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More on the Judge Samuel B. Kent Case:

Houston Chronicle columnist Rick Casey has a good article on the Fifth Circuit investigation into the sexual harrassment claims against Judge Samuel B. Kent.

Casey makes two important points. First, federal law requires the US Court of Appeals for the Fifth Circuit to keep secret the evidence obtained in its investigation. For this reason, it is wrong to infer that the Fifth Circuit judges are keeping the information secret in order to somehow help Kent cover up his misconduct. If you want to study the details of relevant statute for yourself, it is 28 U.S.C. 360.

Second, there actually isn't very much that the Fifth Circuit can do to punish Kent. Article III of the Constitution prevents them from removing him from his position or docking his pay. It is unlikely that the Circuit could impose a sanction much more severe than the (unusual) public reprimand and compelled temporary leave that they have already administered. The only way to forcibly remove Kent from the bench is by means of impeachment by Congress. That is why I suggested in my last post that the House of Representatives should investigate the charges against Kent in detail, and make a determination on whether to proceed with an impeachment vote (which would be followed by a trial in the Senate, if it passes).

Casey also argues that the evidence collected by investigations of judicial misconduct should be made public. There is some merit to his view. However, I would be reluctant to establish a blanket rule in favor of disclosure; some judicial employees or other witnesses might be unwilling to assist investigators if they knew their statements would automatically be made public. The public interest in disclosure has to be balanced against the need to guarantee confidentiality to some witnesses in cases where essential evidence might be impossible to obtain without it. I don't have the expertise needed to determine exactly where the line should be drawn. But perhaps there should be a presumption in favor of disclosure that nevertheless gives investigators the option of guaranteeing confidentiality in some cases.

Ploni:
Why is the temporary leave sanction constitutional? The purpose of the constitutional bans on salary reduction and removal of judges is to make their decisions immune from reprecussions. The same problem that could result from dismissing the judges outright can also result from banning them from actively serving for a fixed period of time. For instance, a judge may be detered from enforcing a constitutional right protecting an unsympathetic defendant if he could be subject to sanction. Since politically motivated sanctions could always be disguised as punishment for misconduct, judges need to be protected from removal in cases short of impeachment. I can't see how "temporary leave" sanctions don't raise the same problem.
9.30.2007 9:38pm
William Baude (mail) (www):
As a matter of constitutional text, original history, and post-enactment practice, it is not at all clear that "The only way to forcibly remove Kent from the bench is by means of impeachment by Congress."

See Sai Prakash and Steve Smith's article in the last volume of the Yale Law Journal, How To Remove a Federal Judge. They discuss the issue of discipline by other judges at 132-33.
9.30.2007 9:50pm
Steven Lubet (mail):
The confidentialy provision applies to the contents of the complaint and investigatory report, but section 360(b) specifically provides that


Each written order to implement any action under section 354(a)(1)(C), which is issued by a judicial council . . . shall be made available to the public through the appropriate clerk's office of the court of appeals for the circuit. Unless contrary to the interests of justice, each such order shall be accompanied by written reasons therefor.


Nothing prevented the Fifth Circuit judicial council from providing a more specific explanation of its findings and the reasons for the reprimand.
9.30.2007 9:59pm
Ilya Somin:
Nothing prevented the Fifth Circuit judicial council from providing a more specific explanation of its findings and the reasons for the reprimand.

That is true. But presumably those "reasons" could not include revelation of the details of the materials gathered in the investigation, since such revelations are banned by 28 USC 360.
9.30.2007 10:34pm
Ilya Somin:
As a matter of constitutional text, original history, and post-enactment practice, it is not at all clear that "The only way to forcibly remove Kent from the bench is by means of impeachment by Congress."

See Sai Prakash and Steve Smith's article in the last volume of the Yale Law Journal, How To Remove a Federal Judge.


Yes, Prakash and Smith have written a important challenge to the conventional wisdom in this field. However, I am skeptical that they are ultimately correct, and in any case the Supreme Court is unlikely to accept their view in the near future.
9.30.2007 10:35pm
David M. Nieporent (www):
Ploni: please "punish" me by giving me a long paid vacation, okay?
9.30.2007 10:37pm
Eli Rabett (www):
Seems to me they could refer the issue to the Congress for investigation wrt possible impeachment.
9.30.2007 10:55pm
GV_:
Ilya, there is nothing contradictory about the council fully explaining what it is doing, pursuant to 28 U.S.C. § 360(b), and adhering to the prohibition against keeping “all papers, documents, and records” of the proceeding confidential, per subsection (a). For example, the Fifth Circuit could say “Judge Kent has engaged in repeated sexual harassment of his court employees” (assuming there is sufficient evidence of such an allegation). That legal conclusion, while based on the confidential evidence, is not protected by subsection (a). Indeed, subsection (b) seems to require the Fifth Circuit to provide such an explanation. This is not only to the benefit of Judge Kent, so people can stop speculating what the Fifth Circuit’s Judicial Council did, but also to the benefit of the public, for all the reasons others have stated.

