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The Ethical Cloud Over Judge Samuel B. Kent:

I would like to comment briefly on the controversy surrounding Judge Samuel B. Kent, the Galveston, Texas federal district judge who was recently disciplined by the Fifth Circuit Court of Appeals for sexual harrassment. Since I clerked for Judge Jerry E. Smith of the Fifth Circuit in 2001-2002, it is important to emphasize that this post is based solely on publicly available information and not on any privileged information that I may have had access to during my clerkship. All factual claims in the post are based on published sources that I have linked to. Also, I should note that the post reflects only my own opinions and not those of Judge Smith or other Fifth Circuit judges.

That said, interested readers should know that this is far from the first time that serious issues have been raised regarding Judge Kent's judicial ethics. Indeed, it is no secret that Kent is a notorious figure in the Texas legal community and perhaps even nationally.

Here are a few relevant aspects of Judge Kent's record:

In 2001, the Chief Judge of Southern District of Texas reassigned 85 cases away from Judge Kent, because the cases were being handled by Kent's best friend Richard Melancon and there were allegations that Kent was engaging in favoritism on his friend's behalf. In a 2002 decision, a Fifth Circuit panel removed Judge Kent from a case because he had demonstrated open bias against and "hostility" towards one of the parties. Although it is not terribly unusual for litigants to assert that a judge is biased against them, it is relatively rare for appellate courts to accept such claims and remove the judge from the case.

In this 2001 Green Bag article, Northwestern University Law Professor Steven Lubet documented Kent's notorious courtroom "bullying," which he condemns as not only obnoxious but unethical.

For further (though still incomplete) details of Judge Kent's record and the sexual harrassment charges against him, see this recent Houston Chronicle article.

I'm not sure whether Judge Kent's abuses have reached a point where Congress should impeach him. Much depends on how serious the underlying facts of the sexual harrassment incident are. So far, both the Fifth Circuit (whose personnel are bound by confidentiality rules) and the accuser have maintained a public silence about the details of the case. For obvious separation of powers reasons, the impeachment power should be used only in extreme cases. However, I do think that matters have reached a point where Congress should investigate the issue and give the possibility of impeachment serious consideration.

UPDATE: A few commenters claim that I should reveal any confidential information I might know about the Kent case even in spite of the court rules that forbid such revelations. I don't agree. Many ex-employees from both government agencies and private firms are restricted from speaking about some aspects of their work by confidentiality rules. Such rules can be overriden by a subpoena from a court or (sometimes) a congressional investigative committee. In this case, both congressional investigators and prosecutors who might wish to look into Judge Kent's conduct are likely have a fairly good understanding of how the judiciary works, and therefore could identify court employees whose testimony might be useful.

But it would be both illegal and unjustifiable for the ex-employees to violate confidentiality rules merely because they personally believe that revealing the information in question is desirable. That would undermine the public interest purposes served by the rules and would allow individual ex-officials to take the law into their own hands. If you think (as I, to some extent, do) that law clerk confidentiality rules should be less strict than they are, the proper solution is to get Congress or the Judicial Conference of the United States to change them.

As for suggestions that I am somehow covering up for Kent, if I wanted to do that, I would not have written a post likely to attract additional public attention to his misconduct.

Daryl Herbert (www):
You haven't actually denied having any "privileged" information.

So, tell us, hasn't J. Kent "waived" any applicable privileges?

Or does the court have special magical powers to invent confidentiality rules that don't apply in any other field? No other business could demand confidentiality from ex-employees as to a boss who was preying on his employees. Harassment is a crime, Ilya.

Why are you protecting this criminal? Don't tell me you really believe that the 5th Circuit's rules would be enforceable. They're a bunch of nonsense. When you act like that's good law, you dishonor the real law. You're internalizing Omerta--mafia rules. You're supposed to be teaching the law and setting an example.

