Who Judges Judges When they Act Badly?

Federal judges are people too, albeit with life tenure and substantial governmental power. Because federal judges are people too, they will sometimes make grave mistakes of judgment when performing their official duties. When such lapses occur, however, federal judges cannot be meaningfully punished unless their misconduct rises to the level of an impeachable offense, which includes only “high crimes and misdemeanors.” And to impeach a federal judge requires a majority vote in the House of Representatives and a two-thirds vote in the Senate.

Because of the difficulty of the impeachment process, the question arises who judges the judges when they act badly but the behavior does not rise to the level of an impeachable offense. The answer unfortunately is the judges themselves. Therefore, it is imperative that investigations of misconduct by federal judges be publicly available so at the very least judges can be judged in the court of public opinion. Additionally, how federal judges work, especially when it comes to their law clerks, is or should be a matter of public concern, and yet there is much more mystery than transparency about how federal judges do the work that they do.

These issues were recently implicated when an unnamed federal trial judge who works in the states covered by the Eleventh Circuit Court of Appeals had sexual relations in the judge’s chambers with a law enforcement officer in a manner overheard by the judge’s law clerks. When initially asked about this by the Chief Judge of the Eleventh  Circuit, Bill Pryor, the judge denied all of the allegations only to eventually admit a few weeks later as an official investigation was opened that the allegations were true. Here is the final result of the investigation:

The Subject Judge is a United States District Judge. In September of 2025, the chief judge of the Subject Judge’s court received information indicating that the Subject Judge had engaged in judicial misconduct by, among other things, engaging in an extramarital affair with a law enforcement officer and, in the course of the affair, having sexual intercourse in the Subject Judge’s office during work hours and within hearing distance of the judge’s clerks. The chief judge of the district court relayed the information to Chief Judge Pryor and he asked the Subject Judge to respond to the allegations. The Subject Judge promptly denied them. Thereafter, Chief Judge Pryor identified a complaint of judicial misconduct under the Judicial Conduct and Disability Act and appointed a special committee to investigate the complaint. The special committee retained counsel to assist in the investigation. During its investigation, the special committee corroborated the primary allegation regarding the affair and the sexual activity in chambers. In the midst of the investigation, the Subject Judge recanted the initial denial and admitted to the affair with a law enforcement officer, including sexual intercourse in the judge’s office during working hours. The Subject Judge also eventually admitted another allegation—that the Subject Judge attended a partisan political event. In light of the information gathered during the investigation, including the Subject Judge’s admissions, the special committee finds that the Subject Judge engaged in misconduct by: (1) engaging in the above-described affair and sexual activity in chambers; (2) attending the partisan political event; and (3) making false statements to, among others, Chief Judge Pryor. The special committee recommends that the Judicial Council issue the Subject Judge a private reprimand. The Subject Judge has also agreed to (1) issue letters of apology to certain law clerks affected by the judge’s misconduct; (2) decline to serve as chief judge of the district court when the judge would otherwise be eligible to do so; and (3) indefinitely refrain from serving on any Judicial Conference committee. 

There were other allegations against the judge in question that I discuss below and are important. But let’s pause on one major point first. Why is the judge’s identity being kept from the public? Internet sleuths have likely discovered the judge's identity but there has been no official confirmation. Having sexual relations on a couch in one’s chambers during working hours a few feet from where the law clerks sit is obviously wrong on many levels, without even mentioning the additional detail that the affair was with a law enforcement officer (there’s no evidence that the officer had official business before the judge). Three law clerks were interviewed during the investigation:

Hearing the Subject Judge engaging in intimate contact in the judge’s office had a significant and negative effect on the above-described clerks. Law Clerk A recalled losing focus at work and being unable to sleep. Law Clerk A was concerned about how the Subject Judge’s conduct, if it came to light publicly, might adversely affect the public’s view of the judiciary. Law Clerk C said that the clerk was made “very uncomfortable” by what the clerk heard coming from the judge’s office. Law Clerk B stated that the clerk was so unsettled by the noises the clerk heard that the clerk had to leave the office for the day. Even those who did not have first-hand exposure to the sounds of the Subject Judge and the visitor described being adversely affected by the judge’s conduct. A former career clerk, who functioned as a quasi-supervisor of the term clerks, recalled two different term clerks asking for advice after hearing the judge and the visitor. The former career clerk described feeling powerless to prevent the term clerks from exposure to the relationship. Another term clerk said that the clerk’s colleagues frequently discussed what the judge and the officer were doing behind closed doors, leading to an awkward working environment.

