Autopsy of a Judicial Misconduct Decision
Working Draft by Kenneth L. Smith¤

The principle of the Rule of Law requires not only that the law should apply to everyone -- citizen and state, rich and poor, powerful and weak -- but that there should be effective legal remedies for use where there is a breach of the law. The Rule of Law does not cease to operate merely because the law is broken -- crime exists in all societies -- but it is violated if someone is able to break the law with impunity because legal remedies do not exist or because he is too powerful for them to be applied to him.1

    The primary cause of the malaise in our judicial system is the one Thomas Jefferson warned us of  two centuries ago: Judges who cannot be held to account for their actions will inevitably become tyrants.2  While an American judge " can be lazy, lack judicial temperament, mistreat his staff, berate without reason the lawyers and litigants who appear before him, be reprimanded for ethical lapses, verge on or even slide into senility [and] be continually reversed for elementary legal mistakes"3 with complete impunity, other nations are less tolerant of judicial sloth and indolence.  For instance, the Associated Press reports that in Spain, a judge was fined last month for extreme incompetence:

A Spanish judge has been fined 103,000 euros ($162,000) and suspended for a year for allowing a man to spend 455 days in prison for a crime of which he was acquitted.

The Superior Court of Justice of Andalusia said in Wednesday's ruling that Judge Adelina Entrena was guilty of grave negligence.

Her case comes amid an uproar in Spain over a judicial system seen as overworked, underfunded and increasingly sloppy.4

     By stark contrast, as has been documented (e.g., here, here and here) over the past few months, judicial discipline in America has become a transparent farce.  The failure of our judiciary to police itself has become so acute that even the American Bar Association Journal -- which normally tends toward being obsequious in its coverage of the judiciary -- offers unusually frank criticism of the supposedly "new-and-improved" process of federal judicial discipline, citing an array of experts:

[T]he standards for judicial misconduct continue to be vague, and that the conduct code is not directly enforceable through the new procedural rules... [Charles Geyh, Indiana-Bloomington]

[T]he new uniform rules give chief judges of the circuits too much discretion to decide not to initiate inquiries into possible misconduct or disability involving judges. “I don’t think the chief judge should need a smoking gun or blood on the floor to initiate an investigation into possible wrongdoing,” [Arthur D. Hellman, U. of Pittsburgh]

[The problem with the] new federal rules is that they don’t bring enough transparency to the process ... “I think the public has a right to know how their judges are behaving.” ... “How would anybody ever know whether the system is working if all we ever hear about are the cases that result in disciplinary action?”   [Steven Lubet, Northwestern]5

     The fundamental problem with the federal system of judicial discipline is that it can't be effectively audited.  Due to strict and strictly-enforced confidentiality rules, the only people who have unfettered access to the work product of federal judicial councils are fellow judges, who have a powerful incentive to cover up evidence of malfeasance.  As Senior Judge John L. Kane of the District of Colorado confessed to the Washington Post, judges of the Tenth Circuit6 have been egregiously remiss in their duty to discipline their fellow judges:

“[T]he current system is a 'kiss your sister' operation that hasn't worked and won't as long as judges are covering one another's butts. The present system is ineffectual and I think that could be demonstrated by the very sorry record."7

     The record speaks for itself.  Dr. Richard Cordero points out that, over a ten-year period beginning in 1997, out of nearly 7,500 misconduct complaints filed against federal judges -- of which 93 were filed by chief judges -- only five federal judges have been publicly censured, and only two have received more serious discipline.8  This astonishing record can only be indicative of two possibilities: Either our federal judiciary is on the verge of attaining collective sainthood, or the judges administering the system of federal discipline are, as Judge Kane asserts, "covering one another's butts."

     Now that the Seventh, Ninth, and Tenth Circuits have begun to publish their rulings in judicial misconduct cases, an embryonic form of judicial misconduct jurisprudence is emerging from behind the green door of opacity.  And by marvelous happenstance, the Chief Judge of the Ninth Circuit is the flamboyant and controversial Alex Kozinski -- the only circuit judge with his own "fan club."9  Judge Kozinski applies a hard and principled line in his approach to the duty to discipline wayward judges, beseeching his colleagues to do likewise:

Disciplining our colleagues is a delicate and uncomfortable task, not merely because those accused of misconduct are often men and women we know and admire. It is also uncomfortable because we tend to empathize with the accused, whose conduct might not be all that different from what we have done-or been tempted to do-in a moment of weakness or thoughtlessness. And, of course, there is the nettlesome prospect of having to confront judges we've condemned when we see them at a judicial conference, committee meeting, judicial education program or some such event.

Pleasant or not, it's a responsibility we accept when we become members of the Judicial Council, and we must discharge it fully and fairly, without favor or rancor. If we don't live up to this responsibility, we may find that Congress-which does keep an eye on these matters-will have given the job to somebody else, materially weakening the independence of the federal judiciary.10   

    In his annual State of the Judiciary report, Chief Justice John Roberts echoed this theme, observing that when "entertaining a complaint about a judge, the Judiciary must apply the same qualities of reason, impartiality, and wisdom that epitomize the judicial process. The Judiciary cannot tolerate misconduct. The public rightly expects the Judiciary to be fair but firm in policing its own."11  But how closely do they actually meet this expectation?

