An Overview of Judicial Conduct Supervision Mechanisms in the United States

Introduction

The governmental system of the United States is unique because it is a federal system. The concept of a unitary "central government" does not exist; instead, power is distributed relatively evenly between the federal government and state governments. The federal government holds certain important powers concerning the national economy and people's livelihood, while the vast majority of governmental powers affecting the daily lives of ordinary citizens are retained entirely by the respective states, with the federal government prohibited from overstepping its bounds. This differs from centralized systems characterized by absolute hierarchical relationships, such as a president commanding a provincial governor, a provincial governor commanding a mayor, and a mayor commanding a village head. This spirit of federalism is likewise reflected in the U.S. judicial system.

The United States has two parallel judicial systems: one federal and one state. Under the principle of stare decisis, both sets of courts must adhere to the jurisprudential spirit of the decisions of the Supreme Court of the United States. Federal courts other than the Supreme Court handle only cases of a federal nature, while the vast majority of remaining judicial jurisdiction continues to reside in state courts. Consequently, the mechanism for supervising judicial conduct in the United States is similarly divided into two sets: one targeting state judges and the other targeting federal judges.

Looking at the entry points of these supervisory approaches, judicial conduct oversight in the U.S. generally takes two forms. One is a long-term, fundamental, proactive, and ex-ante promotional oversight mechanism achieved through the design of judicial selection systems. The other is a reactive, ex-post supervision or even removal procedure based on individual cases or groups of cases, similar to the level of regulation under Taiwan's Judges Act.

The table below summarizes the types of judicial supervision mechanisms in the United States:

This report will introduce the operational principles of both supervisory systems and their typical case patterns.

Supervision Mechanisms at the Federal Level

I. Selection of Federal Judges

The U.S. Constitution provides that federal judges are selected through a process where the President first submits a list of nominees to the U.S. Senate for confirmation, following which the President makes direct appointments. In practice, however, the President engages in extensive deliberation and consultation prior to making a nomination. As a result, senators almost always approve the President's list, making it appear on the surface simply as a presidential appointment. Therefore, in the text below, references to presidential appointment or presidential nomination carry the same meaning. Currently, the U.S. federal judicial system comprises approximately 600 judges in federal district courts, about 200 judges in federal courts of appeals, and 9 Justices on the Supreme Court. Because all federal judges hold lifetime appointments, no single president can appoint all judges, which also serves to a certain extent as a healthy check on presidential power.

Nevertheless, a president will generally encounter several judicial vacancies during their term, and presidents employ a variety of methods to select judges. For instance, a president may accept recommendations from the U.S. Department of Justice, the Federal Bureau of Investigation, members of Congress, sitting judges and Justices, and the American Bar Association. More boldly, individuals have even recommended themselves directly to the president. In addition, there is a special tradition known as "senatorial courtesy." For example, if a federal vacancy arises in a particular state, the President will typically respect the recommendation of the senators from that state and directly nominate the person put forward by those senators. Ignoring a senator's opinion can carry severe consequences: on one hand, it is viewed as an insult to the senator; on the other, it may spark conflict between the White House and the senator.

A president's criteria for choosing nominees also vary, but generally revolve around three core considerations: judicial experience and competence, political ideology, and diversity.

Judicial competence is easily understood. Presidents typically nominate individuals with extensive legal practice experience or career public servants who have worked in government agencies for many years. Most nominees hold law degrees or other higher education credentials.

Political ideology is equally straightforward, as presidents naturally prefer to appoint individuals sharing political stances identical or similar to their own and their party's to fill federal vacancies. The majority of federal judges appointed by a president are members of the president's own party. While this partisan patronage is less extreme today, presidents undoubtedly remain accustomed to favoring candidates loyal to themselves and their party.

Diversity is equally important. Diversity ensures appropriate representation of men, women, and non-binary individuals, as well as various ethnic groups, helping to ensure that the judiciary as a whole does not systematically favor any single race or gender. Until recent years, the vast majority of U.S. federal judges were white men. President Johnson appointed the first African American Supreme Court Justice in 1967, and President Reagan appointed the first female federal appeals court judge in 1981. Since then, all U.S. presidents have appointed African Americans, Latinos, other minority members, and women as federal judges.^[1]

II. Evaluation of Federal Judges

It should be noted at the outset that, unlike federal judges, state judges are mostly elected; thus, when we discuss state judicial oversight later, we will examine how evaluations serve as a basis for determining whether elected judges are fit for retention. However, proactive, comprehensive, and ex-ante supervisory mechanisms like judicial performance evaluations are not applied as routine oversight tools for federal judges. This is because federal judges enjoy lifetime tenure upon appointment and, as "principal officers," can only be removed through formal congressional impeachment or conviction of high crimes and misdemeanors, ^[2] coupled with the fact that these two sole removal methods rarely occur. ^[3] Furthermore, if Congress truly wishes to impeach a judge, its investigative committees have abundant resources at their disposal, rendering routine, ongoing evaluations of all federal judges unnecessary. Consequently, there is virtually no comprehensive scoring of federal judges' in-term performance comparable to that found in state courts. This section therefore concludes here.

