Wednesday, October 10, 2007
What the public needs to know in forming an opinion on whether U.S. District Judge Sam Kent ought to be impeached
I had intended not to blog about the formal reprimand and admonishment delivered on Sep. 28, 2007, by the Fifth Circuit Judicial Council to U.S. District Judge Samuel B. Kent of Galveston, and I had said as much in response to a question from a regular reader in the comments on another post.
But I've changed my mind because of what I perceive to have been a serious campaign of distortion in other publicity about Judge Kent by people who do, or at least should, know better. They say Congress ought to commence an impeachment investigation — but they're not telling you something very important that you ought to know in forming your own opinion on that subject.
The Council comprises Fifth Circuit Chief Judge Edith H. Jones, plus nine other Circuit Judges and nine District Judges, all from the three states that make up the Fifth Circuit (TX, LA, and MS). On the basis of a Special Investigative Committee's investigation of a sexual harassment complaint against Judge Kent made by a court employee — which investigation included the taking of sworn testimony from from the complaintant and other fact witnesses, and in which Judge Kent was represented by counsel — the Council reprimanded Judge Kent "for the conduct that the [Committee's] report describes," the details of which are not in the public record. It also admonished Judge Kent "that his actions described in the report violated the mandates of the Canons of the Code of Conduct for United States Judges and are deemed prejudicial to the effective and expeditious administration of the business of the courts and the administration of justice." The Council "concluded these proceedings because appropriate remedial action had been taken, including but not limited to [Judge Kent's] four-month leave of absence from the bench, reassignment of the Galveston/Houston docket and other measures." The nature of the "other measures" has not been made public, but a fair bet would be that they include sensitivity training; they may or may not include a private apology to the complainant or others. The Council's decision also doesn't foreclose independent civil or criminal proceedings arising out of the same conduct.
Since then, however, there has been a steady drumbeat of self-reinforcing and unrelentingly negative publicity about the reprimand from the Houston Chronicle in a series of news articles mostly written by Harvey Rice and Lise Olsen (e.g., on Oct. 4, Oct. 5, and Oct. 7) and op-eds by columnist Rick Casey (on Oct. 2 and Oct. 3). There have also been a series of six posts on The Volokh Conspiracy (on Sep. 28, Sep. 30, Sep. 30, Oct. 2, Oct. 3, and Oct. 8), the last five by Assistant Law Prof. Ilya Somin of George Mason University's School of Law, who in 2001-2002 clerked for Fifth Circuit Judge Jerry E. Smith of Houston (one of the 19 District and Circuit Judges on the Council).* The consistent theme being promoted by all of these articles, op eds, and last five blog posts is that the Council's punishment was inadequate and that Congress ought to consider impeaching Judge Kent.
I've known Judge Kent by reputation since he was a practicing lawyer at one of Galveston's most prestigious firms, but I can't recall ever having met him, and neither can I recall ever appearing before him; I can't rule out the possibility that I have, but if so, it was on nothing substantial. I know absolutely nothing about this investigation beyond what I've read in the Council's order and the press. I refuse to gossip about the facts underlying the complaint and reprimand myself, and I'll summarily delete gossip (whether about Judge Kent or the complaintant) left in the comments to this post. This isn't about gossip.
Through an entirely unrelated matter from another state, federal circuit, and Judicial Council, I did have occasion a couple of years ago to become very familiar with the structure and workings of the existing system for the making and handling of complaints against federal judges. As a complete bystander to a federal case, having no personal interest other than as a citizen and a member of several unrelated federal bars and the Texas bar, I filed such a complaint, and then appealed the initial determination on it by that federal circuit's chief judge to its judicial council. I ended up being satisfied with the results, which were never made public, and which I won't go into here.
But thus it was, for example, that I knew beyond any doubt that Chronicle columnist Rick Casey was committing a libel when he falsely claimed in his October 3rd column that the Council's decision conclusively established Judge Kent's guilt under a state criminal statute forbidding sexual harassment by a public official "acting under color of his office." Surely even a clown like Casey should have been able to figure out that the Judicial Council wasn't attempting to determine whether any state or federal statutes had been violated, didn't make any findings "beyond a reasonable doubt," and while permitting Judge Kent's limited participation through his counsel nevertheless didn't afford Judge Kent the basic procedural safeguards (like the ability to confront and cross-examine his accuser in public) that are core rights of the criminal justice system.
Apart from Casey's rants, it seemed to me that there was an important aspect to these proceedings which was being ignored in the Chronicle's stories and Prof. Somin's posts. Against my original intention, I started leaving politely protesting comments in Prof. Somin's posts, which he proceeded to utterly ignore. My frustration grew, as did my conviction that either Prof. Somin didn't know what he was talking about, or that he was deliberately obscuring that important aspect for some reason. Finally, by standing atop, and perhaps crossing over, the borderline between civility and rudeness, I was able to provoke a few responses from him in the comments to his Oct. 8th post. (I'll let you, gentle readers, decide what conclusions if any you want to draw about Prof. Somin from those, and about how well or poorly he was able to defend his positions.)
So what's the important aspect? It's highlighted by this quotation from Prof. Somin in the Chronicle's most recent news article (on Oct. 7th) banging the impeachment drum:
Ilya Somin, a law professor at George Washington University who clerked at the 5th Circuit, noted that federal judges have limited abilities to discipline a colleague: They can reprimand and reassign cases, but they cannot take away his salary or force him out.
Somin said the public record on Kent's "long history of ethical problems" is significant enough that Congress should look into it.
Similarly, Prof. Somin had written repeatedly to that same effect in his own blog posts (and in his comments in response to other readers than me), portraying the Council as effectively toothless, with impeachment being the obvious remedy that is justified, but one utterly beyond the Council's power to accomplish or address.
And that, friends and neighbors, is — to use an esoteric, technical legal term of art — an absolute load of crap.
What I'm about to tell you — what Prof. Somin and the Houston Chronicle have systematically failed to acknowledge — is taken directly from Chapter 16 of Title 28 of the United States Code.
