It is all to common for critics to demand an “enforceable” ethics code against the Supreme Court justices. These charges, however, fail to recognize how the complaint system could be weaponized. For evidence of this risk, I would point to ongoing proceedings concerning Judge Stephen Vaden of the Court of International Trade.
Judge Vaden was one of thirteen judges who joined the boycott of Columbia Law School. (I interviewed Judge Matt Solomson of the Court of Federal Claims about the boycott.) Shortly after the boycott was announced, a judicial misconduct complaint was filed against Judge Vaden.
Judge Vaden was not alone. Similar complaints were filed against Judges in the Fifth Circuit, the Eleventh Circuit, and in the Court of Federal Claims. As best as I can tell, each of those complaints was dismissed within the circuit. On June 18, 2024, Chief Judge William Pryor of the Eleventh Circuit dismissed the complaint, and the Judicial Council of the Eleventh Judicial Circuit affirmed. On June 24, Chief Judge Priscilla Richman of the Fifth Circuit dismissed the complaint, and the Appellate Review Panel of the Judicial Council for the Fifth Circuit affirmed. And on October 1, 2024, Chief Judge Elaine D. Kaplan of the Court of Federal Claims dismissed the complaint.
Each of these complaints was dismissed, with detailed opinions explaining why. Yet the complaint against Judge Vaden continues. Why?
Let me take a step back and tell you what is public information, and what is not public record. The judicial misconduct process is byzantine. Generally, the proceedings are entirely confidential. Moreover, even if the subject of the complaint waives confidentiality, the proceedings will still remain confidential.
These requirements are spelled out in 28 U.S.C. § 360(a):
(a)Confidentiality of Proceedings.—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 except to the extent that—
(1)the judicial council of the circuit in its discretion releases a copy of a report of a special committee under section 353(c) to the complainant whose complaint initiated the investigation by that special committee and to the judge whose conduct is the subject of the complaint;
(2)the judicial council of the circuit, the Judicial Conference of the United States, or the Senate or the House of Representatives by resolution, releases any such material which is believed necessary to an impeachment investigation or trial of a judge under article I of the Constitution; or
(3)such disclosure is authorized in writing by the judge who is the subject of the complaint and by the chief judge of the circuit, the Chief Justice, or the chairman of the standing committee established under section 331.
This rule is spelled out with more specificity in Rule 23(b)(7) of the Rules for Judicial Conduct and Judicial Disability Proceedings:
Subject Judge’s Consent. If both the subject judge and the chief judge consent in writing, any materials from the files may be disclosed to any person. In any such disclosure, the chief judge may require that the identity of the complainant, or of witnesses in an investigation conducted under these Rules, not be revealed.
In short, information about the complaint can only be made public if both the subject of the complaint, and the reviewing court approves it. How many people clamoring for an “enforceable” ethics code against the Supreme Court were even aware of these statutes?
With that background, I can point you to a statement posted on the First Liberty web site (for purposes of full disclosure, I’ve worked with First Liberty on many cases and projects over the years):
Judge Stephen Vaden is a judge on the US Court of International Trade. He was appointed to the bench in 2020 by President Donald Trump.
On May 6, 2024, thirteen federal judges, including Judge Vaden, sent a letter to Columbia University condemning the repeated instances of antisemitism on the campus after Hamas’ October 7 attack on Israel.
An inmate convicted of terrorism and vandalism offenses filed a judicial misconduct complaint against Judge Vaden for signing the letter. The misconduct complaint is currently pending before the Seventh Circuit’s Judicial Council.
The Chief Judges of the Court of Federal Claims, and United States Courts of Appeals for the Fifth and Eleventh Circuits, dismissed similar complaints about the letter. Those dismissals have all been affirmed by the relevant Judicial Councils.
The inmate has no connection to Columbia University, any law school, Judge Vaden, or any case that could come before Judge Vaden.
First Liberty, along with Lisa Blatt from Williams & Connolly LLP, represent Judge Vaden.
