeachable offense.
The House of Representatives should take up the investigation of Judge Ross where the judicial council left off. And this matter should not be a partisan affair. Just as with the Kent proceedings, members from 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. A deliberative approach can be seen 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 bipartisanship would allow the process to proceed regardless of who holds the gavel after the midterm elections.
We continue to believe that judges should be the first line of investigation into judicial misconduct. But if judges are unable to fairly judge their peers, or worse, are perceived 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 prepared to face public scrutiny, especially when conflicts of interest require recusals. Judge Ross should resign, but if she refuses to, impeachment proceedings may help illuminate the path forward.
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The contributors to this piece include a scholar who holds a Centennial Chair of Constitutional Law at a Texas law school and also serves as an adjunct fellow at a policy institute; a former professor at a Pittsburgh law school who helped draft the current judicial misconduct statute and testified as an expert witness at the Kent impeachment hearing; and the executive director of Fix the Court, an organization advocating for greater openness and accountability in the federal judiciary.