This Council was not toothless. Rather, through the Judicial Improvements Act of 2002 (which in turn was a revision of the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980), Congress recognized that there's no one better suited, at least in the first instance, than the Chief Judges of each Circuit, their respective Judicial Councils, and the Judicial Conference to determine when a federal judge is so badly misbehaving as to warrant impeachment.
Therefore, Congress deliberately charged Judicial Councils including this one with the statutory obligation to consider whether to recommend the impeachment of judges like Judge Kent. And if the Council decided that impeachment was warranted, the Council could have made a referral to the Judicial Conference of the United States, per 28 U.S.C. § 354(b), with a determination that there are grounds for Congressional impeachment, upon the basis of which the Conference could send the complaint on to the Congress per 28 U.S.C. § 355.
Instead, by a majority vote, and without a single written dissent, the Council concluded that lesser penalties and remedies were indeed adequate. Nineteen federal judges — who've worked elbow to elbow with Judge Kent for years and who've had access to sworn testimony that neither you, I, Prof. Somin, nor the Chronicle's reporters have seen — are thus on record, after having been tasked to make that determination by Congress, as saying that impeachment is not justified here.
Indeed, there were a whole range of harsher penalties short of recommending impeachment that the Council also could have crafted, but declined to impose. The Council could have provided for a longer suspension. At least a couple of cases suggest that suspensions of up to fifteen years might be permissible without creating "quasi-impeachment" problems. See McBryde v. Committee to Review Circuit Council Conduct and Disability Orders, 83 F. Supp. 2d 135, 165 & n.18 (D.D.C. 199) (rejecting separation of powers arguments, confirming Congressional power to delegate investigation and imposition of sanctions less severe than impeachment to the Conference, and rejecting "temporary impeachment" characterization of sanction that included one-year suspension from receiving new cases), aff'd in part & vacated in part for mootness, 264 F.3d 52 (D.C. Cir. 2001), cert. denied, 537 U.S. 821 (2002). There's also little question but that the Council's order could have been drafted in much harsher terms without revealing any specific details of the complaint. And the Council could have formally (and publicly) requested, per 28 U.S.C. § 354(a)(2)(B)(ii), that Judge Kent voluntarily retire. While that wouldn't have been binding upon him, it's simply ridiculous to dispute — as Prof. Somin did in response to my pointing this option out — that such a request by the Council would have a devastating effect on sitting federal judge, especially if made as part of a public reprimand.
Prof. Somin also argued that "Issuing a recommendation [to commence impeachment proceedings] that Congress has no obligation to follow is not that powerful a sanction." My response:
[A] complaint that survives the three-step screening process (Chief Judge, Council, Conference) is indeed very likely to get the serious attention of the House Judiciary Committee; indeed, in most instances when a complaint gets that far, the Conference will be passing along a documented, pre-digested case for impeachment that's ready for a committee vote without much further ado.
Whether Prof. Somin knew of (and simply avoided mentioning in all five of his original posts) the Council's statutory responsibility to consider impeachment or not, and the Council's refusal to make such a recommendation in this instance, my email exchange with Chronicle reporters Rice and Olsen confirms that they knew about it. Mr. Rice claimed this wasn't worth mentioning because the legal experts they'd consulted think that judges all protect each other and aren't likely to actually use these powers. To which my response is: Ask impeached former U.S. District Judge (now despicable Congressman) Alcee L. Hastings, whose impeachment by the House and conviction by the Senate took place on the basis of the Judicial Conference's recommendation even after Hastings had been acquitted of corruption by a hometown jury. Mr. Rice correctly noted that Justice Breyer has recommended further revisions to the existing system in a 2006 report prompted by allegations against U.S. District Judge Manuel Real from California. There, however, the House jumped the gun and started hearings before the Judicial Council had completed its work, but then shelved the entire matter in deference to the Council. If anything, all that ought to make it more imperative to report fully on how the current system has handled Kent's situation.
Ms. Olsen, in turn, asserted that this informational nugget was in one of their earlier drafts, but ended up, due to space limitations, on the editor's floor. I have no reason to doubt that, but one wonders about the editorial judgment — and perhaps the bias against judges nominated by a Republican president — of an editor who found room to instead advise Chronicle readers that Judge Kent "has decided cases as diverse as whether a local tavern owner could legally sell brews as 'Star Bocks' — despite a challenge from the soundalike Seattle coffee giant." Let's see: The Starbucks sentence, or one reading (per my suggestion): "Nineteen federal judges who've had access to the relevant sworn testimony concluded — without anyone writing a dissenting opinion — that he ought not be impeached, in a system in which Congress has expressly set things up for them to make that decision as an initial matter." Yeah, I'm goin' with the public's need to know about Starbucks!
(In subsequent emails, to her considerable credit, Ms. Olsen was very gracious: "Your points are good ones — I also think this would make a good op-ed — a more intellectual treatment of the options. If you're up for it, I'd encourage you to write it." I may give this a try, although it will frankly be hard for me to boil my indignation down to fit the Chronicle's op-ed length requirements.)
Personally, I'm disinclined to second-guess the Council's decision. My own experience both pressing and defending sexual harassment claims has convinced me that they're rarely clear-cut; that credibility determinations are crucial; and that political correctness can acquire a life of its own which, in turn, can ruin actual lives of both accusers and the accused. But I'll wrap up here (boldface mine) with the last comment I left on Prof. Somin's last post, in response to someone who argued: "This isn't just smoke, it's also obviously fire: we just haven't been able to see the fire."
I'm not contending there's "no fire." And the public reprimand will likely affect Judge Kent's standing and public image for the rest of his career, short or long, on or off the bench; I have no reason to think that unjust.
Nor do I dispute that Congress has the right to consider impeachment — notwithstanding the absence of a recommendation that they do so from the people whom Congress has entrusted, in the first instance, with the responsibility to investigate such complaints and to calibrate appropriate remedies and sanctions.
But I do think it's dishonest for anyone who understands (or who should, by virtue of his profession, understand) the nature of the process to fail to acknowledge that lack of a recommendation.
