Self-Regulation of Judicial Misconduct Could Be Mis-Regulation

Judge Harry T. Edwards has written a lucid and seemingly logical plea for the judiciary to be granted exclusive self-regulation over all matters of judicial misconduct that fall short of crimes or impeachable offenses. His essay demonstrates the seriousness with which he regards misconduct that would bring shame to the federal judiciary. He believes that the judiciary as a whole is the best institution to ascertain and take measures against individual aberrant judges who are guilty of various forms of misconduct, and I have no doubt of the sincerity of his belief. Yet when we look at claims for self-regulation in other professions – in medicine and in the police force, for example – we find historically that progress only takes place when outside lay persons are included on or even dominate ethics and misconduct boards. Otherwise the general operating rule is “cover it up.” No matter what the profession, any charge that a fellow professional is guilty of malpractice is a prima facie invitation to other professionals to retreat to a guild mentality, denying that the infraction took place. The impetus to cover up is not primarily due to friendship toward the accused but rather to a general perception that disclosure would lead to public disrespect of the profession as a whole. The guild mentality is self-protective at the group level, and results in trumping honest disclosure in all but the most egregious cases that would leak to the public anyway. With respect to guild mentality, I know of no compelling distinction for judges from doctors or police officers. Given the low salaries society gives to judges, public esteem is correspondingly an extremely important job benefit. We perhaps demand too much of human nature if we expect judges to be unconcerned with the loss of public prestige that results from admitting that cases of serious judicial misconduct are not extraordinarily rare.

But placing these general misgivings to one side, my particular quarrel with Judge Edwards’ essay has three aspects: first, that his perception of the problem may be distorted due to the legal culture in which he is perhaps unselfconsciously immersed; second, that he places an untenably narrow positivistic interpretation on the “good behavior” language of the Constitution; and third, that his failure even to mention what may be one of the most significant areas of judicial misconduct, namely, lack of candor in judicial opinions, proves a certain institutional blindness to misconduct that undercuts his entire plea. I conclude this essay by suggesting that lack of candor is just an example, although perhaps the most important one, of the danger of entrusting solely to the judiciary the policing of its own members.