A nit pick: isn’t it incorrect to say that the “Fifth Circuit” did anything here? It seems to be more accurate to say that Judicial Council of the Fifth Circuit, as the panel is composed of both appellate and district court judges (and not all of the appellate judges).

Finally, what ever happened to impeachment proceedings against Judge Real, who also deserved to be impeached.
9.30.2007 11:14pm
Elliot Reed:
The conventional wisdom in this field has always struck me as odd, given that the Constitutional text at issue blatantly fails to specify that impeachment is the sole means by which a failure of "good Behavior" shall be determined. Has SCOTUS actually issued such a ruling? I've never heard of such a case, and I'd be surprised if they were to strike down a (hypothetical) statute establishing a procedure for finding and enforcing a failure of good behavior.
10.1.2007 12:03am
ReaderY:
Impeachment trials do not have to be public, but if the matter is serious enough to warrant impeachment, let the judge's accuser publicly complain and be available to be confronted.
10.1.2007 12:22am
Steven Lubet (mail):

But presumably those "reasons" could not include revelation of the details of the materials gathered in the investigation, since such revelations are banned by 28 USC 360.


You are wrong about that, Ilya. 28 USC 360 protects the confidentiality of persons, not the secrecy of information. Other judicial council orders (in other circuits) have provided many more details. Dean James Alfini, of the South Texas College of law (and my coauthor of Judicial Conduct and Ethics) called the Fifth Circuit order the "sparest" he has ever seen.

Also, the Fifth Circuit judicial council apparently declined to refer Kent for impeachment (which it could have done pursuant to the statute), without providing an explanation. Certainly the public interest would have been served if the council had explained why Kent's conduct warranted a reprimand but not an impeachment referral.
10.1.2007 10:56am
abb3w:
If the hearing committee thinks the case is serious enough to warrant removal, they should turn the evidence over to the House Judiciary committee for the impeachment, and the Senate if-and-when it comes to trial. After all as I(AmNotALawyer) recall, sexual harassment in the workplace is a violation of federal law.

However, yeah, if the Impeachment trial convicts, the world should hear about it. Justice should not only be done, but be seen to be done; and impeachment and removal of a federal judge is rare enough that it seems unlikely to unduly deter testimony.
10.1.2007 11:17am
Steven Lubet (mail):
The Fifth Circuit's own rules allow a more detailed explanation of the findings against Kent:


Rule 15(C) Disclosure in memoranda of reasons. Memoranda supporting orders of the chief judge or the judicial council, and dissenting opinions or separate statements of members of the judicial council, may contain such information and exhibits as the authors deem appropriate and may be made public pursuant to Rule 16.
10.1.2007 12:18pm
David M (mail) (www):
Trackbacked by The Thunder Run - Web Reconnaissance for 10/01/2007
A short recon of what’s out there that might draw your attention, updated throughout the day...so check back often.
10.1.2007 12:19pm
Bill Dyer (mail) (www):
Here's a working link to the statute.

With due respect, Prof. Somin's statement that "there actually isn't very much that the Fifth Circuit [Judicial Council] can do to punish Kent" is wrong. The Council could have provided for a longer suspension. The Council could have made more particular, and potentially more embarrassing, specific findings. The Council could have formally (and publicly) requested, per 28 U.S.C. § 354(a)(2)(B)(ii), that he voluntarily retire. The Council could have made a referral to the Judicial Conference of the United States, per 28 U.S.C. § 354(b), possibly 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. Given that the Council did not do these things that are clearly within its statutory power, it's reasonable to infer that the Council concluded that such more drastic penalties were inappropriate. My expectation is that the degree of specificity in the public disclosures was itself the subject of internal debate within the Council.

Congress can act on its own; it need not content itself with the judicial system's internal assessment that this isn't impeachment-worthy. But that's unlikely to happen as a practical matter.

Finally, GV_'s nit is correct, and more than a nit: It's misleading to say this was an action of the "Fifth Circuit." It's entirely reasonable to expect, for example, that the District Judges on the Council were very interested in the investigation into and potential disciplining of one of their own.
10.1.2007 1:02pm
cathyf:
I'm wondering the same thing as Ploni -- why does this sort of sanction qualify as constitutional? In Japan, which still has a very strong cultural prohibition against firing people (although it has gotten somewhat weaker in the last few years), they are expert at firing people without actually firing them -- basically they make the person's workplace conditions so miserable that he/she eventually resigns. Use your imagination and think of all of the things you could do without removing the judge or lowering his pay. You could indefinitely reassign all of the staff people who work for him. You could put a lock on the men's room door and refuse to give him a key. You could move his office to a basement storage closet. You could take away all of his furniture except for a single broken chair and a table with unequal legs. If the constitution was serious about protecting judges against reprisals, then it has to cover these sorts of firings-in-all-but-name, too.
10.1.2007 2:23pm
mariner (mail):
Is it the elephant in the room, or am I the only one here who recognizes the name of Judge Kent.

We have before discussed on this board whether his opinions bring discredit upon the bench and reduce respect for the court.

Is it at least possible that an allegation of sexual harrassment gives his fellow judges an opportunity to weigh in, where disapproval of his judicial antics does not?
10.1.2007 4:26pm