Feel free to say "I think the Council let him off too easy and Congress should impeach him." But be honest, and say simultaneously, "Of course, the Council saw the evidence, and I haven't, and the Council is who Congress designated to handle these complaints and to either make an impeachment recommendation or not, and it didn't."
And then people can who are still forming their own opinions can decide how much to give yours, or Prof. Somin's, versus the majority vote (without written dissent) of the 19 federal district and circuit judges on the Council (including the one for whom Prof. Somin clerked).
UPDATE (Tue Oct 23 @ 1:25am): Prof. Somin has belatedly replied to this post. His conclusion: "In sum, Beldar's post distorts 1) the applicable law on impeachment, 2) a judicial opinion, and 3) my posts. That's a pretty neat trifecta." As I said in a comment there, however, I'm content for now with what I've already written.
UPDATE (Tue Oct 23 @ 2:30pm): Um-kay, this has gnawed on me enough now that I will make some specific responses, more to vent my own annoyance rather than in the expectation that more than maybe 10 people will be continuing to follow this debate.
In claiming that I misrepresented the "applicable law on impeachment," Prof. Somin wrote:
The federal statute that Beldar claims imposed a "statutory obligation to consider whether to recommend the impeachment of judges like Judge Kent" does no such thing. It merely says that the Council "may, in its discretion" (emphasis added) refer the matter to the Judicial Conference of the United States for consideration of the impeachment option (the Conference can in turn refer the matter to Congress). The Fifth Circuit Judicial Council is not required to consider the impeachment option and we have no proof that it did so in this case.
But when a complaint has survived the initial screen and the Chief Judge has referred it to the Council, the statute does, however, oblige the Council to consider and investigate the complaint — repeatedly using the word "shall" (emphasis mine throughout) in sections 353(a) & (c). Afterwards, if the Council does not dismiss the complaint, then section 354(a) (1)(C) requires that the Council "shall take such action as is appropriate to assure the effective and expeditious administration of the business of the courts within the circuit." Under section 354(b)(2), if the Council has determined "that a judge appointed to hold office during good behavior may have engaged in conduct ... (A) which might constitute one or more grounds for impeachment under article II of the Constitution," then "the judicial council shall promptly certify such determination, together with any complaint and a record of any associated proceedings, to the Judicial Conference of the United States." And then under section 355(b)(1), '[i]f the Judicial Conference concurs in the determination of the judicial council, or makes its own determination, that consideration of impeachment may be warranted, it shall so certify and transmit the determination and the record of proceedings to the House of Representatives for whatever action the House of Representatives considers to be necessary."
Here, we know the Council fulfilled its statutory duty to consider the complaint; found it to have at least some merit; and ordered some remedies. We don't know whether the Council took a formal vote on recommending impeachment, nor even whether they specifically discussed that particular remedy. We don't know whether the complainant even suggested it, nor whether anyone on the Council brought it up sua sponte. But it seems extremely improbable to me that the Council authorized some remedies without at least considering the others specifically listed in the statute; and it seems absolutely impossible to me that everyone on the Council was unaware of the existence of the remedy. Of course both the Council and the Conference have discretion under the statute to decline to find that impeachment is warranted. But they may not both (a) conclude that there has been conduct which "might constitute one or more grounds for impeachment" and (b) yet still refuse to forward that recommendation. I think it's absolutely fanciful for Prof. Somin to suggest that while executing their duty under the statute, the Council members deliberately blinded themselves to the impeachment recommendation alternative in order to evade all those "shalls" that would have followed as a result.
In his latest post, Prof. Somin also writes:
In such difficult internal matters as the disciplining of other judges, a judicial conference [sic] is likely to act on a consensus model of decisionmaking. The reprimand issued to Kent (which is a very unusual step in itself) may have been the lowest common denominator that all nineteen Fifth Circuit Council judges could agree on.
... [T]he reprimand is a committee document that probably represents the lowest common denominator that 19 people of very different ideologies and temperaments could agree to.
I absolutely agree that reprimands are unusual, but I emphatically disagree with what I interpret as Prof. Somin's suggestion that a judicial counsel is likely to "act on a consensus model of decisionmaking" to the point that it not only rejects harsh alternatives favored by some members, but also suppresses those members' opinions. Getting 19 federal judges to agree on anything is like trying to herd cats. I suppose it's possible that here, as few as ten actually agreed on the remedies contained in Chief Judge Jones' order (and she may not even have been among that ten). But not a single judge went on record, either with or without a separate opinion, in dissent. It at least impliedly insults the members of this Judicial Council to suggest (as I think Prof. Somin effectively has done; again, that's my inference, not his direct words) that for reasons of collegiality or self-interest or otherwise, they all agreed to dispense "lowest common denominator" justice. And we have as a recent, prominent counter-example the Ninth Circuit Judicial Council's consideration of complaints against U.S. District Judge Manuel Real, which resulted in Judge Alex Kozinski issuing a written dissent urging harsher sanctions (but still not urging impeachment). Indeed, in addition to Judge Kozinski's "withering dissent" in that case (which I would also characterize as "brilliant" and "compelling"; Prof. Volokh called it "powerful"), "B. Lynn Winmill, an Idaho district court judge, issued a separate dissent, while David Ezra, a district judge from Hawaii, wrote a concurring and dissenting opinion." That Ninth Circuit Judicial Council was only about half the size of the Fifth Circuit Judicial Council that voted on Judge Kent's punishment — it had only five circuit judges and five district judges in addition to the Ninth Circuit's Chief Judge — and yet it produced four separate written opinions!
