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.

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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.

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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.

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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.

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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.)

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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).

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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.

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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.