The quiet, terrifying weaponization of state judicial conduct commissions

With great power comes great responsibility. Judges don’t always live up to it.

In 2016, an Arkansas judge resigned after facing allegations that he had sentenced male defendants to “community service” involving sex acts, spankings and photographing the men bent over.

In 2022, the Ohio Supreme Court removed a municipal court judge who had engaged in more than 100 incidents of misconduct, including bringing criminal charges against someone for rolling her eyes in court and cursing.

And this summer, a New York judge was suspended for a “racially offensive, profane, prolonged public diatribe outside a high school graduation party” in which she threatened to shoot Black teenagers.

In each of these cases and dozens more each year, little-known state judicial conduct commissions play a key role in investigating the misconduct. These often-overlooked bodies exist in every state and typically include judges, attorneys and other members of the public. Their job is to investigate complaints and hold judges accountable for misconduct.

But what happens when politicians use these commissions to target judges they disagree with or seek favorable outcomes in court? We’re starting to find out.

In recent years, state legislators, governors and other partisan actors have increasingly sought to exert control over state courts to get the outcomes they want.

In the wake of shifts in the U.S. Supreme Court — including its overruling of Roe v. Wade in 2022 — state courts have become the primary legal battleground for major issues like abortion, voting rights and gerrymandering. State supreme court election spending has skyrocketed, and legislators have advanced hundreds of measures in recent years to increase their control over the judiciary.

Among these efforts, some politicians are quietly weaponizing the commissions that oversee judicial conduct, as examined in a new report.

These commissions wield significant power. At the most extreme, they can alter the makeup of courts by suspending or removing judges (often subject to state supreme court review). But even when commissions do not ultimately impose sanctions, they can chill judicial speech or intimidate judges by embarking on lengthy investigations and forcing judges to rack up legal fees defending themselves.

In North Carolina, for example, the state judicial conduct commission opened an investigation last summer into state Supreme Court Justice Anita Earls for comments she had made about bias in the state judiciary. She sued the commission, arguing that the investigation had chilled her speech and infringed on her First Amendment rights.

Meanwhile, in Wisconsin, Republican legislators tried to use the commission to force a newly elected justice to recuse herself from a case challenging the state’s Republican-leaning legislative maps based on contributions to her campaign from the Democratic Party and comments she made while campaigning.

Wisconsin’s ethics rules typically do not require justices to recuse based on campaign contributions or comments, and the state’s judicial conduct commission dismissed the complaints against her without action. But the commission members did not escape unscathed — following that decision, the Republican-controlled senate effectively fired four of the commission’s members.

Alongside these disputes, legislators in several states have sought to increase their control over who sits on the commission, which gives them more control over how the commission operates.

In Montana, for example, the legislature has given itself a large role in appointing commission members, whereas it previously had none. And in North Carolina, the legislature also increased its role in appointments and replaced four attorney members with four judges amid concerted efforts to move the judiciary to the right.

At least six other states have similarly proposed or enacted changes to commission appointment methods since 2016.

The concern with this shift is that governors and legislators often have a major stake in the outcome of state court litigation — and they are often themselves parties before state courts. The changes in Montana, for example, followed multiple disputes with the judicial branch, including some legislators’ disagreements with court rulings that struck down laws the legislature had passed.

As one article described it, “Some members of the GOP think judges are too liberal, and some don’t like their bills getting tossed for being unconstitutional.”

But a key feature of state courts is their independence. They are supposed to independently rule on whether a law is constitutional — it is part of the checks and balances of multiple branches of government. Giving the legislature or governor significant control over commission membership and decision-making raises serious concerns about this independence.

This problem can be fixed. There are many methods for designing state judicial conduct commissions to promote both judicial accountability and independence. But it is ultimately up to policymakers and those who hold them accountable to push for these practices.

If the public doesn’t pay attention to what’s going on, partisan actors may continue unhindered in their growing campaign to weaponize judicial conduct commissions.

Bryna Godar is a staff attorney at the State Democracy Research Initiative.