In claiming that I misrepresented a judicial opinion, Prof. Somin wrote:
Beldar further asserts that the Council could have suspended Judge Kent for "up to 15 years" of its own initiative. That extreme claim strikes me as in obvious tension with the Constitution's mandate that judges serve for life unless impeached and removed by Congress. If other judges could suspend a federal judge for as long as 15 years, they could effectively negate his or her lifetime appointment simply by issuing two such suspensions (or even just one, if the judge in question were old enough). It'll take a lot more than a partially vacated district court opinion (the only authority cited by Beldar to support this extreme proposition) to convince me that he is right on this point. Indeed, looking up that opinion, I found that it says nothing of the kind, but instead merely notes that some other judges believe that a 15 year suspension is beyond the power of a judicial conference for precisely the kinds of reasons that I noted above. The opinion states that:
Some jurists have expressed concern that suspension might become equivalent to removal if it extended for an inordinate amount of time, see e.g., Hastings I, 770 F.2d at 1108-09 (Edwards, J., concurring) (using fifteen years as the benchmark), but a one-year suspension does not implicate these concerns." McBryde v. Committee to Review Circuit Council Conduct and Disability Orders, 83 F. Supp. 2d 135, 165 & n.18 (D.D.C. 1999), aff'd in part & vacated in part for mootness, 264 F.3d 52 (D.C. Cir. 2001), cert. denied, 537 U.S. 821 (2002)) [Note: The McBryde opinion is slightly misleading when it cites Judge Edwards as stating that fifteen years is "the benchmark." Edwards' wrote that 15 years is beyond a judicial conference's power, but did NOT conclude that any suspension of less than 15 years is permissible].
Even the one year suspension that the district court decision approved may be constitutionally suspect, though I won't argue the issue here.
I've quoted that exactly as it appeared, but with due respect, Prof. Somin's quotation structure is a bit confusing. It appears to me that his block quote should have ended just before the word "McBryde," and that everything else (starting with the citation to the McBryde case) is his own writing.
The background to this, however, is that in several of his five previous posts, Prof. Somin had asserted his "tension" argument without ever citing any precedents. There is at least one published opinion directly rejecting his arguments — the McBryde case — and affirming a one-year suspension (albeit only from hearing new cases). Now, that holding does only have the authority of a federal district court because the one-year suspension was over, and that issue had become moot by the time the D.C. Circuit ruled on Judge McBryde's challenges. But that's exactly how I cited the case; in other words, I gave my readers not only the district court's ruling, but the information indicating the limits of that ruling's precedential effect. As to the fifteen years, Prof. Somin is simply wrong when he says that I "assert[ed] that the Council could have suspended Judge Kent for 'up to 15 years' of its own initiative." Instead, what I said was that this Council could have chosen a suspension longer than the four months they did specify, which is patently a correct description of the statute, and then I explicitly flagged the dicta: "At least a couple of cases suggest that suspensions of up to fifteen years might be permissible without creating 'quasi-impeachment' problems."
As between Prof. Somin and me, one of us wrote five posts without making any mention of a federal precedent directly on point on Prof. Somin's "tension" argument. The other of us found and correctly cited one federal precedent that rejects his "tension" argument, while being careful to note that the 15 year figure was a "suggestion," i.e., dicta, and not a holding. Maybe Prof. Somin's correct; maybe McBryde is wrong; maybe Chapter 16 suspensions are unconstitutional; maybe Congress was violating separation of powers doctrine when it delegated that power under the statute; maybe the 19 federal judges on the Judicial Council that suspended Judge Kent for four months were acting unconstitutionally too. I'll readily grant that it's a pretty interesting question, even if the "early returns" (a majority of both houses of Congress, the president, and every one of the federal judges who've so far either expressly or impliedly considered the issue) seem pretty lopsidedly against Prof. Somin. But in failing to cite McBryde at all, for whatever value it may have, in any of his first five posts, I hope Prof. Somin was just being sloppy, and not intellectually dishonest.
Finally, in claiming that I misrepresented his posts, Prof. Somin wrote:
Finally, Beldar mispresents [sic] me as claiming that impeachment is the only and "obvious remedy" for Kent's misconduct. As I explained time and time again in my posts, all I advocate is that "Congress should investigate the issue and give the possibility of impeachment serious consideration" (a direct quote from my first and most detailed post on the subject).
Near the beginning of my original post, I wrote that "[t]he consistent theme being promoted by all of these articles, op eds, and blog posts, is that the Council's punishment was inadequate and that Congress ought to consider impeaching Judge Kent." That seems to me to be exactly what Prof. Somin now says he's been saying, not what he now says I said he said. And note Prof. Somin's careful placement of quote marks in that first sentence I've quoted just above. In fact, I never accused Prof. Somin of saying that impeachment is the "only" remedy for Kent's misconduct, neither using that word nor others with the same gist. Instead, in the passage containing the "obvious remedy" phrase, I quoted the Chronicle article's quotation of Prof. Somin as saying that "the public record on Kent's 'long history of ethical problems' is significant enough that Congress should look into it." (Re-emphasizing what Prof. Somin now says he's been saying, not what he now says I said he said.) And I then said:
Similarly, Prof. Somin had written repeatedly to that same effect in his own blog posts (and in his comments in response to other readers than me), portraying the Council as effectively toothless, with impeachment being the obvious remedy that is justified, but one utterly beyond the Council's power to accomplish or address.
"Portray[al]" and "obviously" are flags to indicate my subjective characterizations, and they include my inferences as to Prof. Somin's motivations and intentions. To the extent that Prof. Somin has intended, in what's now seven separate posts, to only recommend that Congress investigate, and to the extent that he intended to express or even imply no opinion on impeachment itself, then my portrayal and my inference as to what's "obvious" would be inaccurate. Indeed, maybe you, gentle readers, read those six posts as being Prof. Somin urging that Congress investigate and consider impeachment for the purpose of clearing Judge Kent's name. But I think that's silly. He certainly hasn't admitted it in so many words, but the subjective inference which I draw instead (continuing with my politically incorrect "drumbeat" metaphor) is that Prof. Somin, for some reason, is out for Judge Kent's scalp — at least a public investigation, and at least the possibility of impeachment thereafter. If your own interpretation of Prof. Somin's intentions is more benign, such is your right, too.
Other weblog posts, if any, whose authors have linked to What the public needs to know in forming an opinion on whether U.S. District Judge Sam Kent ought to be impeached and sent a trackback ping are listed here:
» October 21 roundup from Overlawyered
Tracked on Oct 21, 2007 7:56:43 AM
(1) Dan S made the following comment | Oct 10, 2007 9:26:49 AM | Permalink
I read VC and so have been following this. You're absolutely right that no one has made clear what the process actually is and what the implications to date are.