III. Discipline and Removal of Federal Judges

While the removal of federal judges is handled as described above, discipline follows a separate procedure.

To discipline a judge, there must be a legal basis; otherwise, on what grounds can one claim a judge has acted improperly and deserves to be fired? Taiwan has the enacted Judges Act, but what does the U.S. have?

The discipline of U.S. federal judges is governed by two sets of rules. First, regarding substantive standards, oversight largely adheres to the Code of Conduct for United States Judges adopted by the Judicial Conference of the United States (hereinafter the "Code of Conduct"), which is widely recognized within the legal community. Second, regarding procedural operations, it follows the Judicial Conduct and Disability Act of 1980 enacted by the U.S. Congress (hereinafter the "Act"), specifically Chapter 16, Sections 351 through 364, which detail how to file a complaint for judicial review. It should be noted that these two sets of rules do not apply to Justices of the Supreme Court of the United States.

Anyone may file a complaint against a judge. A complainant simply submits the complaint to the court of appeals for the judicial district in which the judge sits (i.e., the circuit court). The meaning of "anyone" is that the complainant does not need to be a party to a case presided over by the judge in question, nor do they need to have any prior relationship with the accused judge, provided the complainant can articulate why the judge is unfit. Court personnel receiving the complaint must forward it to the chief judge of the circuit court of appeals. Upon reviewing the complaint, the chief judge may, pursuant to the Act, take one of three actions: (1) dismiss the complaint; (2) conclude the proceeding; or (3) appoint a special committee to investigate the allegations. Actions (1) and (2) have the same practical effect: the court will take no further action in response to the complaint. The difference between (2) and (1) is that in (2), the chief judge may determine that the accused judge has already received appropriate disciplinary sanction prior to the receipt of the current complaint or that other circumstances render further discipline unnecessary.

If the chief judge dismisses the complaint or concludes the proceeding, the complainant may appeal the decision to the judicial council of the circuit court of appeals. If the judicial council accepts the appeal, it may direct the court of appeals to conduct further investigation. If the judicial council denies the appeal, the appellant has one final avenue of appeal: to the Judicial Conference of the United States. The complete appeal process is outlined below:

Returning to the outset, if the chief judge neither dismisses the complaint nor concludes the proceeding, he or she must immediately appoint a special committee to investigate the related charges. This special committee typically consists of the chief judge plus an equal number of district court judges and circuit judges from within the judicial district. It has the power to issue subpoenas and sometimes hires third-party attorneys to assist committee members with investigations. Following the investigation, the committee submits an investigative report to the district judicial council. The judicial council may then conduct further investigations of its own, dismiss the complaint, or decide to discipline the accused judge based on the existing findings. If the issue is overly grave, the judicial council may also move to refer the case to the Judicial Conference, which in turn may recommend that Congress exercise its impeachment power to remove the unfit judge. A disciplined judge who objects to the district judicial council's sanction may appeal directly to the Judicial Conference. If the judicial council finds judicial misconduct substantiated, it may take three measures to punish the judge: first, temporarily halting the judge's assignment of cases; second, privately reprimanding the judge; and third, publicly reprimanding the judge.

Below is an explanation of how judicial misconduct is determined. As mentioned earlier, the primary substantive standard is governed by the Code of Conduct. The Code of Conduct comprises seven thematic canons, each divided into several subsections that prescribe standards judges must observe in court, out of court, and in their personal lives. Although not a product of statutory legislation, the Code of Conduct serves as the primary basis for adjudicating judicial misconduct because it has been adopted by the Judicial Conference. Specific acts of misconduct adjudicated under the Code of Conduct will be detailed later in our summary of case models.

It is worth noting that, pursuant to the Act, the basis for a judicial complaint cannot involve any substantive issues in any case adjudicated by that judge. In other words, you can say a judge is terrible, but you cannot claim they are terrible because they ruled incorrectly on a specific point in a particular case or misinterpreted evidence. You can only claim, for example, that in a case adjudicated by the judge, the judge ex parte communicated with one party without notifying the other and listened to their testimony, or that one of the parties in a case was a relative of the judge yet the judge failed to recuse themselves. This rule is designed to ensure proper judicial conduct while safeguarding judicial independence. Substantive issues in a case fall within the jurisdiction of appellate courts with appellate jurisdiction and do not belong to the circuit judicial council. The reason why over 95% of complaints are dismissed is precisely because most complainants place excessive emphasis in their complaints on matters directly tied to the substantive rights and wrongs of case adjudications.