     A survey of these decisions reveals that they tend to be unduly economical with the facts, rendering them virtually useless as a source of precedent.  While judges are known to take indecent liberties with the facts of cases before them, the facts of these cases are described in such perfunctory fashion that it is often difficult to ascertain from the text what the complainant is actually complaining about.  Accordingly, all we can do in most instances is accept the facts as given at face value, using them to derive rules of decision.  To cite a simple example, it is stated repeatedly that conclusory charges "wholly unsupported by evidence will be dismissed."12

     Second, in most cases, the chief judge of the Circuit is the actual lawmaker.  Appellate review is strictly 'battlefield justice', if it is even in fact performed at all.  Most reports are variants of a boiler-plate declaration: "We have carefully reviewed the record and the authorities cited by the Chief Judge in his order of dismissal. We conclude there is no basis for overturning the order of dismissal."13  As a general rule, when a judge can't explain or even defend his decision, he simply doesn't: a common practice caustically referred to as the "because-I-said-so" doctrine.14  Although it is a common practice among judicial councils to do so, the five-member Judicial Conference Committee on Judicial Conduct and Disability, charged with overseeing the federal courts' disciplinary review process, criticized Judge Manuel Real's practice of doing  -- albeit in the most delicate manner possible:

We agree that a judge’s pattern and practice of arbitrarily and deliberately disregarding prevailing legal standards and thereby causing expense and delay to litigants may be misconduct.  However, the characterization of such behavior as misconduct is fraught with dangers to judicial independence. Therefore, a  cognizable misconduct complaint based on allegations of a judge not following prevailing law or the directions of a court of appeals in particular cases must identify clear and convincing evidence of willfulness, that is, clear and convincing evidence of a judge's arbitrary and intentional departure from prevailing law based on his or her disagreement with, or willful indifference to, that law.15

     By creating a standard of willfulness, the Conference Committee purported to guard against what it perceives as a threat to judicial independence attendant to having judicial decisions result in professional discipline: "[E]very experienced judge knows of cases where the circumstances justifiably called for a decision that was superficially at odds with precedent."16  Of course, every law student knows that in those cases, it becomes incumbent upon a judge who departs from established precedent to explain why he or she did so.  Thus it would logically follow that, in those cases where the judge did not offer a rationale for departing from seemingly-controlling precedent, that act alone could constitute evidence of misconduct.  Furthermore, as real people are often irreparably injured by this species of misconduct, the Committee found such conduct, if deemed to be willful, "is very serious indeed,"17 and deserving of sanctions more meaningful than a private reprimand.  And in a delicious irony, uber-blogger Howard Bashman observes:

Because many have criticized the 9th Circuit itself for disregarding applicable U.S. Supreme Court precedent, some may find it appropriate that it was the 9th Circuit that generated a nationally applicable decision that habitual or willful failure to follow governing legal principles may constitute judicial misconduct.18     

Examining the Corpse

"There Must Be Blood On the Floor"
     With this foundation laid, attention can be turned to a complaint where all salient facts have been publicly disclosed.  It is, as Circuit Judge Paul J. Kelly has correctly noted, a sort of meta-complaint, objecting to the improper refusal of chief judges of the Circuit to discipline their colleagues for cause:

The complaint takes issue with various rulings made by the subject judges in both prior misconduct matters and underlying district court cases and appeals. Complainant’s theory is that a pattern of dismissals of prior misconduct complaints and a pattern of adverse rulings in underlying cases (brought by complainant and others) demonstrates that the subject judges and the circuit’s Judicial Council systematically discriminate against pro se litigants. Complainant references the opinions of those who criticize the current judicial misconduct procedures and standards, but provides no supporting factual allegations which would distinguish these allegations from a category of claims that are not cognizable in judicial misconduct proceedings: claims that are “directly related to the merits of a decision or procedural ruling.”19

      In his summary dismissal, Judge Kelly parrots the stock language of every order of dismissal issued by the Tenth Circuit: "To the extent that any relevant prior decisions of the Judicial Conference Committee on Judicial Conduct and the Tenth Circuit Judicial Council consistent with those authorities exist, they may also govern my consideration of this complaint.”20  But if precedent serves as a guide, any "legal ruling done with improper motive can constitute misconduct."21  Moreover, as Chief Kozinski observes, even a single indefensible judicial decision can constitute evidence of sanctionable misconduct:

Judicial action taken without any arguable legal basis … is far worse than simple error or abuse of discretion; it's an abuse of judicial power that is "prejudicial to the effective and expeditious administration of the business of the courts." See 28 U.S.C. § 351 (a); Shaman, Lubet & Alfini, supra. § 2.02, at 37 ("Serious legal error is more likely to amount to misconduct than a minor mistake. The sort of evaluation that measures the seriousness of legal error is admittedly somewhat subjective, but the courts seem to agree that legal error is egregious when judges deny individuals their basic or fundamental procedural rights."); In re Quirk, 705 So. 2d 172, 178 (La. 1997) ("A single instance of serious, egregious legal error, particularly one involving the denial to individuals of their basic or fundamental rights, may amount to judicial misconduct." (citing Jeffrey M. Shaman, Judicial Ethics. 2 Geo. J. Legal Ethics 1, 9 (1988))).22

     Several observations are appropriate at this point.  First and foremost, while an erroneous judicial decision cannot form the basis for a valid complaint under the federal judicial misconduct statute, an allegation of an erroneous judicial decision coupled with an identifiable motive can.  Second, as no litigant can expect to have access to a judge's private papers or conversations with his colleagues and law clerks, under the standard espoused by Judge Kelly, it is impossible for the average litigant to gain the access needed to make out a complaint comporting to their standards.  Third, Congress is laboring under the mistaken impression that one of the few reasons for which a chief judge may properly dismiss an ethics complaint is if it "contains allegations that are incapable of being established through investigation."23  As Judge Kelly admits, the actual rule is a lot closer to Professor Hellman's "there must be blood on the floor" standard.