Thanks for spelling it out. Do write that op ed. Your bolded paragraph in the comment above belongs in that op ed.
(2) anduril made the following comment | Oct 10, 2007 10:35:24 AM | Permalink
Like Dan S I read about this on VC and in the Chronicle and was initially swayed by what I read. But, as Dan wrote: "You're absolutely right that no one has made clear what the process actually is and what the implications to date are." Like Dan, I encourage you to write that op-ed. I also applaud you for taking the time to joust with Professor Somin at VC, an experience that I'm sure was very frustrating for you. I'm afraid your experience there was more typical than it should be, considering the responsible positions the bloggers at VC hold.
One small negative comment. I was distressed to read, in an otherwise excellently reasoned and presented argument: "Apart from Casey's rants, it seemed to me like there was an important aspect to these proceedings that was being ignored in the Chronicle's stories and Prof. Somin's posts." Call me fastidious, but the use of "like" rather than that was, to this admiring reader, jarring.
Anduril, thanks for the comment and usage suggestion, with which I entirely agree (and I've edited the text above to incorporate).
My thanks, too, Beldar. I don't read VC and appreciate you doing it for me. And I like Judge Kent's sense of humor.
(5) stan made the following comment | Oct 10, 2007 2:07:53 PM | Permalink
I had a very unsatisfactory e-mail exchange with Prof Somin regarding his ridiculous assertion that the Left's reaction to Anita Hill's allegations against Clarence Thomas were the same as the Right's reaction to Paula Jones' allegations against Bill Clinton.
I wrote that the evidence was very different in the cases as were the reputations of the two men.
He wrote me back saying that Clinton had never been rumored to have been involved in sexual harassment or anything close.
I'm sure Jaunita Brodderick woould be shocked to hear that. And all the other women that David Schippers has noted in his book.
The professor did not respond.
I suppose his mind was made up and he wasn't interested in facts to the contrary.
(6) anduril made the following comment | Oct 10, 2007 8:23:54 PM | Permalink
I went over to VC and read up on the Kent controversy. If I'm to believe what I read, then Kent sounds like a fairly obnoxious specimen. Assuming the truth of what I've read, I can certainly sympathize with the view that the Federal bench can do without his services. On the other hand, Somin's failure to make known the full scope of the Council's powers was either dishonest or based on shoddy research--and neither alternative reflects well on him as a professor of law. His offhanded dismissal of the Council is certainly unconvincing. Further, Somin's failure to respond to Beldar's critique suggests that Somin 1) may have an agenda of some sort, 2) knows that he was found out but 3) lacks the humility to admit he made a mistake in pursuing this issue in the manner he chose.
I don't want to over generalize, but this type of posting seems too common with at least some of the bloggers at VC. Fortunately, professors of law aren't subject to impeachment for foolish blogging. However, even allowing for the sometimes informal format of internet blogging, they should have more self respect and sense of responsibility (given their positions as professors) than to append their names to either shoddy or dishonest posts.
(7) craig mclaughlin made the following comment | Oct 10, 2007 9:03:25 PM | Permalink
"I don't want to over generalize, but this type of posting seems too common with at least some of the bloggers at VC. Fortunately, professors of law aren't subject to impeachment for foolish blogging."
Pretty much my take too. Which is why I don't go over there much anymore and when I do I usually read Eugene's posts and skim (or skip)the rest.
(8) Gregory Koster made the following comment | Oct 10, 2007 10:44:53 PM | Permalink
Dear Mr. Dyer: I’m having some trouble with this latest post. Everyone can now roll eyes, open the aspirin bottle, and let’s start with this statement of yours:
But thus it was, for example, that I knew beyond any doubt that Chronicle columnist Rick Casey was committing a libel when he falsely claimed in his October 3rd column that the Council's decision conclusively established Judge Kent's guilt under a state criminal statute forbidding sexual harassment by a public official "acting under color of his office."
I read the linked column three times and could not find that the column, “...conclusively established Judge Kent’s guilt under a state criminal statute...” The closest I could find was this”
In Texas a public official commits "official oppression ... if acting under color of his office ... he intentionally subjects another to sexual harassment."
That offense, which is a Class A misdemeanor punished by as much as a year in jail and a $4,000 fine, is most commonly prosecuted in cases of police officers acting inappropriately with women stopped for traffic offenses or other violations.
But if a federal judge is guilty of sexual harassment — and a panel of 19 federal judges seems to have decided this man is — then shouldn't he face the same punishment?
Galveston County DA Kurt Sistrunk should look into this. If Judge Kent's behavior was similar to that of Judge Canales, he should be prosecuted.
I don’t see that as “an assertion of conclusive guilt,” but a call for an investigation. If this is not the passage that led you to think the column was claiming “conclusive establishment” I’d be obliged if you’d quote it too me. It could be that I am being blinder than usual in not seeing it. It could also be that you are overstating a point.
The next problem is your exchanges with Professor Somin. These were hard for me to read: I wanted both of you to lose. Plainly, Professor Somin was being disingenuous in even blogging about the issue. If he takes his nondisclosure agreement seriously, he should not have blogged about the issue at all. He signed an agreement saying he would keep silent on confidential matters, and the subject matter of his posts is close enough to his agreement to raise questions. Instead of keeping still, he engaged in shameless winking and nudging. I admit, as a Three Stooges fan, his posts are funny. They are also unworthy of dignifying as honest efforts in debate.
My objection to your side is this: you assert that the 19 judges of the Fifth Circuit’s Council investigated Kent’s case thoroughly, and did not send a suggestion to the House that an impeachment investigation was in order. Ergo, there’s “not much” there. I don’t share your faith in Circuit Councils. The Ninth Circuit one that investigated Manuel Real did a less than impressive job, as the dissent by Judge Kozynski showed. I see no reason to grant any Judicial Council any respect without evidence. Such evidence would be a public record. What can you tell of Judge Kent’s transgressions from the public record the Council put forth? The important part, the findings of fact and law, are sealed---by law. How seriously are laymen to take this blatant coverup? When laymen are tried, our findings of fact and law are part of the public record as you have pointed out in the case of that great comedian, Larry Craig. Let Sam join Larry on the public stage, and let the findings of fact and law be open to all. Then we can decide how good a job the Council did. To be sure, as the Council pointed out with pious smirks, 28 USC 360(a) forbids the record from being made public. That could be remedied by Congress. I think a request from the various Councils to that effect would carry great weight with Congress. Think they’ll make such a request, in order that public confidence in the federal judiciary will be bolstered? I don’t either, and I hope everyone will wipe the tears from their faces and stop all the laughing. This IS a serious post...
