Judging the Judges

By: Lauren Scribner

Judges are in the business of holding people accountable for crimes and misconduct—but how do we hold judges accountable for their own ethical lapses?

Recently, in a moment of frustration, Florida Second Circuit Judge J. Layne Smith told three attorneys practicing in his courtroom that he “would like to tell the deputy to pull his gun and shoot all three of [them] as far as [his] level of frustration right now.”[1] Yes—you read that correctly. A presiding judge vocalized his thought to have attorneys practicing in his courtroom shot by courtroom security.

What should the consequence be for using such threatening language? A mere public reprimand and recusal from that case?[2] Or, should there be some sort of tangible punishment? Think about it this way: what if your child’s teacher threatened to have the children in her classroom shot? Or, what if, during a business meeting, your boss toyed with the idea of having another colleague take out a gun and fire it in your direction? Would society consider a metaphorical slap on the wrist to be sufficient to address such behavior?

Similarly, federal judges can be even more insulated from consequences for “bad” behavior. This is because as a “civil officer[3] of the United States,” Federal judges are covered by the same constitutional impeachment provision as presidents (Article II, Section 4), which allows removal “on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”[4] Additionally, Article III, Section 1, which creates the federal judiciary, guarantees that judges “shall hold their offices during good behavio[]r.”[5] Congress appears to take the view that “good behavior” is not an “independent standard for impeachable conduct” . . . . but “simply indicates that judges are not appointed to their seats for set terms and cannot be removed at will.”[6]

The impeachment process requires: (1) articles of impeachment approved by a majority of the House of Representatives; and (2) a conviction on any article by a two-thirds supermajority of the Senate.[7] Once convicted, while the Constitution permits either “removal from office or removal and prohibition against holding any future offices of ‘honor, trust or profit under the United States,’” Senate precedent from 1936 allows for automatic removal and a separate vote on the appropriateness of disqualifying the individual from holding future federal offices of public trust.[8]

But this impeachment power is very rarely used. Historically, it has been saved for cases of severe misconduct. In other words, “good behavior” seems to be anything that is not considered very, very, bad behavior.

Indeed, over the last fifty years, only four federal district judges have been removed from the bench using the impeachment process.[9]

• Harry Claiborne – removed in 1986 for income tax evasion and lying on tax returns
• Alcee Hastings – removed in 1988 for perjury and accepting a bribe
• Walter Nixon – removed in 1989 for perjury before a grand jury
• Thomas Porteous – removed in 2010 for bribery and financial fraud

Additionally, in recent years, two federal judges have opted to resign when faced with the threat of impeachment.

In 2009, Samuel Kent resigned after being charged with sexual assault against two female court employees, lying about it, and therefore also being charged with obstructing and impeding an official proceeding, as well as making false and misleading statements.[10]

More recently, in 2024, Joshua Kindred resigned after an investigation uncovered sexual misconduct, including having a sexual relationship with an Assistant U.S. Attorney (AUSA) practicing in his district who was formerly his law clerk, as well as creating a hostile workplace environment.[11] Throughout the investigation, Kindred repeatedly denied the allegations before eventually admitting to the sexual relationship at issue.[12]

The investigations that led to both Kent and Kindred’s pre-impeachment resignations occurred by the respective circuit courts housing their districts, pursuant to the Judicial Conduct and Disability Act, 28 U.S.C. §§ 351–364, and the Rules for Judicial-Conduct and Judicial-Disability Proceedings.[13] Under the Act and accompanying Rules, a federal circuit judicial council or chief judge can investigate a lower federal judge and impose corrective actions, including temporarily suspending the lower judge from hearing new cases “for a time certain.”[14] The Act specifically mentions that “[u]nder no circumstances” can the circuit court “order removal from office of any judge appointed to hold office during good behavior.”[15]

In each of these cases, the circuit court referred its findings to the Judicial Conference to recommend further action. Notably, Kindred’s misconduct was so flagrant that “[t]he U.S. Judicial Conference [then] . . . took the rare step of referring Kindred to Congress for potential impeachment even after he resigned because it determined his ‘reprehensible’ sexual misconduct was so severe it warranted review by Congress.”[16] Just this week, the Department of Justice (DOJ) used this investigative process to file a complaint with the Eighth Circuit alleging that at least seven federal judges in the District of Minnesota “flagrantly violated” the judicial code of conduct by speaking to the New York Times about pending cases in the court.[17] The complaint calls for recusal of the respective judges from certain cases, as well as an investigation by the Judicial Counsel.[18]

In short, the cases of these six judges are the rare examples of what is considered to be not “good behavior.” The relative infrequency with which impeachment proceedings are used begs the question of what other misconduct has gone unaddressed simply because it was not “severe” enough to warrant (or at least threaten) impeachment?