Get a Clue: It Was the Judge, In the Dark, with the Poison Pen
     Though not speaking ex cathedra, Justice Louis Brandeis famously observed: "Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.”24  Ever since enactment of the present-day federal scheme of judicial self-discipline,25 the disciplinary process has taken place behind closed doors, under a shroud of strict secrecy.26 Accordingly, judges work under the assumption that the unwashed layman can never audit the process, which enables them to make bold statements like this with confidence:    

Such claims do not constitute misconduct because adjudication procedures contain numerous statutorily-granted opportunities to challenge a court’s rulings and directly appeal its decisions. Therefore “the complaint procedure cannot be a means for collateral attack on the substance of a judge’s rulings.” Breyer Report, App. E. ¶ 2. As explained in the  commentary to Misconduct Rule 3, “[t]his exclusion preserves the independence of judges in the exercise of judicial power.” Further, and without determining whether such a theory advanced could properly support a claim of misconduct, complainant’s factual allegations come nowhere near the requisite “clear and convincing evidence of a judge’s arbitrary and intentional departure from prevailing law based on his or her disagreement with, or willful indifference to, that law.”27     

      Judicial misconduct is like a bear in the woods: while you may not always see him, when you find his paw-print in the mud, you know he’s out there.  While few litigants can ever expect to see a wad of bills being slipped under a robe, or the kind of judicial "favor-trading" alleged by Alan Dershowitz,28 the paw-prints -- irrational decisions, in irreconcilable conflict with precedent and/or at odds with undeniable facts -- are unmistakable.  Professor Karl Llewellyn observes that judges often

manhandl[e] ... the facts of the pending case, or of the precedent, so as to make it falsely appear that the case in hand falls under a rule which in fact it does not fit, or especially that it falls outside of a rule which would lead in the instant case to a conclusion the court cannot stomach.29

     When our judges cook the books, the stench is unmistakable.  As Llewellyn remarked, “[s]uch action leaves the particular point moderately clear: the court has wanted [the result] badly enough to lie to get it.”30  And without any way to check a judge's work, and no practical way to hold him accountable when he does, the temptation to place one's finger on the scales of justice is virtually irresistable.  However, in this case, every single document is in the public domain; accordingly, every decision Judge Kelly reaches can be audited.  By way of example, here was part of the evidence as presented:

     While no judge should ever be subjected to professional discipline for an honest mistake, the actions of Judges Anderson, Barrett, and Briscoe in Smith v. Mullarkey, 67 Fed.Appx. 535 (10th Cir. Jun. 11, 2003) cannot possibly be so characterized.  In that opinion, Judge Anderson made the following admission:

[Smith] filed a complaint in federal district court setting forth twenty claims for relief for alleged violations of federal law and of plaintiff’s constitutional rights.  Plaintiff sought declarations that the Colorado bar admission process and certain admissions rules were unconstitutional…  
  
Smith v. Mullarkey, slip op.  at 4 (emphasis added).

     From there, proper judicial analysis is reduced to a simple syllogism: If condition X (a state bar applicant challenges the facial constitutionality of a state bar admission rule) is true, then Y (a federal district court must hear his claim, District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482-83 (1983); Roe v. Ogden, 253 F.3d 1225 (10th Cir. 2001)).  Condition X is true (a fact the Tenth Circuit panel admitted in the highlighted text).  Therefore, Y (a federal district court must hear that claim).   In defiance of this simple and irrefutable logic, the Tenth Circuit panel wrote “designer law,” applicable to one litigant and one litigant only, summarily denying Smith his constitutional right to challenge the constitutionality of a statute directly and uniquely affecting him as a bar applicant.31

      This is what might be referred to as an "Occam's Razor" case.  The Supreme Court's position is crystal-clear, and the legally operative fact (that a facial challenge was being raised to a bar admission statute by a person with standing to bring it) was so clear that the Tenth Circuit openly acknowledged it.  The Rooker-Feldman doctrine was well-known and widely applied, with almost a hundred reported cases at the appellate level in the two years prior to Judge Nottingham's decision citing to it.32  As both the law and facts are clear, the judge is expected to be little more than an administrator, playing what Professor Llewellyn called "the game of matching cases."33  Accordingly, there are two and only two explanations for this state of affairs: That not one but four highly- qualified, experienced federal judges (and their law clerks) truly and honestly did not know the law and inadvertently misapplied it, or that four federal judges conspired among themselves to willfully defy the Supreme Court.