You mentioned that the Council had other punishments they could have dished out, e.g. asking Sam to quit. You say such a request would be “devastating.” You want devastating? How about Bill Clinton, PrezNighStays, impeached for lying under oath because he lied about fooling around with an intern and got caught? Compared to what has happened to Sam so far, this is a hydrogen bomb detonating. I don’t doubt that it was “devastating” to Billyboy. But he stayed on as Prez for two more years, and ended his administration selling pardons. Billyboy does not have a personality that is easily “devastated,” and I don’t think Sam does either. His antics have gone on for years. It could be argued that no really really serious official notice has been taken of his antics, so they couldn’t be that bad. But that is just a circular argument, run round at great speed to make everyone dizzy and confuse the issue.
But there’s an even greater reason that Sam will not be asked to quit: what happens if they ask, and he refuses? Think of the uncomfortable situation this creates for all the judges who have to work with him. They’ve told him that they have no confidence in him---and he’s still there. More, any case assigned to him will be immediately subject to challenge: “The Council has no confidence in him, I don’t either, and I want a real judge, not this clown.” No, the Council is not about to ask Sam to quit. That’s a doomsday weapon that will blow up a Circuit along with the intended victim.
You want creative punishments? How about the Council forbidding Sam to use the honorific “The Honorable” for say, a year? That would sting, yet would not impede his ability to conduct business.
The real problem is the lack of accountability. There’s two systems of justice at work here, and the one for judges is wretched. What sort of confidence do sealed judgments inspire in the Fifth Circuit? I’d have more confidence if I knew he was facing the sort of crusty curmudgeonly fellow you mentioned in your 25 May post on William Smith, the imbecile bankruptcy lawyer, viz:
I don't know how this particular episode will turn out, but Mr. Smith ought to be glad I'm not on an Illinois bar committee reviewing his license. I'm a traditionalist and a curmudgeon, but just based upon this transcript excerpt, I'd likely start off thinking along the lines of a ninety-day license suspension, then maybe dialing that up or down depending on the remaining circumstances (and in particular, the degree of contrition expressed). I'd also be inclined to specify some onerous and creative public service requirements for Mr. Smith's path back to practice
Again, there’s no evidence that the Council had any such curmudgeon grilling Sam. So I think Mr. Casey of the CHRONICLE is quite right to suggest that the local DA investigate prosecuting Sam for sexual harassment. If all the incidents happened in the federal courthouse, there could be a jurisdictional problem. But if not, get going. The system of justice that is good enough for Larry Craig is good enough for Sam Kent. You mentioned that sexual harassment cases can take on a life of their own, and destroy accuser and accused alike. True. But if Larry Craig had chosen to fight the allegations the Minneapolice made against him, odds are good that he would have won. Why didn’t he do so? Because he would have been ruined politically had he done so. If I taxed you with this undoubted truth about Larry Craig’s case, I think you would have shrugged and said with real regret, that’s the way the adversarial process and open trials work sometimes. All right, bring on the adversarial process and open trials for Sam. Such processes are good enough for the rest of us. Sam has had cases reassigned away from his best friend in 2001. He has been taken off a case because of hostility to one side in 2002. Still he bangs along, confident in his ability to ram any iceberg and sink it. We don’t know what the Council did in its investigation, or even what real punishment was administered besides the public rebukes that have not deterred him up to now. Defending the Council by invoking its reputation is not enough. Too many conflicts of interest---all the Council judges will likely have to work with Sam in the future. No, bring on Congressional oversight and possible prosecution by Texas, under the new judicial policy of WHAM SAM.
Casey's statement that "a panel of 19 federal judges seems to have decided this man is" "guilty of sexual harassment" pursuant to a state criminal statute is an unambiguous and false statement of fact.
You seem to have ignored my statement in my post that "The Council's decision also doesn't foreclose independent civil or criminal proceedings arising out of the same conduct." The Council's job wasn't to conduct a criminal investigation, nor to adjudicate civil liability, but to consider a complaint of judicial misconduct a breach of the Canons of the Code of Conduct for United States Judges and to determine whether Judge Kent had done anything "prejudicial to the effective and expeditious administration of the business of the courts and the administration of justice." There are good reasons for those inquiries to be handled with discretion rather than in a circus-like atmosphere. But if the complaintant also makes a criminal complaint or files a civil suit, there are different interests involved, and different rules regarding what information may become public.
There were no dissents from this Council's ruling on Judge Kent, and there are many differences between the Ninth and Fifth Circuits. The "pious smirks" are entirely figments of your imagination. I'm sorry your opinion of the ethics and integrity of federal judges as a class is so low; although I am often critical of some federal judges for their willingness to make social policy and (in the apt short-hand phrase) legislate from the bench, I emphatically don't share that opinion as to their ethics and integrity as a class. If you're eager to presume corruption and conspiracies within the federal judiciary, the world you live in must be a very ugly, bleak one.
As I said in my post, you (and other readers) are entitled to insist that you know better than the Council as to whether impeachment is warranted, or that the Council can't be trusted on that determination. My criticism of the Chronicle and Prof. Somin is that they concealed the facts that the Council has been given a role by Congress in making that determination, and reached a considered judgment that it's not warranted. Nothing in your very long and far-ranging comment changes my views on that.