Again, rules of confidentiality constrain what I can write here. So let’s play connect the dots. How can a complaint get from the Court of International Trade to the Seventh Circuit Judicial Council? Rule 26 lays out the process:
In exceptional circumstances, a chief judge or a judicial council may ask the Chief Justice to transfer a proceeding based on a complaint identified under Rule 5 or filed under Rule 6 to the judicial council of another circuit. The request for a transfer may be made at any stage of the proceeding before a reference to the Judicial Conference under Rule 20(b)(1)(C) or 20(b)(2) or a petition for review is filed under Rule 22. Upon receiving such a request, the Chief Justice may refuse the request or select the transferee judicial council, which may then exercise the powers of a judicial council under these Rules.
So two things had to happen here. First, the Chief Judge of the Court of International Trade, Mark Barnett, determined there were “exceptional circumstances” to ask Chief Justice John Roberts to transfer the complaint to another circuit. And second, Chief Justice Roberts had to agree that such a transfer was warranted.
Now remember, similar complaints were already dismissed by three other chief judges, who saw no need to refer the case to other circuits. Why did Judge Barnett decide to transfer the case? I can’t tell you. That information is confidential. And I think it is safe to say that Judge Vaden has not withheld confidentiality. The fact that he authorized his counsel to make the case public should support that conclusion. So it is the Chief Judge of the Seventh Circuit and/or Chief Justice Roberts, who is keeping this case on the down-low.
Some more information may be helpful. The Court of International Trade is an Article III court. Judges are nominated by the President, are confirmed by the Senate, and serve during “good behavior.” But 28 U.S.C. § 251 mandates the political affiliation of federal judges:
The President shall appoint, by and with the advice and consent of the Senate, nine judges who shall constitute a court of record to be known as the United States Court of International Trade. Not more than five of such judges shall be from the same political party. The court is a court established under article III of the Constitution of the United States.
In general, there may not be Obama or Trump judges. But Judge Mark Barnett, by statute, was an Obama judge. And Judge Stephen Vaden, by statute, was a Trump judge. (I tend to think this statute is an unconstitutional constraint on the President’s appointing power–the Senate can just withhold consent for a judge of the wrong party–but that is a matter for another day.) Chief Justice Roberts was certainly aware of this fact. And he was aware of prior dismissal orders by the Fifth and Eleventh Circuits. And, Chief Justice Roberts was under no obligation to transfer the complaint. You may recall that Roberts’s rejected the transfer request from Chief Judge Srinivasan regarding Judge Griffith. Yet, Roberts let this case go forward here. Roberts could have transferred the case to the Fifth or Eleventh Circuits, which already resolved these issues. But he picked the Seventh Circuit.
What exactly are the proceedings before the Seventh Circuit? Confidential. I hope Judge Vaden is relieved of this complaint as soon as practicable. And Chief Judge Barnett of the Court of International Trade, and Chief Justice Roberts, should think very carefully of why this case is any different than the prior cases from Texas and Georgia.
You may not care very much about this dispute, or the Court of International Trade. But this Court will have jurisdiction over Trump trade-related cases, including tariffs and customs. (See 28 U.S.C. § 1581). No other court in the country can hear challenges to virtually any tariff decision that Trump will make. This court will be very significant.
Plus, the Court of International Trade does not use random assignments. Instead the Chief Judge assigns specific judges to specific panels. 28 U.S.C. § 253 provides:
The chief judge, under rules of the court, may designate any judge or judges of the court to try any case and, when the circumstances so warrant, reassign the case to another judge or judges.
And Rule 77(e) of the Court’s rules provide, in part:
(e) Assignment and Reassignment of Cases.
(1) Assignment to Single Judge. All cases will be assigned by the chief judge to a single judge, except as prescribed in paragraph (2) of this subdivision (e).
(2) Assignment to Three-Judge Panel. A case may be assigned by the chief judge to a three-judge panel either on motion, or on the chief judge’s own initiative, when the chief judge finds that the case raises an issue of the constitutionality of a federal statute, a proclamation of the President, or an Executive order; or has broad or significant implications in the administration or interpretation of the law.
(3) Time of Assignment. Cases are assigned by the chief judge at any time on the chief judge’s own initiative or on motion for good cause shown.
This assignment makes Amarillo and Fort Worth seem like no problem at all.
It would be worth studying how members on the evenly-divided court are assigned to high-profile cases. We will be hearing a lot more about Judge Barnett over the next four years. For all the complaint about single judge divisions, more attention should be focused on the Court of International Trade.
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