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On August 14, 2017, the Committee on Judicial Conduct and Disability of the Judicial Conference of the United States issued a decision in which, among other things, it affirmed the order of the Sixth Circuit Judicial Council directing a federal judge to undergo a mental health examination and to submit to any treatment or counseling deemed necessary. The Committee found that part of the order to be “warranted and permissible.”

The Constitution establishes the judicial power in Article III and provides, “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior.” The constitutional remedy for bad behavior is impeachment. In 1980, though, Congress enacted the Judicial Conduct and Disability Act, which provides authority to a special committee to “conduct an investigation as extensive as it considers necessary.” 28 U.S.C § 353(c).

As one commentator has noted, “The investigation ... appears to move into uncharted territory for disciplinary cases.” Does a Circuit Judicial Council have the authority to require a federal judge to submit to psychological testing? If so, what showing is necessary? Simple cantankerousness can’t be enough, but where is the line between being a curmudgeon and being mentally ill? Do the federal courts have a mechanism for figuring that out?

Featuring: Prof. Charles Gardner Geyh, John F. Kimberling Professor of Law, Indiana University Maurer School of Law

Prof. Arthur D. Hellman, Professor of Law; Sally Ann Semenko Endowed Chair, University of Pittsburgh School of Law  

Prof. Ronald Rotunda, Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, Chapman University Dale E. Fowler School of Law