Vasan Kesavan has posted The Limits of Federal Judicial Discipline on SSRN. Here is the abstract:
Federal judges, like other federal officials, sometimes misbehave. Judges may be impeached and removed from office for criminal and noncriminal misbehavior. Judges may be indicted, prosecuted, tried, convicted, and punished for criminal misbehavior in accordance with criminal law. But what about other forms of judicial discipline?
In 1980, Congress enacted the Judicial Councils Reform and Judicial Conduct and Disability Act. This Act authorizes “judicial councils” to discipline federal judges for judicial misconduct by censuring or reprimanding them privately or publicly, requesting voluntary retirement, recommending impeachment, and ordering that “on a temporary basis for a time certain” no new cases be assigned to judges whose conduct is the subject of complaint.
This Article argues that this case suspension provision is unconstitutional. Misbehaving judges will want to agree to case suspensions to lessen the risk of impeachment, but that doesn’t make this provision constitutional for unwilling judges. Congress has no power directly or indirectly via judicial councils to suspend the case-deciding powers of federal judges for judicial misconduct outside impeachment and criminal law. Congress may not authorize case suspensions for judicial misconduct any more than Congress may authorize monetary penalties for judicial misconduct. While in office, the judge has tenure of the full office with all the powers, duties, and emoluments in the judicial commission. If impeachment and criminal law are considered insufficient checks, intrabranch judicial discipline resulting in any involuntary impairment of the judicial office requires constitutional amendment.
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