Josh Blackman | 12.15.2024 6:53 PM

It is all too common for critics to demand an "enforceable" ethics code against the Supreme Court justices. These charges, however, fail to recognize how the complaint system could be weaponized. For evidence of this risk, I would point to ongoing proceedings concerning Judge Stephen Vaden of the Court of International Trade.

Judge Vaden was one of thirteen judges who joined the boycott of Columbia Law School. (I interviewed Judge Matt Solomson of the Court of Federal Claims about the boycott.) Shortly after the boycott was announced, a judicial misconduct complaint was filed against Judge Vaden.

Judge Vaden was not alone. Similar complaints were filed against Judges in the Fifth Circuit, the Eleventh Circuit, and in the Court of Federal Claims. As best as I can tell, each of those complaints was dismissed within the circuit. On June 18, 2024, Chief Judge William Pryor of the Eleventh Circuit dismissed the complaint, and the Judicial Council of the Eleventh Judicial Circuit affirmed. On June 24, Chief Judge Priscilla Richman of the Fifth Circuit dismissed the complaint, and the Appellate Review Panel of the Judicial Council for the Fifth Circuit affirmed. And on October 1, 2024, Chief Judge Elaine D. Kaplan of the Court of Federal Claims dismissed the complaint.

Each of these complaints was dismissed, with detailed opinions explaining why. Yet the complaint against Judge Vaden continues. Why?

Let me take a step back and tell you what is public information, and what is not public record. The judicial misconduct process is byzantine. Generally, the proceedings are entirely confidential. Moreover, even if the subject of the complaint waives confidentiality, the proceedings will still remain confidential.

These requirements are spelled out in 28 U.S.C. § 360(a):

(a)Confidentiality of Proceedings.—Except as provided in section 355, all papers, documents, and records of proceedings related to investigations conducted under this chapter shall be confidential and shall not be disclosed by any person in any proceeding except to the extent that—
(1)the judicial council of the circuit in its discretion releases a copy of a report of a special committee under section 353(c) to the complainant whose complaint initiated the investigation by that special committee and to the judge whose conduct is the subject of the complaint;
(2)the judicial council of the circuit, the Judicial Conference of the United States, or the Senate or the House of........

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