The judge’s in-chambers sexual misconduct likely did not rise to the level of an impeachable offense but was seriously wrong. Moreover, the judge initially lied about all of this when questioned by Judge Pryor. And the judge also attended a partisan event, which violates judicial ethics rules.

The punishment for all this amounted to a required apology to the affected law clerks, disqualification from being Chief Judge in the future (we don’t know how senior this judge is so that penalty may or may not matter), and being ineligible to serve on any Judicial Conference committees (which is probably a reward, not a punishment). In other words, there was no real punishment. At the very least, the court of public opinion should have had the ability to render an official judgment, which is currently impossible as the judge’s identity has not been disclosed.

In addition to those questions, however, another part of the investigation raises even more important issues. The law clerks also reported the following:

Each of the six former law clerks interviewed reported that: (1) when assigning a clerk to work on a substantive civil motion, the Subject Judge did not indicate to the clerk how the judge was inclined to rule on the motion or otherwise provide any direction; (2) it was generally understood that the Subject Judge did not wish to discuss substantive civil-case related issues with clerks; and (3) the Subject Judge rarely, if ever, substantively edited civil orders the clerks drafted. Multiple clerks stated that, given their inexperience, they were uncomfortable with the level of discretion they appeared to exercise in handling civil cases.

In non-legal language, what all of that means is that when there were cases with important legal motions, including dispositive ones, pending, the clerks would pick up the file and write a draft opinion with no guidance from the judge. What that also means is that the judge’s knowledge of the relevant facts, legal issues, and the accompanying law came from the clerk’s draft order, not the parties’ briefs or the judge’s own research.

The judge’s response to those allegations was that he/she/they “reported making edits to between 30 and 40 percent of draft orders. The Subject Judge acknowledged that parties’ submissions are not reviewed before assigning a clerk to draft an order. Accordingly, the Subject Judge does not offer clerks guidance, in advance, as to whether a motion should be granted or denied.”

The final report from the investigation into all this said the following:

Although the committee is troubled by the law clerks’ assertion that the Subject Judge is not engaged in the resolution of civil cases (and, indeed, by the judge’s own admission of such a lack of engagement), the facts established do not support a finding of judicial misconduct. The special committee takes the Subject Judge at the judge’s word that, going forward, the judge will endeavor to be more engaged in civil cases and more open to substantive discussions with law clerks.

Here is a dirty little secret. Most federal judges manage civil motion practice exactly like the judge who was investigated. Clerks see the files initially, draft the opinions or orders resolving them, and then hand them to the judge, who routinely signs them as is or with few edits. This practice was true in 1983, when I clerked, and based on my discussions with dozens of clerks over the years from different parts of the country is still true today.

For about twenty years I helped lead my school’s Inn of Court, which brings together lawyers, judges, and students to discuss ethical, professional, and substantive legal issues. I loved my role and greatly admired the lawyers and judges who made the Inn possible. They let me (actually encouraged me to) discuss a host of controversial issues, from substantive constitutional questions to workplace discrimination to my extreme views on legal realism. But the one and only subject that was off limits was the role of law clerks. No one wanted to discuss that question.

But the legal community needs to discuss that question. Law clerks play a major role at the federal trial level deciding cases, not just doing legal research. On the ground that means that young lawyers right out of law school who have never practiced law are making important decisions that are often either barely reviewed by the judge or not reviewed at all. 

There may be an argument that young, hungry law clerks should play that role, given that many federal trial judges have been on the bench for decades and likely and naturally think they have seen it all before. But if that argument is valid, then the judges should own the process publicly. But they don’t, and getting folks to discuss this question, as I mentioned, is enormously difficult. And life tenure makes all of this lack of transparency even worse.

Federal judges misbehaving is a problem, as misbehavior would be in any work environment. When federal judges misbehave, maybe other federal judges should not be the sole umpires of their misconduct. But in any event, when they misbehave the public should know about it, including in most cases knowing the judges’ identities. And how judges generally utilize their law clerks should also be transparent, but instead is the third rail of discussions about appropriate judicial behavior. Sadly, the investigation that is the subject of this post is not exceptional, which is not surprising given who gets to judge the judges.

-- Eric Segall