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Handling Complaints Against Judges: Good, But Can Be Improved
The federal Judiciary does well overall in handling complaints against judges
but improvement is needed in high-visibility cases, a committee led by Supreme
Court Justice Stephen Breyer has concluded.
After two years of research, the committee reported to Chief Justice John G.
Roberts, Jr. that it found “no serious problem with the Judiciary’s handling of
the vast bulk of complaints” filed under the Judicial Conduct and Disability
“The committee found that the relevant error rate, i.e. that of failing
properly to process such complaints, is about 2 to 3 percent. While a perfectly
operating system remains the goal, the committee recognizes that no human system
operates perfectly; some error is inevitable,” the report said.
“And the committee is unanimous in its view that a processing error rate of 2
to 3 percent does not demonstrate a serious flaw in the operation of the
system,” the report added.
The 1980 Act authorizes any person to file a complaint alleging that a
federal judge has engaged in conduct “prejudicial to the effective and
expeditious administration of the business of the courts.”
The late Chief Justice William H. Rehnquist, in 2004, responded to criticism
from Congress and others about the way in which the Act had been implemented by
appointing this committee. In addition to Justice Breyer, the committee members
included Judges Sarah Evans Barker (S.D. Ind.), Pasco M. Bowman (8th Cir.), D.
Brock Hornby (D. Me.) and J. Harvie Wilkinson III (4th Cir.), along with Sally
M. Rider, then administrative assistant to the Chief Justice.
Roberts made the report public on September 19, the same day the Judicial
Conference held its semi-annual meeting in Washington.
The Act requires the chief judge of the relevant judicial circuit to consider
each complaint against a judge and, where appropriate, to appoint a special
committee of judges to investigate further and to make recommendations to the
circuit’s judicial council on how to resolve the complaint. The council may
resolve the complaint or refer judicial misconduct to the Judicial Conference
for its action, including advising the House of Representatives that impeachment
may be warranted.
An average of more than 700 complaints against judges are filed each year,
and the committee examined more than 2,000 complaints. Separately, the committee
assessed high-visibility cases—those that received national or regional news
media coverage, including matters that had come to the attention of (or had been
filed by) members of Congress. The committee found 17 of those cases within a
The committee concluded that the handling of five of those 17 cases was
problematic. “The proper handling of high-visibility complaints has particular
importance. Because the matters at issue have received publicity, the public is
particularly likely to form a view of the Judiciary’s handling of all cases upon
the basis of these few,” the committee’s report said. “And the mishandling of
these cases may discourage those with legitimate complaints from using the Act.
We consequently consider the mishandling of five such cases out of 17—an error
rate close to 30 percent—far too high.”
Available online at www.supremecourtus.gov/publicinfo/breyercommitteereport.pdf,
the report made 12 specific recommendations. The report recommends that two
groups help chief circuit judges, judicial council members and circuit staff to
understand and administer the Judicial Conduct and Disability Act. The two
groups are the Judicial Conference Committee to Review Circuit Council Conduct
and Disability Orders and the Federal Judicial Center. Also recommended is that
circuit councils require all courts covered by the Act to provide information
about filing a complaint on the homepage of the court website, as well as to
take other steps to publicize the Act’s availability.
In a September 19 news briefing, Chief Justice Roberts thanked the committee
for its work, saying, “I was impressed with the thoroughness and
comprehensiveness of their work.” He referred the report to the Judicial
Conference for consideration by its appropriate committees “and prompt
Comment on the report also came from the Hill. House Judiciary Committee
Chairman F. James Sensenbrenner (R-WI) commended the Breyer committee. “I am
encouraged the committee acknowledges there have been problems with the
enforcement of the judicial discipline construct in recent years, particularly
in high-profile cases,” he said. “I look forward to working with the judicial
branch to curtail mishandling of complaints about judicial misconduct to ensure
judges exhibit the highest standards of integrity and conduct.”