Do the principled thing--dish!
9.30.2007 7:20am
not a judge alas (mail):
That was a very good article by Prof. Lubet in Green Bag. Thanks for linking to it.
I remember hearing about the decision he refers to (Bradshaw), and thinking how clever the judge was and how inept the lawyers were. But Lubet is right, from a broader perspective Judge Kent's decision really does amount to bullying.
I hope that article is/was read by many judges across the country.
Although this might go beyond the subject of this thread, it's interesting to me that people who behave like bullies in their professional lives are often the ones who engage in (or are at least accused of) sexual harrassment. I'm sure there's a connection, since both bullying and harrassment stem from the same narcissistic behavior.
9.30.2007 8:49am
Horatio (mail):
What's the point of impeachment - He'll pull an Alcee Hastings and come back as a US Congressman.

It's tIme to abolish life terms for Federal judges with a proviso that once out of office they can't run for another Federal post.

Oh wait - then they'll become trial attorneys and sue Steve Jobs and Apple for not letting consumers make profits on the resale of their iPhone
9.30.2007 9:38am
Mr. Y:
Re: Daryl Herbert's comments . . .

I'm not defending Judge Kent (his reputation speaks for itself, and like many other SDTx attorneys I'm enjoying more than a bit of schardenfreude over this), but the Fifth Circuit is hardly "inventing" the confidentiality rules here. Try reading the applicable statute (28 USC 360). I don't think the confidentiality rules as written are good public policy, but it's not the court's job to just ignore such "unwise" statutes.

Don't worry, the details will come out soon enough. The Complaintant has the right to make her allegations public if she wants, and the fact that she has apparently hired Rusty Hardin (who no one will ever accuse of being media shy) leads me to suspect that she's waiting for the optimal time to do so.
9.30.2007 10:45am
TerrencePhilip:
Mr. Y, do you (or any other visitors) have any experience appearing before Judge Kent?

A friend of mine had a case before him; nothing crazy happened, he said he just walked a very straight line and got it settled as quick as he could.
9.30.2007 10:53am
ReaderY:
The 5th Circuit appeals decision did say the judge was "hostile", but did not say he was irrationally so -- the judge thought that the defendants' latest transfer petition was not merely wrong but represented dilatory tactics designed to manipulate the federal system by repeatedly changing fora in an effort to waste time and resources.

The 5th Circuit obviously thought this a wrong call, and they thought that a judge who had made this call and expressed it in strong language might not be thought completely impartial after being reversed, but even here there wasn't even a hint, let alone a claim, that the judge was thought actually impartial or that his tone sprung from anything other than his perception of the parties' behavior in court.

Impeachment is for high crimes and misdemeanors -- criminal acts, nothing less. Not for making wrong calls, not for being strong-willed, not for conduct for which Congress has provided, rightly or wrongly, only civil rights and remedies.
9.30.2007 11:54am
ReaderY:
Sorry, that's "actually partial".
9.30.2007 11:56am
Kevin P. (mail):
Can we also add Jack Weinstein to the impeachment list for his blatant support of anti-gun litigation?
9.30.2007 11:58am
ReaderY:
If the conduct involved was criminal in nature, let the court employee swear out a criminal complaint.
9.30.2007 11:58am
ReaderY:
If we're going to impeach people because we don't like the way they rule or run their courtrooms, why not impeach Justice Kennedy for his blatant waffling? Or Justice Roberts, since everyone knows (the New York Times tells me so) that he and his decisions are just plain mean. Or how about impeaching Justice Thomas for being an Uncle Tom?
9.30.2007 12:01pm
Elliot Reed:
Why are you protecting this criminal? Don't tell me you really believe that the 5th Circuit's rules would be enforceable. They're a bunch of nonsense. When you act like that's good law, you dishonor the real law. You're internalizing Omerta--mafia rules. You're supposed to be teaching the law and setting an example.