Supervision Mechanisms at the State Level

State judges are mostly selected through democratic elections, or if not directly elected, appointed by a democratically elected body or official, and they do not enjoy lifetime tenure like federal judges. This provides Americans with another mechanism to make judges think twice before misbehaving: using judicial performance evaluations to help voters decide whether a judge should be retained. State judges in the U.S. enjoy generous compensation, with annual base salaries reaching hundreds of thousands of dollars. Taking New York State as an example, the annual salary of a district court judge is $174,000, ^[4] comparable to ordinary lawyers at lucrative private law firms, accompanied by comprehensive insurance and benefits. Furthermore, judges hold high social status in the U.S., typically serve their hometown communities, and enjoy broad discretionary powers—even allowing policy considerations to form the basis of rulings. Consequently, many seasoned legal professionals aspire to become judges to achieve both fame and fortune. Naturally, individuals who attain judgeships will strive by all means to win retention to continue enjoying this favorable lifestyle. Therefore, whether one can be retained is undoubtedly an excellent check on state judges. The advantage of this approach is that, compared to disciplinary sanctions targeting individual reported judges, it can more fundamentally, effectively, and proactively deter judicial misconduct over the long term.

I. Selection of State Judges

Judicial selection systems vary across U.S. states, but generally fall into five major categories: legislative appointment, executive appointment, nonpartisan election, partisan election, and merit selection. Some states may use a combination of these five categories, and selection methods may differ across court levels or judicial districts. Moreover, even when an entire state adopts one of the five methods, the specific procedures employed may differ. Because the specific practices of each state can be looked up whenever needed, ^[5] this report deems it unnecessary to provide exhaustive descriptions. Instead, we will only briefly outline how these five categories operate. ^[6]

1. Legislative Appointment

   This method is rarely used today. Only two states in the U.S., South Carolina and Virginia, retain mechanisms granting the legislature plenary power to appoint judges. In South Carolina, the state government established a special ten-member committee composed of legislators and ordinary citizens, named the "Judicial Merit Selection Committee." This committee is responsible for screening judicial applicants and making recommendations to the state legislature. The state legislature then makes the final decision to select judges.

2. Executive Appointment

   Executive appointment closely resembles the federal judicial appointment system, requiring nomination by the governor and confirmation by the state senate. Early on, most states modeled their systems after the federal system, but by the early 19th century, an increasing number of states abandoned this approach. Currently, only three states—California, New Jersey, and Maine—retain the gubernatorial appointment system. Among them, nominees by the governors of Maine and New Jersey must be confirmed by the state senate, whereas in California, a nominee must be confirmed by a three-member commission established by the state legislature. Among other states utilizing elected judge systems, 28 allow governors to temporarily fill vacancies through appointment when a judge's term ends prematurely.

3. Nonpartisan Election

   When a state selects judges via popular election without providing political party affiliations on the ballot, it is termed a nonpartisan election. In reality, however, even so-called nonpartisan elections are not entirely nonpartisan; states like Ohio and Michigan require judicial candidates to first secure party endorsements before submitting their names to voters. Furthermore, recent federal court rulings have tended to restrict states' control over judges' political identities. Therefore, the long-term prospects for nonpartisan elections are not particularly bright.

4. Partisan Election

   This is easily understood. In partisan elections, judges act like politicians, first securing party nominations and then representing their parties to vie for voters' ballots. Campaign activities such as canvassing closely mirror normal political elections.

5. Merit Selection

   Merit selection is also known as the "Missouri Plan" or "commission-based appointment." The general operating model involves a commission that reviews applicants' credentials and selects the most qualified candidates to fill vacancies. Once selected, the candidate is formally appointed by a democratically elected official (typically the governor). Subsequently, when deciding whether the judge may be retained, a voter retention election is generally held. The judge's name appears on the ballot, and voters simply select "yes" or "no" to retain them. If retained, excellent; if not, the Missouri Plan process is repeated to select a new person to fill the vacancy.

II. Evaluation of State Judges

Precisely because state judges do not have lifetime tenure and retention is always an issue, judges wishing to remain on the bench care deeply about whether they can convince voters during a retention election that they have performed well during their term, thereby securing re-election. Under these circumstances, comprehensive judicial performance evaluations acquire practical significance, as such evaluations serve as a crucial reference for voters making their choices.