I've spent about an hour wrestling with the 188-page report of the "Breyer Committee" from 2006. Skeptics about the Fifth Circuit Judicial Council's treatment of the complaint against Judge Kent have referred to that report as criticizing the existing system through which the federal judiciary effectively monitors and disciplines itself, and they've particularly referenced the report's critique of the way the Ninth Circuit Judicial Council handled complaints against U.S. District Judge Manuel Real. Judge Real was accused of becoming personally involved in the bankruptcy proceedings of an attractive young woman who was then on probation pursuant to a sentence he'd rendered in a criminal case against her. (Judge Real isn't identified by name, but it's obviously the "high profile" case identified as "C-7" and discussed at numbered pages 80-85 of the report, pp. 85-90 of the .pdf file.)
The specific criticism of how the complaints against Judge Real were handled, however, had to do with Ninth Circuit Chief Judge Mary Schroeder's refusal to appoint a special investigative committee to make determinations of disputed facts. Instead, she'd basically taken matters into her own hands, calling up Judge Real and asking him, for example, about the nature of his relationship with the young woman and the specific details of what he was alleged to have done on her behalf. By sharp contrast to the situation critiqued by the Breyer Committee with regard to complaints against Judge Real, Fifth Circuit Chief Judge Edith Jones did appoint a committee, and it did investigate and take sworn testimony, and it did solicit the involvement of counsel for the complainant and for Judge Kent.
I've also read the portions of the report summarizing the Breyer Committee's other recommendations, and none of them seem to me to contain implied criticisms of how the Fifth Circuit Judicial Council handled the Kent complaint. The report states that "Most of the dispositions labeled 'problematic' were problematic for procedural reasons, in particular the chief judge’s failure to undertake an adequate inquiry into the complaint before dismissing it." That didn't happen with Kent. Rather, the Fifth Circuit Judicial Council seems to have already taken the lessons of the Breyer Committee to heart, as best I can tell.
(11) Gregory Koster made the following comment | Oct 11, 2007 4:38:04 AM | Permalink
Dear Mr. Dyer: Well, it IS raining here in Olympia, Washington this evening, which to many people would make a bleak, ugly world. I’ve always liked rain, so I guess something else must account for b, u, world I live in... Mr. Casey’s statement has the word “seems” which I freely concede is a weasel word, but which also makes it true: Mr. Casey is under the impression that the council found Sam guilty of sexual harassment but is not quite sure. Hence “seems” and he is off the hook. Sloppy? Yes, very. But not false. Just misleading, though I couldn’t tell you if he meant to mislead himself or his readers.
Next, this paragraph:
“You seem to have ignored my statement in my post that "The Council's decision also doesn't foreclose independent civil or criminal proceedings arising out of the same conduct." The Council's job wasn't to conduct a criminal investigation, nor to adjudicate civil liability, but to consider a complaint of judicial misconduct — a breach of the Canons of the Code of Conduct for United States Judges — and to determine whether Judge Kent had done anything "prejudicial to the effective and expeditious administration of the business of the courts and the administration of justice." There are good reasons for those inquiries to be handled with discretion rather than in a circus-like atmosphere.”
I don’t think it is realistic. Recall in the Real case, the House Judiciary Committee began hearings. Result: much squawking that the hearings were premature because the investigative committee of the Ninth Circuit (a committee that was suppressed at first by the Chief Judge, who, we must presume is a Judge of Integrity ®, and had Good Reasons to suppress the committee, at least until her Integrity® flipped 180 degrees and she appointed the committee after all)hadn’t finished its work. So the hearings petered out. The committee reported. A majority signed off on its findings, slapping Judge Real on the wrist. Judge Kozinski dissented, and it is his dissent that enables the public to see what happened. To be sure, a dissent by definition, did not win enough votes to become ruling case law. But the picture it provides was much more persuasive to me than the majority findings. What did Congress do after the committee reported? It snored. No need to do anything, the Ninth Circuit Council has reported that not much is there. Split decision, but who reads dissents anyway? So your assertion that civil and criminal proceedings are possible is true, but not at all likely. Unless someone from outside pushes, the way to bet is: no investigation. Criminal case? How many US Attorneys, as ambitious and honest a crowd as exists on the planet are going to jump at the chance to investigate judicial misconduct, the more so when the Fifth Circuit Council has ceremoniously slapped Sam on the wrist, and said precious little about the case? Civil case? Sam will roar and bluster at first, hoping to overawe the complainants, and then pay up, extracting a secrecy agreement as part of the price. Are these speculations cynical, a product of a bleak ugly world (it’s still raining outside)? Yes. Are they a likely possibility? I’ll let you decide.
We must disagree on the question of the pious smirk of Chief Judge Jones’s statement at the end of the order: “The Special Investigatory Committee’s report...are confidential under 28 USC 360(a) and shall not be disclosed.” That is a smirk, and the smirk is the citation of the law, plainly put in to say “hey, don’t blame the Council; CONGRESS made us keep these records secret.” But, admittedly not knowing the legislative history of this code section, was it enacted over the protests of the judiciary? Or the judiciary make an urgent claim of the need for confidentiality? My money goes down on the judiciary howling for secrecy. I cite the nondisclosure requirements that clerks are required to sign to support my position. Judge Jones could ask Congress to pass a new law repealing this requirement, and even making it retroactive to Sam’s case. Will she do it? There aren’t enough zeroes in my computer to the right of the decimal point to calculate that probability. I say (and I think you agree with me on this particular matter) that sunlight is the best disinfectant on Congressional earmarks. It is also the best disinfectant for judicial misconduct. (It may even brighten the bleak, ugly world I inhabit!)Has Sam been guilty of misconduct? We won’t know until we see the evidence. At present, the only real hope I have of that is a congressional investigation.
Ask yourself this: what would have happened if that famous comedian Larry Craig, had a 28 USC 360(a) provision in his place? No one would ever have heard of his idiotic behavior, he would have paid the fine, and that would have been the end of it. If this law is good enough for Larry, why not Sam? I’m not persuaded by your argument that the Council is investigating a possible violation of Judicial Canons, not a violation of law. When the testimony is sworn, and the results secret, it is walking and quacking, and it is a duck.