Do the principled thing--dish!
I don't know whether the Fifth Circuit's rules would be enforceable under the statute, but there has got to be a serious First Amendment issue in requiring ex-employees to cover up criminal misconduct by refusing to say anything about it. Sadly, there can be no doubt that the judges deciding this issue would find some way to rationalize hiding judicial misconduct from the public as a compelling government interest.
9.30.2007 12:05pm
Elliot Reed:
Impeachment is for high crimes and misdemeanors -- criminal acts, nothing less.
Judges can be impeached if they do not exhibit "good Behavior". See U.S. Const. Art. III Sec. 1.
9.30.2007 12:16pm
Ilya Somin:
You haven't actually denied having any "privileged" information.

So, tell us, hasn't J. Kent "waived" any applicable privileges?

Or does the court have special magical powers to invent confidentiality rules that don't apply in any other field? No other business could demand confidentiality from ex-employees as to a boss who was preying on his employees. Harassment is a crime, Ilya.


First, the harrassment happened long after my tenure as a clerk. Therefore, any confidential information I might -assuming I had it - have would have had to relate to other matters. Second, lots of businesses and government agencies have confidentiality rules for ex-employees that the latter are not legally permitted to breach. A court might be able to compel the ex-employees to testify. But the ex-employees do not get to decide to breach confidentiality of their own accord.
9.30.2007 12:35pm
Ilya Somin:
If we're going to impeach people because we don't like the way they rule or run their courtrooms, why not impeach Justice Kennedy for his blatant waffling?

Nowhere did I say or even imply that judges can be impeached merely "because we don't like the way they rule or run their courtrooms." THere is a big difference between that and flagrant breaches of judicial ethics combined with possible criminal behavior.
9.30.2007 12:37pm
BruceM (mail) (www):
Kent's long been known as a judge who writes really nasty judicial opinion (example) about lawyers before his court. While amusing, it's very unprofessional.
9.30.2007 12:51pm
Dave N (mail):
I think this case should be referred to the House Judiciary Committee--and let them decide whether it is worthy of impeachment.

Judge Walter Nixon was impeached and removed from office for lying in front of a grand jury--even though no criminal conviction came of it. Judge Alcee Hastings was acquitted when prosecuted, but was still impeached and removed.

Additionally, Robert Packwood resigned from the U.S. Senate when it became likely he would be expelled for sexual harrassment and other misconduct.

That said, the House has an obligation to look into Judge Kent's behavior. If it is egregious enough, he should be both impeached and removed from office.
9.30.2007 2:08pm
Pete Zaitcev:
Among the wider public Judge Kent is mostly known for humorous decrees, such as the reassignment of a frivolous lawsuit against Bolivia. I wonder if his sense of humour went unappreciated in this case.
9.30.2007 2:09pm
Moneyrunner43 (www):
That was hilarious. I would like to invoke the "Clinton Rule" in which the judge, like our boy Bill, gets one free grope.
9.30.2007 2:11pm
Calvin TerBeek (mail):
If we're going to impeach people because we don't like the way they rule or run their courtrooms, why not impeach Justice Kennedy for his blatant waffling? Or Justice Roberts, since everyone knows (the New York Times tells me so) that he and his decisions are just plain mean. Or how about impeaching Justice Thomas for being an Uncle Tom?

Uh, reductio ad absurdum . . . Kent's collective behavior is certainly is not "good behavior" (however defined).
9.30.2007 2:28pm
Nola:
Yes, a former Fifth Circuit clerk would have a little extra information. Like Ilya, I am one.

What Ilya knows probably rhymes very well with the public information that he has pointed to in his post. However, I can safely say that Ilya is not sitting on evidence of criminal wrongdoing that could do Kent in. I can understand that Ilya does not want to have any of his statements imputed to people he worked with back when he was in the court system.

Some commenters have pointed to Kent's snide remarks in his opinions. The problems with Kent are more with substance than style. Any opinion emanating from his chambers should be viewed with double skepticism.
9.30.2007 2:55pm
MikeC&F (mail):
Yes, a former Fifth Circuit clerk would have a little extra information. Like Ilya, I am one.