     When viewed in that light, Judge Kelly's claim in his Order of Dismissal that "complainant’s factual allegations come nowhere near the requisite 'clear and convincing evidence of a judge’s arbitrary and intentional departure from prevailing law based on his or her disagreement with, or willful indifference to, that law'" is profoundly disturbing.  For not one but four judges to miss this simple application of the law reveals a quality of work product so abysmal that it would shock the conscience of Communist Party bosses in the old Soviet Union.  Anyone else in the real world (i.o.w., outside the cocoon of the government) would be fired instantly for such gross incompetence. But as Judge Kelly implicitly asserts, in the unreal world of the federal judiciary, sloth and indolence really are the order of the day.  Unfortunately, he has company in that stark assessment, in the person of colleague Richard Posner of the Seventh Circuit:

A federal judge can be lazy, lack judicial temperament, mistreat his staff, berate without reason the lawyers and litigants who appear before him, be reprimanded for ethical lapses, verge on or even slide into senility, be continually reversed for elementary legal mistakes, hold under advisement for years cases that could be decided perfectly well in days or weeks, leak confidential information to the press, pursue a nakedly political agenda, and misbehave in other ways that might get even a tenured civil servant or university professor fired; he will retain his office."34

     The most troubling implication of Judge Kelly's assertion is the inescapable implication that our federal judiciary is so relentlessly incompetent as a group that merely stating the facts on the public record relating to this case is not merely insufficient to constitute clear and convincing evidence of willful indifference to the law, but doesn't come anywhere near it.

 The Juris Doctor Is NOT In: The Curious Case Of Mike McConnell


    By all accounts, Judge Michael McConnell is one of our nation's foremost constitutional scholars -- a man who teaches at Harvard and Stanford,35 and can't often claim ignorance of the law.  But as this part of the misconduct complaint reveals, he is not a particularly conscientious judge:

A Tale of Two Litigants

     It was the best of courts.  It was the worst of courts.  It held the spring of hope for some, and the winter of despair for others…. 

     Sean Harrington’s complaint is a simple one.  He filed suit, in propria persona, in the District of Colorado.  It was assigned to Judge Edward Nottingham, who promptly handed it off to Magistrate Judge Watanabe with apparent instructions to make it disappear.  (Of course, as we can’t know that without access to internal procedures, res ipsa loquitur applies.)  Magistrate Watanabe issued his recommendation that his complaint be dismissed, and Harrington was given notice of his right to object pursuant to Fed. R. Civ. P. 72(b).  But four days before his objections were due, Judge Nottingham dismissed his complaint sua sponte.

     Harrington filed objections in a timely manner, in conjunction with his motion for reconsideration.  But Judge Nottingham struck his fully-hyperlinked digital brief in its entirety, and refused to even accept a more conventional version of the brief.  Despite the fact that that he had a right to be heard under Rule 72, Harrington’s claims were never decided on the merits, either at the trial or appellate level.  But more importantly, he was never heard.

     He appealed Judge Nottingham’s decision to the Tenth Circuit, the sole raison d’être of which is to ensure the consistency of law throughout the Circuit by correcting flagrant errors committed by district courts.  But in a four-and-one-half-page opinion that, in all likelihood, Judge Michael McConnell never read, Judge Nottingham’s reversible error, see, e.g., Hosna v. Groose, 80 F.3d 298, 306 (8th Cir. 1996); Northington v. Marin, 102 F.3d 1564, 1570 (10th Cir. 1996), was never corrected; Harrington requested but was denied oral argument.
 
    Joe “Macho” Nacchio was a captain of industry, routinely appearing on the covers of Fortune, Forbes, and USA Today.  And, if you can believe our Department of Justice, he was also trading shares of his Qwest stock with the benefit of inside information.

     Once again, or so we are told by the Tenth Circuit, Judge Nottingham made a technical error, in excluding the testimony of an expert witness.  In a manner befitting his station in life in Tenth Circuit courts, Nacchio received “limousine treatment”: He was granted oral argument that was conducted less than one month after the close of briefing, and his appeal was decided in a sixty-page opinion less than four months after oral argument.  Contrast that to the kind of service Ken Smith received, Smith v. United States Ct. of Appeals, for the Tenth Circuit, 484 F.3d 1281 (10th Cir. 2007) (incompetently-crafted decision eliding dispositive issues rendered twenty-six months from the close of briefing; delay occurred despite denial of oral argument), and you see the problem: The average Joe cannot even expect to have clear error corrected by the Circuit in a timely manner, whereas the Joe Nacchios of the world are treated like kings.

     How did this happen?  While we will never know absent cross-examination, the spectacle of Judge Nottingham’s arrogance in the Walgreens’ parking lot offers us a plausible theory: Michael McConnell is a federal judge -- far too important to be sullied by the task of doing the job that he is paid so obscenely well to do.  Judge McConnell is a prolific writer of law review articles, and teaches law at not one but three universities, and to be perfectly blunt, in his case, the federal bench scarcely qualifies as a part-time job.36
 
     When they ascend to the bench, federal judges take a solemn oath to "administer justice withour respect to persons, and do equal right to the poor and to the rich."37  But while the average Joe is shunted to the back of the Tenth Circuit bus, captains of industry like Joe Nacchio command the rapt attention of judges like McConnell, who are apparently more interested in polishing their resumes than doing their jobs.  In his Order of Dismissal, Judge Kelly defends his colleague thusly:

In addition to the numerous complaints about the judges’ rulings, complainant speculates that one of the subject circuit judges must be working only part time, in light of the judge’s other academic pursuits of writing and teaching. A judge may engage in such extra-judicial activities consistent with proper performance of judicial duties and no factual basis supports any impropriety, let alone any judicial misconduct.  Complainant asserts that certain judges hand their cases over to law clerks or magistrate judges with instructions to deny relief and pay no further attention to them. These claims also lack merit, because they lack evidentiary and factual support.38