Currently, 17 states in the U.S. have formal judicial performance evaluation mechanisms, plus the District of Columbia. Among them, evaluation results in 7 states are provided to voters to aid in retention election decisions; evaluation results in 3 states plus the District of Columbia are provided to the official or commission responsible for appointing judges; summaries of evaluation results in 2 states are provided to the public to enhance trust in the state judicial system; and evaluation results in the remaining 5 states are provided solely to the judges themselves for self-reflection. ^[7]

An issue arises here: the judicial system must be independent, but if judges must cater to the whims of evaluation commissioners and the public, how can they maintain independence? Taiwan's law provides that judges shall adjudicate independently in accordance with the law. In fact, the way Americans resolve this issue is by focusing evaluations strictly on adherence to "the law." Those who believe judicial independence conflicts with judicial accountability likely misunderstand the true concept of judicial independence. Judicial independence means that judicial adjudication is free from improper external influences—it does not mean judges can rule however they please without anyone holding them accountable. This is what is meant by "in accordance with the law."

Evaluations likewise require standards. While these standards vary slightly across states, most adopt minor modifications of the Model Code of Judicial Conduct promulgated by the American Bar Association (ABA). ^[8] The ABA's evaluation standards for state reference comprise seven main canons, each with several subsections, comprehensively providing various criteria for evaluating judges. The composition of the evaluation commission is equally important. While current practices vary across states, most ensure diversity among commission members, avoiding confinement solely to legal professionals, and infused with a high degree of democratic character. Moreover, evaluation questionnaires never inquire about substantive issues concerning any specific case adjudication; instead, they survey the judge's overall performance during their term, further helping assess judicial performance while safeguarding judicial independence. ^[9]

The results of such evaluation systems are theoretically accurate. Judges who issue arbitrary rulings, take bribes, or favor one side are likely to receive widespread negative reviews. Even lawyers who have benefited from judicial favoritism have little incentive to "repay" the judge because, first, their case has concluded, and repaying offers no benefit. Second, their isolated favorable reviews carry little weight in broad poll results. Furthermore, if survey respondents are not anonymous, 99 negative reviews out of 100 with only a few positive ones might even arouse suspicion from others. Third, common sense dictates that both good and bad people appreciate good individuals; thus, both good and bad people appreciate good judges. If someone privately knows a judge is terrible, they may still give negative reviews when it does not affect their own vested interests. Meanwhile, dedicated judges receive favorable reviews, creating a virtuous cycle.

III. Discipline and Removal of State Judges

In addition to using retention evaluations for long-term behavioral oversight, U.S. states, like the federal government, maintain a disciplinary system. The difference is that state disciplinary systems possess the power to remove judges, eliminating the need to rely solely on congressional removal as seen at the federal level. The standards for state judicial discipline are state-version Codes of Judicial Conduct that closely mirror the federal Code of Conduct. At the state level, the state supreme court holds ultimate decision-making authority over judicial discipline and removal. Taking Louisiana as an example, complaints are first submitted by complainants to the state judiciary commission. The commission consists of nine members serving four-year terms, including three judges selected by the state supreme court, three lawyers, and three lay citizens. The state judiciary commission conducts an initial investigation to determine whether a disciplinary hearing is warranted for a given complaint. ^[10] The state supreme court makes further disciplinary decisions—including the removal of unfit judges—based on recommendations from the judiciary commission. The selection of commission members also varies by state, but incorporates a high degree of democratic elements. Taking California as an example, commission members include the state chief justice, 14 judges appointed by the chief justice, 4 lawyers nominated by the State Bar, and one representative appointed by each house of the state legislature.

Summary of Case Categories^[11]

Because the federal Code of Conduct and state Codes of Conduct share a high degree of similarity, judicial misconduct exhibits significant overlap. Consequently, our summary of typical cases is presented collectively. Below are common types of judicial unfitness cases in the U.S.:

I. Inappropriate Courtroom Speech and Conduct:

Typically includes direct violations of state Codes of Conduct, such as inappropriate remarks, comments insensitive to parties' feelings, sexually suggestive insinuations, racial slurs, and even acts of physical violence.

II. Abuse of Judicial Authority

III. Administrative Dereliction of Duty and Case Management Failures

If a judge delays rendering judgments indefinitely, postponing decisions endlessly, fails to organize pretrial procedures on schedule, or neglects other procedural timelines, it constitutes substantive and case management failures.

IV. Improper Campaign Conduct

Judicial officers are subject to stricter restrictions during campaigns than ordinary politicians. The most common violation is the dissemination of false information.

V. Ex Parte Communications

The federal and most state Codes of Conduct prohibit judges from communicating with one party regarding substantive issues without notifying the other party. However, non-substantive procedural matters may be addressed unilaterally, such as scheduling deadlines for filing briefs and documents.

VI. Corruption and Theft