As to my opinions of the levels of integrity in the federal judiciary, I don’t think you are saying that all the good federal judges excuse even one bad judge. Judge Kozinski’s dissent in the Real case has some mighty convincing reasons why judges disciplining each other is a daunting task. I also think of Edmund Burke’s remark that all that is necessary for the triumph of evil is for good men to do nothing. That is what the Council has done. What will happen if cynical Gregory is proven wrong and the US Attorney for Sam’s District starts investigating? If he finds evidence and gets a grand jury to indict, who could try the case? The Council, that is the Fifth Circuit, is on record as saying eh, not that much here. How could it possibly try any case from the US Attorney’s office? Worse, if a conviction results, the council will seem to have covered up. The bleak ugly world will close in on me, and I will have to defend myself by cynically laughing loud and raucously, loudly enough that you will sic Weiss on me in exasperation, so you aren’t kept up half the night and can get a good night’s rest to face the judges in the morning. I should think the judges would want the evidence released. In Sam’s case, a release of the evidence would I think, show an out of control judge who deserves to have the judicial booklet thrown at him, not a conspiracy of judges out to get him.
Longwinded, I must plead guilty to, and urge you to get out the heaviest book to hurl at me. I will close by apologizing. I have a knack for stepping on your toes, which I don’t mean to do. I think it is that I am under no professional obligation to any clients to keep on good terms with judges of any stripe. That and the dangerous amount of the little knowledge I have about the judiciary make my feet dangerous. Let me exit with H.L Mencken’s characterization of Robert LaFollette in the 1924 presidential race:
“LaFollette is tremendous when he is right, and even more tremendous when he is wrong.”
You are never more tremendous than when you discuss the conduct of federal judges.
(12) Mike Myers made the following comment | Oct 14, 2007 7:49:47 PM | Permalink
From personal experience, I can say that Sam Kent can be heavy handed and overbearing. Eight or nine years ago Texas co-counsel and I (I'm from California) were defending a defamation case (a dispute between two medium level scientists who got into a spat that shouldn't have been more than a tempest in a teacup).
The plaintiff had sued in state court in Texas seeking major damages against both the other scientist and her employer, a major oil company headquartered in California. We got the case removed to Federal court in Galveston on diversity grounds.
Came the scheduled date for trial and Judge Kent was "busy". Things get that way in a one judge courthouse (I don't know if Galveston has more than one Federal judge these days). Sam wanted to assign the case to a magistrate for trial--which required the consent of both parties. He made it plain to defense counsel that, if we objected to assignment to a magistrate, "I'll try the case and you won't like the result." That's a verbatim qoute.
We consented to trial before a magistrate, and when the second trial date was further delayed, went into mediation and settlement.
Judges in one judge courthouses often get an inflated view of their role in life.
Mr. Myers, if your side chose to make a "tempest in a teacup" into, literally, a federal case (presumably because your local counsel told you you'd be worse off in state court in you didn't exercise your removal options), and then you insisted on that case taking the personal attention of the only federal judge sitting in that city, you might have anticipated some sort of annoyance. Obviously you had not exhausted settlement prospects and the case was capable of being settled without trial (since that's what happened). The veiled threat was improper but not necessarily sincere, a crude method of dealing with a large docket that you seemed insistent upon complicating. I've encountered this and much worse from state and federal judges throughout my career, and I'm not commending it, but it's not especially remarkable, and certainly not impeachable. If your local counsel failed to warn you that (for better or worse) Judge Kent was well known for such things before you removed the case to federal court, you were ill-served.
(14) Mike Myers made the following comment | Oct 15, 2007 10:37:20 AM | Permalink
Mr. Beldar you raise an interesting point that has less to do with the impeachability or not of Sam Kent than with the question of access to the courthouse for civil defendants. In the case I referred to the plaintiff worked for an oil company in Kentucky; the individual defendant worked for an oil company in California. The alleged defamation occurred in a series of written communications among committee members of a professional society, some of whom were in Texas. The plaintiff for reasons best known to his counsel (most likely the idea that there was a pot of plaintiff's gold in South Texas counties) filed in Brazoria County. We removed to Federal Court in less than a heartbeat and it was good advice then and would be good advice now--and I suspect that, faced with the same situation, you would have given the same local counsel advice.
As for settlement possibilities, when you're dealing with a plaintiff who exhibits some bipolar personality characteristics, things can get tough. Suffice to say that the amount paid in settlement was less than 3% of the amount demanded by plaintiff at the time set for trial before Judge Kent. Getting there involved a second botched trial date (the parties were ready but the magistrate rescheduled the trial because of a serious family health issue).
I'm retired now, but spent most of my legal career representing large corporate defendants--and it's fair to say that access to the courthouse for civil defendants has been an issue for a long time now. Any idiot with a typewriter and the wherewithal for a filing fee can file a complaint (and apparently a lot of them do).
The absence of access to the courthouse means that a lot of civil defendants pay out settlement amounts simply because their defense of the cases can not/will not be heard.
(15) NCC made the following comment | Oct 21, 2007 11:16:15 AM | Permalink
It wouldn't surprise me if Somin were dead wrong about Kent.
You should see what he did to Star Trek a few weeks ago.
Editing note: Originally, a sentence above in this post read:
There have also been a series of six posts on The Volokh Conspiracy (on Sep. 28, Sep. 30, Sep. 30, Oct. 2, Oct. 3, and Oct. 8) by Assistant Law Prof. Ilya Somin of George Mason University's School of Law, who in 2001-2002 clerked for Fifth Circuit Judge Jerry E. Smith of Houston (one of the 19 District and Circuit Judges on the Council).
That was wrong; only the last five in that string were from Prof. Somin, the first having been by Prof. Volokh. I've changed the sentence quoted above (and one immediately after it) to reflect this correction; and in two other places in the original post, and three more in my most recent update, I've made corresponding corrections (changing "six" to "five" on two occurrences, and "seven" to "six" in one).
(17) DRJ made the following comment | Oct 25, 2007 5:48:56 PM | Permalink
Judge Kent has been moved to Houston, leaving Galveston without a federal judge for the first time in "decades."
Link here: http://www.chron.com/disp/story.mpl/front/5246534.html
I think Judge Kent just got sent to his room.
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