     Obviously, no one would object to judicial moonlighting, which appears to be ubiquitous.  However, if the cop is so tired from his job as a night watchman at the local Wal-Mart that he routinely sleeps in his police cruiser, we would expect him to be fired.  The complaint against Judge McConnell is not directed at the fact that he moonlights but rather, as is demonstrated clearly in the Harrington appeal, that the quality of the work to which he signs his name is so abysmal that he is 'sleeping' in his proverbial police cruiser.  Once again, the proof is in the pudding; every document in question is an indelible part of the public record, and given Judge McConnell's reputation as one of America's foremost constitutional scholars,39 the only conceivable explanations for it are indolence or sloth.  And once again, Judge Kelly is warranting that our federal judiciary is so profoundly incompetent that it is manifestly unreasonable to attribute the poor quality of their work output to willful misconduct.


See No Evil, Hear No Evil, Speak No Evil: The Case of the Missing Complaint

    As a general rule, the only time a federal judge follows the law is when it takes him exactly where he wanted to go in the first place.40  When a judge knows that he can't address an issue, he simply ignores it.  If he even acknowledges the issue at all, he is either unduly parsimonious with his analysis, or papers it over with the all-purpose bromide, "plaintiff's arguments are unavailing."  Again, judges depend on their readers' ignorance, recognizing that no one is going to spend the $5.00 to learn what the plaintiff actually argued.  And true to form, Judge Kelly elides the one complaint where he could not possibly quibble with the facts:

Against Bobby R. Baldock, William J. Holloway, and Stephanie K. Seymour for willful refusal to do their office in connection with an unreasonable delay in issuing a decision with the improper motive of effecting discrimination against pro se litigants.41

     The threshold question here is whether it is unreasonable for a poor man to have to wait twenty-six months from the close of briefing for a panel of judges to write a legally-sparse fourteen-page decision in a case where no oral argument was taken, in a circuit where a rich man like Joe Nacchio receives his sixty-page decision seven months from the close of briefing in a case with a dissenting opinion after receiving oral argument.  Judge Kozinski delivered an opinion just two weeks before speaking directly to this issue:

Complainant also complains about delay in the handling of his habeas petition. His petition was filed in May 2004 and has been reassigned to several judges without a final determination. According to court staff, petitioner’s case became ready for decision in November 2005, when the traverse was filed.

Delay is not misconduct unless the circumstances are extraordinary, as “where the delay is habitual, is improperly motivated or is the product of improper animus or prejudice toward a particular litigant, or, possibly, where the delay is of such an extraordinary or egregious character as to constitute a clear dereliction of judicial responsibilities.”

Complainant has presented no evidence that the delay in his case is “improperly motivated or . . . the product of improper animus or prejudice” against him. However, under the applicable standard, we must also consider whether the delay is “of such an extraordinary or egregious character as to constitute a clear dereliction of judicial responsibilities.”

A limited inquiry into the allegations of the complaint discloses that the district where complainant’s case is filed has had an extremely high caseload and a severe shortage of judicial officers. As a consequence, many litigants must wait months or even years before their cases are addressed. While there is no evidence that the judges of that district have committed any sort of misconduct or dereliction of duty, it nevertheless remains true that many litigants are not being adequately served. This situation calls for corrective action, under the authority of the Circuit Judicial Council, which is responsible for ensuring that justice in the courts of our circuit is dispensed fairly, efficiently and reasonably promptly. Insofar as the litigants in even one of our districts are not being adequately served, all judges of our circuit bear the responsibility to rectify the situation. The backlog problem in the subject district is currently under serious review and steps are being taken to bring additional resources to bear, with an eye towards dramatically reducing or eliminating the backlog.42

    Under the rule of law announced by Judge Kozinski, a delay of two-plus years in the disposition of such matters, while not in any way acceptable, cannot be a valid grounds for a judicial misconduct complaint in a jurisdiction with a severe shortage of judicial officers available to consider the matter, and everyone is sharing the pain equally.  Conversely, in a jurisdiction like the Tenth Circuit -- where judges like Mike McConnell have plenty of free time to moonlight as law review authors and law professors, and well-heeled patrons with well-connected attorneys can expect to receive decisions in even complex cases in well under a year -- the only conclusion one can reach is that the delay was of such an extraordinary or egregious character as to constitute a clear dereliction of judicial responsibilities.”

How a Homicide Becomes an Accident: Re-Writing the Report
      As Judge Posner observes, judges seek appointments on the bench for the power and prestige, rather than the money,43 a view shared by former Colorado Supreme Court Justice Gregory Scott.44 Given that even one Father Geoghan was able to bring the entire Catholic priesthood into disrepute, judges have an obvious motive to hide the sins of their colleagues. Legal ethicist Anthony D'Amato explains:

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. ... 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.45

     Judge Kane confirms this supposition with an anecdote from his own experience.  After a meeting where the Tenth Circuit Judicial Council voted to dismiss a complaint about a judge who asked an attorney who was appearing before him to have his firm create a law library in his honor, he relates: "As we were leaving the meeting, one of the judges who had voted to dismiss collared me and said, 'John, think about it. The next time it could be you or me. We've got to stick together.' "46  Consequently, judges have a tendency to (conveniently) misinterpret judicial misconduct allegations.  At least in connection with this controversy, this is the most egregious illustration of this tendency:  
 
Additional information has come to my attention indicating that Judge Nottingham’s abusive (and in some cases, patently illegal) conduct on the bench has been common knowledge within the walls of the District for quite some time.  By way of example, Magistrate Judge Kristen Mix reportedly advised a plaintiff as follows:

The biggest problem with your case is that Judge Nottingham hates employment cases and there's nothing you can do about it. It's random.  Now don't get me wrong, he's a fine judge, but he just hates employment cases. That's why he will try to find any way in the summary judgment briefs to say there's no material issues and grant summary judgment, and if he doesn't, he will make it tough at trial, and you won't win . . . I'm going to look you right in the eye and tell you that you're gonna lose.