It should go without saying that the judiciary’s independence from the other branches of government is a foundational pillar of our democracy. It is vitally important that judges are free to rule without fear of removal by those who may disagree with the application of the law or have differing political views. And, to be clear, judges are not insulated from criminal prosecution; they are expected to be law-abiding citizens just like everyone else.

But this same principle of judiciary independence also results in a general lack of oversight over judges, particularly in the federal system. The problem is at least in part that “the people responsible for investigating and disciplining federal judges are themselves federal judges, creating potential conflicts of interest and institutional pressures toward leniency.”[19] The waters become even murkier when misconduct is not necessarily criminal, but may also not constitute what society would consider “good behavior.” In other words, a judge may be able to largely “get away with” saying someone should be shot, but your child’s teacher may not.

[1] Ebert, Alex, Florida Judge Reprimanded for Threat to Have Lawyers Shot, Bloomberg Law: Litigation (Sept. 24, 2026), https://news.bloomberglaw.com/litigation/florida-judge-reprimanded-for-threat-to-have-lawyers-shot (last accessed: Oct. 1, 2026).

[2] See id.

[3] “While the term ‘civil [o]fficers’ is not defined by the Constitution, it has been interpreted to apply to members of the judiciary.” Moyer, Bruce, Washington Watch: When Federal Judges Are Impeached, Federal Bar Association: Blog (Mar. 11, 2020), https://www.fedbar.org/blog/washington-watch-when-federal-judges-are-impeached/ (last accessed: Oct. 1, 2026).

[4] See U.S. Const. art. II, § 4, (available at: https://www.law.cornell.edu/constitution/articleii#section4).

[5] See U.S. Const. art. III, §1 (available at: https://www.law.cornell.edu/constitution/articleiii).

[6] See ArtIII.S1.10.2.3 Good Behavior Clause Doctrine, Constitution Annotated, https://constitution.congress.gov/browse/essay/artIII-S1-2-1-3/ALDE_00000686/%5B’impeachment’%5D (last accessed: Oct. 1, 2026) (citing Charles W. Johnson, John V. Sullivan, and Thomas J. Wickham, Jr., House Practice: A Guide to the Rules, Precedents and Procedures of the House 608–13 (2017)).

[7] Moyer, supra.

[8] Id.

[9] See Impeachment of federal judges, Ballotpedia: Federal Courts, https://ballotpedia.org/Impeachment_of_federal_judges (last accessed: Oct. 1, 2026).

[10] Judge Samuel Kent: Sexual Assault, Obstruction, and the Limits of Judicial Immunity, Justice Bureau: Judicial Corruption (June 2026), https://justicebureau.com/learn/articles/article-155 (last accessed: Oct. 1, 2026).

[11] Kitchenman, Andrew, Council finds Alaska federal judge committed misconduct with relationship, hostile workplace, lies, Alaska Beacon: Justice (July 8, 2024), https://alaskabeacon.com/2024/07/08/council-finds-alaska-federal-judge-committed-misconduct-with-relationship-hostile-workplace-lies/ (last accessed: Oct. 1, 2026)

[12] See id.

[13] Rules accessible at: https://www.uscourts.gov/sites/default/files/document/guide-vol02e-ch03.pdf.

[14] See, e.g., 28 U.S.C. § 354(2)(A)(i).

[15]  See 28 U.S.C. § 354(3)(A).

[16] Pierson, Brendan, First conviction overturned after Alaska judge’s misconduct scandal, Reuters: Legal (Oct. 1, 2024), https://www.reuters.com/legal/legalindustry/first-conviction-overturned-after-alaska-judges-misconduct-scandal-2024-10-01/ (last accessed: Oct. 1, 2026). Kindred’s misconduct also resulted in an overturned conviction for at least two defendants who argued that their convictions were tainted by the conflicts of interest between Kindred and the prosecutor’s office. See Grove, Casey, Alaska Supreme Court orders disgraced former federal judge Kindred disbarred, Alaska Public Media (Nov. 7, 2025), https://alaskapublic.org/news/2025-11-07/alaska-supreme-court-orders-disgraced-former-federal-judge-kindred-disbarred (last accessed: Oct. 1, 2026).

[17] See Monyak, Suzanne, DOJ Accuses Minnesota Judges of Misconduct for Media Remarks (3), Bloomberg Law (Sept. 30, 2026), https://news.bloomberglaw.com/us-law-week/doj-accuses-minnesota-judges-of-misconduct-over-media-remarks (last accessed: Oct. 1, 2026); Complaint accessible at:  https://www.justice.gov/sites/default/files/2026-09/complaint_of_judicial_misconduct_file_stamped.pdf.

[18] See id.

[19] See Judge Samuel Kent, supra.