Judicial Ethics

Yesterday, Third Circuit Court of Appeals Judge Emil Bove attended an event where Donald Trump spoke. That’s an unusual thing for a federal judge to do, even when the president in question is his former client. Federal judges usually avoid political events like the plague.

Doing so would seem especially prudent when the Judge in question is newly appointed to the bench after a confirmation hearing that included testimony about the role he played in the government’s decision to ignore Judge James Boasberg’s order in the El Salvador deportation case. Bove has said that testimony from a whistleblower claiming he said “D.O.J. would need to consider telling the courts ‘fuck you’ and ignore any such order,” isn’t true. He recently submitted a declaration in that case that he provided “privileged legal advice” to others in that matter, without going into the substance of it. Attending a presidential speech in the middle of all of that might have struck other judges as unwise.

The Judicial Conduct and Disability Act of 1980 (“Act”), 28 U.S.C. §§ 351–364, and the Rules for Judicial-Conduct and Judicial-Disability Proceedings (“Rules”) govern the process for making a complaint against a federal judge. You may recall from our past discussions that U.S. Supreme Court justices are not subject to an ethical code. But the rest of the federal judiciary is. And anyone can file a complaint about a federal judge. The Act establishes the process for making them. The Code of Conduct for federal judges says “a judge should refrain from political activity” and shouldn’t attend any events “sponsored by a political organization or candidate.” Judges are also charged with upholding the integrity and independence of the judiciary and avoiding impropriety and the appearance of impropriety in all activities.

There are limits on the type of complaints that can be made. The judicial conduct and disability review process cannot be used to challenge the correctness of a judge’s decision in a case. The process is for complaints about a judge’s conduct. Any person can file one if they believe a federal judge has engaged in “conduct prejudicial to the effective and expeditious administration of the business of the courts” or has become, by reason of a mental or physical disability, “unable to discharge all the duties” of the judicial office.

Complaints go to the Chief Judge of the Circuit where the judge a complaint is filed against sits. It’s up to that Chief Judge to conduct an initial investigation and determine whether the complaint should be dismissed, for instance, because it’s a complaint about how a judge ruled in a case, or whether there is a sufficient reason to appoint a special committee of judges to investigate the alleged misconduct. The Chief Judge must dismiss a complaint where, even if the allegations were true, they would not rise to the level of a situation that is prejudicial to the effective and expeditious administration of the business of the courts. The Chief Judge must also dismiss the complaint if the allegations are frivolous.

Most complaints end with a dismissal, but in some cases, there is an investigation, and it can be significant. When it’s concluded, the special committee submits a report of its findings and recommendations to the judicial council. The council can dismiss a case at this state, or conclude it because corrective action has been taken. But it also has a range of more serious consequences it can impose:

If the order does not dismiss or conclude your complaint, the order may sanction the judge with a range of remedies including:

• “censuring or reprimanding the judge, either by private communication or by public announcement;

• ordering that no new cases be assigned to the judge for a limited, fixed period …

• in the case of a circuit or district judge, requesting the judge to retire voluntarily…

• in the case of a circuit or district judge who is eligible to retire but does not do so, certifying the disability of the judge so that an additional judge may be appointed …

• recommending corrective action”

The speech Bove attended was what he might have expected—highly partisan. Bove is one of Trump’s former lawyers, so he is well acquainted with him. Trump was more political than presidential, railing against “the radical left Democrats in Congress” and calling Joe Biden “the worst president in the history of our country.” He also lambasted his former political opponent, Minnesota Governor Tim Walz, who was the Democrats’ Vice Presidential nominee in 2024, as “one of the dumbest governors ever in our history.”

At least one ethics complaint has already been filed against Bove and there are likely to be more.

Bove told MS NOW reporter Vaughn Hillyard that he was “just here as a citizen coming to watch the president speak.”

The complaints against Bove may get traction or they may go nowhere. But that’s not the point. Federal judges shouldn’t engage in arguably improper behavior and then shrug it off by claiming they did it in their personal capacity. I was taught as a U.S. Attorney that I didn’t even have a personal capacity; that I was on the job, working for the American people, 24-7. The same is true of federal judges. They get life tenure. In exchange, they should refrain from behavior that is arguably permissible if it could damage the integrity of the judiciary or create even an appearance of impropriety. That’s the job. If you don’t want it, then don’t become a federal judge. Otherwise, you might just as well say “F*** the courts.”

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We’re in this together,

Joyce