 Judge Nottingham’s comments in dismissing that motion shock the conscience:

Even accepting Plaintiff’s affidavit as true and further assuming the magistrate’s statements to be accurate, my “judicial leaning” is an improper basis upon which to premise a recusal motion.

Additionally, the sufficiency of Plaintiff’s section 144 affidavit is undermined by the fact that it is based entirely on hearsay and conclusory opinion. Where, as here, the hearsay statements fail to demonstrate personal bias and, moreover, are tenuously corroborated only by Plaintiff’s own conclusory assertion that I “had [sic] personal bias or prejudice” against him, an affidavit is patently insufficient.  Moreover, the context in which the magistrate’s comments were made further impugns their reliability: they were made in an attempt to persuade Plaintiff to accept a settlement offer.47
 
    When they ascend to the bench, judges take an oath "to faithfully and impartially discharge all the duties"48 incumbent upon them.  Judges are not at liberty to only enforce those sections of the United States Code they personally agree with.  The obvious concern is that Judge Nottingham "is improperly motivated or is the product of improper animus or prejudice toward" a particular class of cases -- employment law cases -- and that he has used his position to deprive those with meritorious claims of the relief they are entitled to.  A pattern of conduct stretching back seventeen years was employed to demonstrate this, but rather than deal with the evidence as a whole and its obvious implications, Judge Kelly isolates each individual incident, refusing to "connect the dots":

Complainant next contends that a magistrate judge, who is not the subject of this complaint, made certain comments to a litigant in a settlement conference about a district judge’s disdain for a certain type of case. Based on those comments, the litigant filed a motion to recuse the district judge. Complainant takes issue with the judge’s ruling on this motion, contending that the judge has conceded the existence of the remarks and condoned settlement pressure by considering the context of the remarks. First, this claim is not cognizable to the extent that it is related to the merits of the judge’s ruling. Second, the judge’s conduct in responding to a recusal motion and discussing the context of the remarks simply does not constitute misconduct; to the contrary, it represents no more than the judge’s reasoning in performing his judicial function.49

      While Judge Nottingham's reasoning does not rise to the level of opprobrious conduct worthy of discipline, the presumptions he makes are astonishing.  In effect, he not only asserts that Magistrate Kristen Mix is an inveterate liar who routinely defrauds litigants in settlement conferences, but that she did so in a specific case is not only unworthy of denunciation but entirely unremarkable.  Contrast this attitude to the high-minded commentary offered in the Code of Conduct for United States Judges:

Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly. The prohibition against behaving with impropriety or the appearance of impropriety applies to both the professional and personal conduct of a judge. ... The test for appearance of impropriety is whether the conduct would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired.50  

     The obvious question that Judge Kelly so assiduously avoided is whether a magistrate's established practice of lying to litigants in order to pressure and even defraud them into accepting an unjust settlement -- a practice which is not only condoned but actually expected by superiors like Judge Nottingham -- would create a legitimate perception that that magistrate's ability to carry our judicial responsibilities with integrity, impartiality, and competence has been impaired.  Frankly, to even pose the question is to arrive at an answer.

Like Putting Lipstick On a Pig: Enter the Drive-By Media
     With all the grave issues regarding the state of our judiciary raised in this complaint, you had to bet that our drive-by media would be hungry for a cheap laugh.  And, as might be expected given the provocation, Judge Kelly served up a little room service:

After the complaint was filed and assigned in accord with Misconduct Rule 25(f), complainant filed a supplemental letter which sets out additional claims against one of the named district court judges. Complainant takes issue with the judge’s use of an image of a pig included in an opinion criticizing citation of authority that did not support a proposition advanced. Albeit in poor taste, the image apparently was a comment on the authority submitted. To the extent relevant to the case under consideration, such a comment is presumptively meritsrelated. Regardless, it does not rise to the level of “treating litigants or attorneys in a demonstrably egregious or hostile manner.”51

     As judges are expected to "be patient, dignified, respectful, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity,52 one should not expect to suffer open ridicule.  To be certain, embedding a photograph of a pig with lipstick on in an order of a court is manifestly in poor taste, but does it really rise to the level of a lead story on a local news broadcast in a major metropolitan area like Denver?  Astonishingly, Denver's CBS affiliate thought so.53  One can only imagine the pride Edward R. Murrow must be feeling....

