The Institutional Politics of Federal Judicial Conduct Regulation

Abstract

Congress and the Federal Judiciary have assumed polarized positions regarding the regulation of judicial conduct. Congressional leaders are advocating an office of inspector general for the Judiciary while judicial leaders are ignoring increasing public, media, and congressional criticism and staunchly defending the status quo. In this Article, I explore the origins and historical contours of the current debate. I argue that for the past fifty years, the Judicial Conference has used control over conduct regulation to centralize judicial authority, to foster a cohesive judicial identity, and to bolster judicial autonomy. Until recently, Congress acquiesced in judicial self-regulation, threatening interference only when necessary to prompt judicial self-action. In the early 2000s, however, Congress took a fundamentally different approach. Responding to judicial reticence to address particular high-profile conduct problems, congressional leaders proposed intrusive legislation that brought institutional politics to the forefront of the debate. Now, with inter-branch tensions rising, the central objective of conduct regulation — balancing judicial autonomy with accountability at the individual and institutional levels — is receding from view. To remedy this situation, I propose a program of voluntary reform by the Judicial Conference. By fostering a more inclusive and transparent system, the Judicial Conference can eliminate its existing vulnerability to criticism and redirect attention towards shaping conduct regulation arrangements that prioritize the public interest over inter-branch politics.