So, "like Ilya," you're going to keep information that an informed public has a right to know in order to avoid sticking your neck out? That's fine. But in light of this, any of Professor Somin's posts that posit ideas that are supposedly in the public interest should be viewed with skepticism.

When people who have information involving a public official doing very bad things avoid disclosing that information, they are just as guilty as the rotten public official they are protecting. Silence is protection. A code of silence is all that protects most wrongdoers.

It is, of course, Somin's right (and your right) to remain silent. It is also our right as informed readers to recognize that such people aren't to be taken seriously in other contexts. After all, why should we ever believe any supposed efforts at furthering the public interest are sincere?
9.30.2007 3:31pm
SenatorX (mail):
"A court might be able to compel the ex-employees to testify. But the ex-employees do not get to decide to breach confidentiality of their own accord."

Ahh I watched "The Insider" for the first time last night and this was part of it.
9.30.2007 3:54pm
David M. Nieporent (www):
Mike, why does an "informed public" have a "right to know"? Kent isn't a candidate. The public doesn't get to vote on whether to remove him from office.

Now, if someone has firsthand information about wrongdoing that he is concealing from the appropriate disciplinary authorities, that would be a problem. But nobody has suggested that this has occurred. Indeed, you ignored the statement to that effect from Nola's post:
However, I can safely say that Ilya is not sitting on evidence of criminal wrongdoing that could do Kent in.
9.30.2007 3:59pm
unhappy memories (mail):
I read the Bradshaw opinion, and it brought back many bad memories. Not of working with or under Judge Kent, but of working for someone with a similar "sense of humor" in an organization which I won't name.
To outsiders, this kind of rhetoric might appear clever, but to someone who is obligated to take it seriously, it's obnoxious.
I worked for a heavy-handed, micromanaging supervisor who had the same propensity for sarcastic putdowns and humiliating insults. That kind of management style is extremely detrimental and counterproductive to a healthy work environment.
I realize that being an arrogant jerk is not an impeachable offense, nor should it be. But any judge who writes an opinion like this needs someone to give him a talking-to. If a lawyer's work is truly as poor as this decision makes it out to be, there are other ways of communicating that. But to rub a person's face in his own weakness, and to clearly take pleasure in it, is not professional or respectable behavior, especially for a judge.
People involved in the legal system, both lawyers and parties, deserve better.
9.30.2007 4:04pm
Nola:
Sorry, Commenter-Above, there's nothing I know that could constitute any testimony against Kent. I am sure the same is true of Ilya. I don't know that Kent is any kind of crook, and I hope the opposite is true.

Little stories of Kent's personal ill-grace float around (and I heard one or two), but the real problems may be seen in the items Ilya mentions in his posting---the most serious is reassignment of those many cases in 2001. This was a major red flag, of such a magnitude that suspicions in the wider Texas legal community continued thereafter. But suspicions are only suspicions.

His mistreatment of litigants is also a matter of public record, again as noted by Ilya. This is also a major red flag, and is rightly seen as an abuse of authority. And now, on top of this, comes the strange sexual harassment story. (I hadn't thought about Kent for ages, and had to shake my head at seeing the headline.) A third red flag.

What's really up with Kent? I don't know. But Ilya is right to point out that this is only the last in a string of suspicious stories involving Kent.
9.30.2007 5:36pm
tvk:
I disagreed with the Lubet article when it came out, and I still disagree with it today (though given apparently credible allegations of sexual harassment, there may be an altogether independently viable ground for congressional investigation).

Lubet's main argument is that a judge should not publicly criticize counsel; he should instead "chew them out" at a hearing or privately. This just means that the chewing out should occur out of the hearing range of potential future clients, so as not to ruin counsel's livelihood. But the whole point is that incompetent attorneys should have their livelihoods ruined, so that they cannot ruin the cases of their future clients. And, pray tell, how is a private chewing out less "bullying"? If anything, a published opinion after counsel has already lost affords counsel the opportunity to defend himself and reply, through appeal, or at least, newspaper or law review articles. A private chewing out before the case is decided affords no such opportunity.