Bayoneting the Dead

     In dressing down a fellow judge convicted of corruption, United States District Judge Helen "Ginger" Berryman observed: "Corruption in the judiciary is worse than corruption in any other branch of government ... What you have done is simply appalling."54  Judges occupy a position of trust and confidence, one carrying with it the highest of fiduciary obligations imaginable under the law. They must faithfully follow the law, or there is no law. Justice Brandeis minced no words:

Decency, security and liberty alike demand that government officials be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself.55

     As the former Judge Bodenheimer said to the press prior to sentencing, "Ninety-nine percent of what I did as a judge was the right thing. One percent was wrong, and for that I pleaded guilty and I have been punished."55  And that is the tale of the tape.  Ninety-nine brilliant decisions cannot make up for one instance of willful misconduct; while every breach of public trust is a matter for concern, few can be more serious than those committed by the men and women of our judiciary. As famed orator Daniel Webster, referred to as the "Defender of our Constitution," once remarked:
   
There can be no office in which the sense of … responsibility is more necessary than in that of a judge; especially of those judges who pass, in the last resort, on the lives, liberty, and property of every man. … The judiciary power, on the other hand, acts directly on individuals. The injured may suffer without sympathy or the hope of redress. The last hope of the innocent, under accusation and in distress, is in the integrity of his judges. If this fail, all fails; and there is no remedy on this side the bar of Heaven.56

    Ninety-nine brilliant decisions are not enough.  Incidents like those involving Judge Nottingham, and the appalling solicitousness with which their colleagues regard them, have impaled the integrity of the judiciary as a class. Our judges are held in low esteem because, quite frankly, they have earned it.  And this, in itself, is a cautionary tale.  "To distrust the judiciary," said Honoré de Balzac, "marks the beginning of the end of society."  

Endnotes:
¤ Copyright 2008 Kenneth L. Smith, J.D., M.S., C.P.A.  Where there are differences between this version and the PDF version, the latter is authoritative.

1. R.C. Simpson, Gouriet: The Constitutional Issue, 41 Mod. L. Rev. 58, 58 (Jan. 1978).
2. "The original error [was in] establishing a judiciary independent of the nation, and which, from the citadel of the law, can turn its guns on those they were meant to defend, and control and fashion their proceedings to its own will."  Thomas Jefferson, Letter (to John Wayles Eppes), 1807, available at http://etext.virginia.edu/jefferson/quotations/jeff1270.htm.  A more extensive exposition is offered in an 1823 letter to Admantios Coray, id.., emphasis added):

At the establishment of our constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions, nevertheless, become law by precedent, sapping, by little and little, the foundations of the constitution, and working its change by construction, before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance. In truth, man is not made to be trusted for life if secured against all liability to account.

3.  Richard A. Posner, Overcoming Law (Cambridge, MA: Harvard U. Press, 1995) at 111.
4.  Daniel Woolls, Spanish Judge Fined Heavily for Letting Innocent Man Spend 15 Months in Jail, Law.com (Associated Press), Apr. 10, 2008.
5.  Mark Hansen, Judging the Judges, ABA Journal, May 2008 (emphasis added).
6.  The Tenth Circuit's jurisdiction covers the states of Colorado, Kansas, Oklahoma, New Mexico, Utah, and Wyoming.
7.  Ronald D. Rotunda, The Courts Need This Watchdog, Washington Post, Dec. 21, 2006 at A-29.
8. Richard Cordero,  Judicial-Discipline-Reform.org (website), visited Jun. 2, 2008 (pdf copy on file).
9.   Alex Kozinski, Judge Kozinski's 'Nomination Letter', New York Times, Nov. 15, 2005 (web access by permission only; pdf on file).
10.  In re Complaint of Judicial Misconduct, 425 F.3d 1179, 1183 (9th Cir. 2005) (Kozinski, J., dissenting).
11.  John G. Roberts, Jr., 2007 Year-End Report on the Federal Judiciary, Jan. 1, 2008, available at http://www.supremecourtus.gov/publicinfo/year-end/2007year-endreport.pdf.
12. Order, In re Complaint of Judicial Misconduct, No. 07-89062 (9th Cir. 2008) at 2.
13. nbsp;nbsp;nbsp;nbsp;nbsp;nbsp;Order, In re Complaint of Judicial Misconduct, No. 07-89116 (9th Cir. 2008) at 1.
14.  Another Pro Se Lawsuit Affirmed as Dismissed By the Tenth Circuit Under the Because-I-Said-So Legal Doctrine, KnowYourCOurts.com, Jun. 7, 2007.
15.  Memorandum of Decision, Judicial Conference Committee on Judicial Conduct and Disability, Jan. 14, 2008, at 8, available at http://www.uscourts.gov/library/judicialmisconduct/jcdopinions108.pdf.
16.  Id.
17.  Id. at 10.
18. Howard Bashman, A Look at Federal Judicial Disciplinary Developments, Law.com, Mar. 12, 2008.
19. Order of Dismissal, In re Charge of Judicial Misconduct No. 2008-10-372-13 (10th Cir. Judicial Council May 8, 2008) at 2 (citations omitted).
20. Id. at 1.
21. Order of Dismissal, In re Charge of Judicial Misconduct No. 2006-10-372-40 (10th Cir. Judicial Council 2007) at 2.
22.  In re Complaint of Judicial Misconduct, 425 F.3d 1179, 1185 (9th Cir. 2005) (Kozinski, J., dissenting; emphasis added).
23.  Elizabeth Bazan, Judicial Discipline Process: An Overview, Congressional Research Service Report for Congress No. RS22084 (March, 2005).
24.  Louis G. Brandeis, Other People’s Money, and How the Bankers Use It, 1933, as reprinted at The Schuster Institute for Investigative Journalism (Brandeis University) website (http://www.brandeis.edu/investigate/sunlight/).
25.  28 U.S.C. §§ 351-364.  The Judicial Improvements Act of 2002 replaced 28 U.S.C. § 372(c), which formerly governed complaints of judicial misconduct or disability, with 28 U.S.C. § 351, et seq., effective November 2, 2002. Although certain additions were made in regard to the complaint procedures, the substance of the former 28 U.S.C. § 372(c) remains intact.
26.  28 U.S.C. § 360(a) provides, in pertinent part: "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 (with narrow exceptions)."
27. nbsp;nbsp;nbsp;nbsp;nbsp;nbsp;Order of Dismissal, In re Charge of Judicial Misconduct No. 2008-10-372-13 (10th Cir. Judicial Council May 8, 2008) at 2-3.
28. Alan M. Dershowitz, Supreme Injustice: How the High Court Hijacked Election 2000 (New York: Oxford U. Press, 2001), p. 116:

