could be done by publicizing unfounded allegations of misconduct. Except in cases in which the proposed Court on Judicial Conduct and Disability held a de novo hearing, the Senatepassed bill specifically provided for confidentiality at all stages of the complaint procedure "unless final adverse action is taken against a judge, not including an order of dismissal.” Although the language of the final legislation is derived from the House bill and is limited to materials "related to investigations," there is no indication that nonconfidential treatment of other materials was contemplated.

We believe that it is consistent with the congressional intent to protect a judge or magistrate from public disclosure of a complaint, both while it is pending and after it has been dismissed if that should be the outcome. On the other hand, the goal of assuring the public that the disciplinary mechanism is operating satisfactorily is better served by making the process more open. Perhaps even more important, publication of some of the chief judges' dismissal orders-as contrasted with mere public availability-would surely improve the operation of the mechanism. For the most part, the fifteen chief judges with responsibility under this statute have been making decisions about issues under the statute quite unaware of how the same or similar issues have been treated in other circuits and without the benefit that flows from scholarly critique. A body of published precedent can only be helpful to us all.

Rule 17 attempts to accommodate these conflicting interests. It provides for public availability of decisions of the chief judge and the judicial council, and the texts of any memoranda supporting their orders, together with any dissenting opinions or separate statements by members of the judicial council. However, these orders and memoranda are to be made public only when final action on the complaint has been taken and any right of review has been exhausted. Whether the name of the judge or magistrate is disclosed will then depend upon the nature of the final action. If the final action is an order predicated on a finding of misconduct or disability (other than censure or reprimand by means of private communication) the name of the judge or magistrate will be made public. If the final

action is dismissal of the complaint, or a conclusion of the proceeding by the chief judge on the basis of corrective action taken, the name of the judge or magistrate will not be disclosed.

If a complaint is dismissed as moot after appointment of a special committee, rule 17(a)(4) leaves it to the judicial council to determine whether the judge or magistrate will be identified. In such a case, no final decision has been reached on the merits, but it may be in the public interest-particularly if a judicial officer resigns in the course of an investigation-to make the identity of the judge or magistrate known.

It should be noted that rule 17 provides for apparently inconsistent treatment where a proceeding is concluded on the basis of corrective action taken. If a chief judge concludes a proceeding on that basis, rule 17(a)(1) provides that the name of the judge or magistrate will not be disclosed. Shielding the name of the judge or magistrate in this circumstance should contribute to the frequency of this kind of informal disposition. Once a special committee has been appointed, and a proceeding is concluded by the full council on the basis of corrective action taken, rule 17(a)(3) provides for disclosure of the name of the judge or magistrate. An “informal” resolution of the complaint at this stage is likely to look very much like any othe. council order, and should be disclosed in the same manner.

The proposal that decisions be made public only after final action has been taken is designed in part to avoid disclosure of the existence of pending proceedings. Because the Judicial Conference has not established a deadline for filing petitions for review with the Committee to Review Judicial Council Conduct and Disability Orders, rule 17(d) provides for making decision public if thirty days have elapsed without the filing of a petition for review.

We note that public availability of orders under 28 U.S.C. § 372(c)(6)(B) is a statutory requirement. The statute does not prescribe the time at which these orders must be made public, and it might be thought implicit that it should be without delay. Similarly, the statute does not state whether the name of the judge or magistrate must be disclosed, but it could be argued that such disclosure is implicit. In view of the legislative in

terest in protecting a judge or magistrate from public airing of unfounded charges, we think the law is reasonably interpreted as permitting nondisclosure of the identity of a judicial officer who is ultimately exonerated and also permitting delay in disclosure until the ultimate outcome is known. We note in this connection that congressional leaders described the public availability requirement as applying to "sanctioning orders." Finally, the rule provides that the identity of the complainant will be disclosed only if the chief judge so orders. Identifying the complainant when the judge or magistrate is not identified would of course increase the likelihood that the identity of the judge or magistrate would become publicly known, thus thwarting the policy of nondisclosure. If the identity of the complainant is not to be made public in such cases, we see no particular reason to change the rule and make it public routinely in cases in which the judge or magistrate is identified. However, it may not always be practicable to shield the complainant's identity while making public disclosure of the judicial council's order and supporting memoranda; in some circumstances, moreover, the complainant may consent to public identification.

Notes

Prologue

1. Alexis de Tocqueville, Democracy in America, ed. F. Bowen, rev. ed. (New York: Alfred A. Knopf, 1953), p. 151.

2. Alpheus T. Mason, "Myth and Reality in Supreme Court Decisions," Virginia Law Review 48 (1962), pp. 1385, 1405. 3. D. Lauter, "Will Claiborne's Impeachment Spur Overhaul of Process?" National Law Journal, October 20, 1986, p. 8. 4. S.J. Res. 113, 100th Cong., 1st sess., April 9, 1987.

Chapter 1

1. Alexander Hamilton, "The Confederation: Lack of Powers and of Proper Ratification," paper no. 22, The Federalist, ed. B. Wright (Cambridge, Mass.: Belknap Press of Harvard University Press, 1961), p. 197.

2. See John D. Feerick, "Impeaching Federal Judges: A Study of the Constitutional Provisions," Fordham Law Review 39 (1970), pp. 1, 12-25, 47-52.

3. Hamilton, "The Judges as Guardians of the Constitution," paper no. 78, The Federalist, pp. 490-91.

4. See Dorothy W. Nelson, "Variations on a Theme-Selection and Tenure of Judges," Southern California Law Review 36 (1962), pp. 4, 9.

5. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), pp. 176-80.

25-694 - 90 - 22

6. "Recess Appointments to the Supreme CourtConstitutional but Unwise," note, Stanford Law Review 10 (1957), pp. 124; 128, n. 12.

7. Hamilton, "The Position of the Judiciary," paper no. 79, The Federalist, p. 497.

8. Ibid.

9. American Bar Association, "Code of Judicial Conduct," Canon 1, reprinted in Judicature 69 (1985).

10. Edward D. Re, "Judicial Independence and Accountability: The Judicial Councils Reform and Judicial Conduct and Disability Act of 1980, Northern Kentucky Law Review 8 (1981), pp. 221, 223.

11. See, generally, G. J. Schulz, Creation of the Federal Judiciary: A Review of the Debates in the Federal and State Conventions and Other Papers, S. Doc. 91, 75th Cong., 1st sess., 1937. 12. Congressional Globe, 41st Cong., 1st sess., 1869, pp. 341-42, opp. 2.

13. Philip B. Kurland, "The Constitution and the Tenure of Federal Judges: Some Notes from History," University of Chicago Law Review 36 (1969), pp. 665-66.

14. Ibid.

15. Ibid., p. 698.

16. Alpheus T. Mason, "Myth and Reality in Supreme Court Decisions," Virginia Law Review 48 (1962), pp. 1385, 1405. 17. Raoul Berger, Impeachment: The Constitutional Problems (Cambridge, Mass.: Harvard University Press, 1973), p. 192.

Chapter 2

1. Preble Stolz, "Disciplining Federal Judges: Is Impeachment Hopeless?" California Law Review 57 (1969), pp. 659; 663, n. 22. 2. Alexander Hamilton, "The Position of the Judiciary,” paper no. 79, The Federalist, ed. B. Wright (Cambridge, Mass.: Belknap Press of Harvard University Press, 1961), p. 498.

3. Statement of President Jimmy Carter signing S. 1873 into law, Weekly Compilation of Presidential Documents 16, October 15, 1980, pp. 2239-40. Also see the speech by Rufus L. Edmusten, chief counsel staff director, Senate Subcommittee on Separa