Lubet's other argument is that chewing out counsel for stupid arguments will deter creative legal arguments. But this is just saying that Rule 11 and any measure suppressing frivolous legal arguments will "chill" borderline arguments. In other words, it is the same "chill" speech argument that is familiar to any First Amendment scholar. The consequence is an ever-declining slippery slope where what was once borderline becomes mainstream, what was once sanctionably frivolous becomes borderline, and the cycle repeats until courts can never sanction frivolous arguments, resulting in more and more litigation.

None of this, of course, is to defend sexual harassment. But to argue that Judge Kent should be impeached or otherwise disciplined because he is one of the few federal judges to call a frivolous argument for what it is turns the gatekeeping function of judges on its head.
9.30.2007 5:50pm
TerrencePhilip:
tvk,

you are misinterpreting the criticisms of Kent: it is perfectly permissible to point out the failings of lawyers, for example when both counsel in a case miss the obvious legal reason for applying a state statute of limitations; or when a lawyer asks for a "change of venue" when what he really wanted was an intradistrict transfer to another division of court. Judges do these things every single day.

It is a long way from that, or even Rule 11 sanctions if warranted, to writing opinions "joking" that the lawyers' pleadings were written in crayon and had dog urine on them. Litigants who have serious claims, deserve a judge who will behave seriously. Judge Kent's opinions are just designed to gain attention for himself; it is disgraceful. It is a measure of how little concern he has for the rights of litigants, and the legal system itself, that he has on more than one occasion failed to follow orders from the Fifth Circuit.
9.30.2007 6:42pm
Bill Poser (mail) (www):
Reader Y writes:

impeachment is for high crimes and misdemeanors -- criminal acts, nothing less.

The term "misdemeanor" does not mean what you think it means in this context. It is well established that judges may be impeached for misconduct not amounting to a crime. The first judge impeached by the Senate, John Pickering, was removed in 1804 for chronic drunkeness.

What I find ironic is that what may lead to impeachment in Kent's case is sexual harassment of a presumably relative minor type (if not, the matter should have been referred for prosecution), rather than misconduct much more damaging to the legal system, such as his reported failure to recuse himself from numerous cases in which his best friend appeared before him.
10.1.2007 6:48am
Brendan Wright (mail) (www):
I find Ilya stance correct, principled, and refreshing. Too many in and out of goverment, view confidentiality as something fleeting. It seems many politicians, many political appointees, and the entire Dept. of State/CIA bureaucracy vie their access to classified and/or confidential information as a privilege to be wielded whenever it serves their political purpose. Look no further than Armitage's leak in the Wilson affair: lives were ruined, the functioning of the government impeded, and resources wasted. Even in a case where he was probably merely being unethical - much damage was caused.
10.1.2007 3:37pm
Toby:

Litigants who have serious claims, deserve a judge who will behave seriously. Judge Kent's opinions are just designed to gain attention for himself; it is disgraceful

Litigants who have serious claims, also deserve lawyers who are not just mailing it in. Perhaps the lawyers should be disbarred for the fraud of billing their clients for crude amateurish presentations...
10.1.2007 4:31pm
Ari:
Ilya, Where in any public source that you cite does it say the Melancon cases in 2001 were transferred because "there were allegations that Kent was engaging in favoritism on his friend's behalf."? That is a serious claim to make without a source. The order of transfer was non-descript. Although it was reported that Melancon was a friend, I'm surprised you would jump to conclusion that there were allegations of favoritism as opposed to perhaps concern re: appearance of impropriety.
10.1.2007 5:40pm
fishbane (mail):
I find it interesting that people who favor an open public record for others support withholding that information to the public when it comes to legal professionals. I'd honestly see it more likely to work better the other way around - those who judge us should be more beyond reproach than those they're judging.

But I'm hosest, and see the same guild behaviour in my profession. It is what people do, even when it isn't right.
10.3.2007 9:41pm