It is widely known that many state court judges and some lower court judges play favorites among litigants and lawyers. Roy Cohn once famously quipped, “I don’t care if my opponent knows the law, as long as I know the judge.” In the old days, it was financial corruption -- cash changed hands. Then it became the “favor bank,” in which personal favors are quietly stored and exchanged. I have seen it with my own eyes in the courts of Boston, New York, and elsewhere.

29. Karl Llewellyn, The Common Law Tradition: Deciding Appeals (1960) at 133.
30.   Llewellyn, Common Law Tradition at 135 (emphasis added).
31.  Complaint, In re Charge of Judicial Misconduct No. 2008-10-372-13 (10th Cir. Judicial Council May 8, 2008) at 6-7.
32.  A Versuslaw search with the parameters "Search Text: (xfilter( word dates::20000101~~20011231)) AND Rooker-Feldman" resulted in 88 documents returned.
33.  Karl N. Llewellyn, The Bramble Bush 49 (1960).
34.  Richard A. Posner, Overcoming Law Cambridge, MA: Harvard U. Press, 1995) at 111.
35.  Stanford Law School Directory, Michael W. McConnell, at http://www.law.stanford.edu/directory/profile/91/Michael%20W.%20McConnell/ (McConnel has taught at Harvard, Stanford, and the University of Utah).  
36.  Complaint, In re Charge of Judicial Misconduct No. 2008-10-372-13 (10th Cir. Judicial Council May 8, 2008) at 4-5.
37.  28 U.S.C. § 453.
38.  nbsp;nbsp;Order of Dismissal, In re Charge of Judicial Misconduct No. 2008-10-372-13 (10th Cir. Judicial Council May 8, 2008) at 2.
39.  See, Rita v. United States, 551 U.S. ___ (2007) (Stevens, J., concurring), slip op. at 7, for praise of Judge McConnell's abilities at the highest level.
40.  While there are exceptions, see e.g.,  Jason Hoppin, 9th Circuit Judge Bucks Three Strikes Rules, The Recorder, May 30, 2003, (Judge Stephen Reinhardt voices disapproval of Supreme Court decision, whereas Judge Harry Pregerson voiced open rebellion), a creative judge can manipulate the law and facts to the point where open rebellion is rare and, in most cases, entirely unnecessary.
41.  Complaint, In re Charge of Judicial Misconduct No. 2008-10-372-13 (10th Cir. Judicial Council May 8, 2008) at 9-10.
42.  Order, In re Complaint of Judicial Misconduct, No. 07-89124 (9th Cir. 2008) at 2-3.
43.  Richard Posner, What Judges Want,
44.  Karen Abbott, “State’s First Black Justice To Leave Supreme Court,” Rocky Mountain News, Mar. 7, 2000 at 7A (it’s hard to find qualified Supreme Court justices “because of the low pay”).
45.  Anthony D’Amato, Self-Regulation of Judicial Misconduct Could be Mis-Regulation, 89 Mich. L.R. 609, 609-10 (1990).
46.  Rotunda, supra. n. 7.
47.  Supplement to Complaint, In re Charge of Judicial Misconduct No. 2008-10-372-13 (10th Cir. Judicial Council May 8, 2008) at 1-2 (emphasis in original; citations omitted).
48.  28 U.S.C. § 453 (emphasis added).
49.   nbsp; Complaint, In re Charge of Judicial Misconduct No. 2008-10-372-13 (10th Cir. Judicial Council May 8, 2008) at 4-5.
50.  Code of Conduct for United States Judges, Canon 2.A. cmt.
51.  Complaint, In re Charge of Judicial Misconduct No. 2008-10-372-13 (10th Cir. Judicial Council May 8, 2008) at 4.
52.  Code of Conduct for United States Judges, Canon 3.A(3).
53. Judge Nottingham Cited For Pig Picture, KCNC-TV, Jun. 4, 2008.
54.  Manuel Torres, Bodenheimer Gets 46 Months in Prison; Sentence Exceeds What Prosecutors Had Requested, New Orleans Times-Picayune, April 29, 2004, at A-1.
55.  Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting).
56.  Daniel Webster, The Writings and Speeches of Daniel Webster (Boston: Little, Brown, & Co., 1851), Vol. III, at 6-7.
57.  As quoted in, Judges Behaving Badly, The Economist, Jun. 28, 2007.