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National Organization For Women Calls for Impeachment Investigation of Judge Samuel B. Kent:

The National Organization For Women is asking Congress to investigate the possibility of impeaching U.S. District Judge Samuel B. Kent, who has been accused of sexual harrassment and numerous other violations of judicial ethics.

I don't often agree with NOW, but they're certainly right on this issue. However, NOW President Kim Gandy is wrong to criticize the US Court of Appeals for the Fifth Circuit for not giving Kent a more severe punishment:

"The idea that any employee who has been found to engage in sufficient misconduct to justify a reprimand and a suspension from employment would then continue to draw a full salary from the taxpayers during that suspension is a shocking idea," Gandy said. "It's an outrage. He could go travel the world for four months. That's not a punishment, that's a reward."

Article III of the Constitution prevents the Fifth Circuit from docking Kent's pay or permanently removing him from hearing cases. The only way to achieve that result is impeachment by the House of Representatives followed by a conviction in the Senate.

Dave Hardy (mail) (www):
To be fair (do we have to be?) her quote could mean:

(1) The 5th Circuit did it could, giving him a suspension with pay (a/k/a vacation).

(2) This is nowhere near enough, and he ought to be impeached, and THAT would end his ration of salary and power.

We don't know the context of the quote, and the reporter likely didn't know anything about Article III, just that they wanted something short and quotable for the story.
10.3.2007 12:01am
Dave Hardy (mail) (www):
Oops. 5th Circuit did *what* it could.
10.3.2007 12:02am
Brian Barnett Duff:
So long as the judge keeps his office and pay, I don't think Article III has anything to say about whether a sitting judge must be allowed to hear cases.

Trust me (and the Seventh Circuit Judicial Council) on this one.
10.3.2007 12:23am
NickM (mail) (www):
The Constitution shocks Kim Gandy.

Film at 11.
10.3.2007 12:25am
Paul Karl Lukacs (mail) (www):
Someone will mention it, so let me be the first:

Is this the same National Organization for Women that wanted senators to vote for acquittal the last time there was an impeachment trial of a federal officer accused of a pervasive and sustained pattern of sexual harassment of women?
10.3.2007 12:39am
e:
Mr. Lukacs, I suspect you can figure this out on your own.

Assuming you're speaking of Clinton (who was not my choice of president), the issue before congress was not harassment or even his consensual encounter with an admittedly young adult. Based on the sanctions, the easy conclusion is that evidence of harassment (unwanted advances) by the judge while he was in office is more substantial than Clinton's history before he took the oath.

The lying may be a problem for those who consider fidelity in private consensual matters to rise to high crimes, but your comparison is inapt.
10.3.2007 12:51am
TerrencePhilip:
I wonder how the congressional protocol works: would a non-Texas senator or rep make enemies in the TX delegation by requesting an impeachment inquiry? The issue may die if the hometown congressman doesn't want to take it up. I see that none other than the libertarian-leaning Ron Paul, along with some other guy, represents parts of Galveston County. Maybe someone can lob the impeachment question at Mr. Paul while he's running for president.
10.3.2007 1:17am
Dave Hardy (mail) (www):
One logistics problem is that impeachment is a major legislative pain in the neck. Stop Congress and have a trial. If I remember the rulings in the Alcee Hastings matter (which I regarded as rather unfortunate: in the one hearing I'd had before him he was quite fair and courteous), it could be reduced to a committee having a trial, submitting its report, and the entire Senate voting to accept or reject. Still that means Judiciary Committee is tied up for a trial (and I quite disagree with the idea that voting on a report, after MAYBE reading the record, is a proper way to handle an impeachment).
10.3.2007 1:35am
Dave N (mail):
I agree with the National Organization for Women that Judge Kent should be referred to the House Judiciary Committee for possible impeachment.

As the saying goes, even a stopped clock is right twice a day. Now if I start agreeing with Kos, I will know I need to have my head examined.
10.3.2007 2:23am
Ilya Somin:
So long as the judge keeps his office and pay, I don't think Article III has anything to say about whether a sitting judge must be allowed to hear cases.


I don't think a judge can retain his office in any meaningful sense if he is permanently barred from hearing cases.
10.3.2007 2:35am
tvk:
But NOW is quite right that making someone do no work for months with full pay is basically a forced vacation. I just don't see it as punishment.

Can the Fifth Circuit constitutionally require that Judge Kent be assigned to a full docket of habeas and prisoner litigation for the next year? I don't see why not, and I think it would be properly considered more of a punishment than suspension with pay.
10.3.2007 2:41am
Brian Barnett Duff:
So long as the judge keeps his office and pay, I don't think Article III has anything to say about whether a sitting judge must be allowed to hear cases.


I don't think a judge can retain his office in any meaningful sense if he is permanently barred from hearing cases.

Perhaps, as a matter of semantics, but I refer you to the case of Judge Duff, who did in fact lose the ability to hear cases -- without being impeached.
10.3.2007 3:01am
Consanescerion (mail):
NOW will back rapists if it suits their political cause. They only back Democrat or lesbian causes. They persecute any woman who does not worship their sacred cows. Because of all this they are at best accidentally right.
10.3.2007 6:34am
Ted Frank (www):
Wasn't the Duff case a voluntary resignation? Perhaps Duff was about to face discipline for erratic behavior (see, e.g., his cert petition in Duff v. Governor of Illinois), but according to contemporaneous press coverage and his own account, he resigned over a heart condition--though the US Attorney was reported to announce that he would discipline anyone caught leaking information to the contrary. From the 10/13/96 Tribune:
Despite criticism for his conduct and comment, Duff remained feisty, even on Friday, saying news stories about his behavior were "a lot of trash . . . a feeding frenzy."

"I'm not retiring. I'm not being forced out. I do have a serious medical problem, and I'm going to take care of it," he said. ...

Duff's resignation followed a series of reversals and reprimands from the U.S. Court of Appeals and the filing of a complaint by the U.S. attorney's office. It alleged he was biased against the government and asked that he be relieved of all criminal cases, according to sources. The complaint was filed under seal with the Judicial Council, the body of judges that investigated complaints against the federal judiciary, and was withdrawn after he resigned, sources said.
10.3.2007 7:19am
Roger Schlafly (www):
Is there some public description of Kent's alleged crimes? How can anyone have an opinion on impeachment until the precise accusation is known?
10.3.2007 9:31am
anonVCfan:
My recollection is that NOW has never been too concerned with the text of the Constitution.
10.3.2007 3:19pm
KeithK (mail):
Here's a question for the group. Would it make sense to give the judicial branch itself power to suspend (without pay) or remove members of the federal judiciary for conduct that doesn't qualify as "good behavior"? For instance, allow a circuit court to suspend one of it's own with a two-thirds or three-quarters majority. A super majority requirement, esp. with three-quarters, would tend to eliminate political uses of this power.
10.3.2007 3:23pm
Ilya Somin:
Is there some public description of Kent's alleged crimes? How can anyone have an opinion on impeachment until the precise accusation is known?

I have linked to all that is publicly available in previous posts in this series. I admit that not nearly enough is known. That is part of the reason why I'm only suggesting an investigation into the possibility of impeachment, not an actual impeachment itself. Part of the purpose of the investigation would be to ascertain the facts.
10.3.2007 3:33pm
LongSufferingRaidersFan (mail):
Like a lib organization cares about the Constitution or the law......
10.3.2007 3:37pm
Mr. Y:
Regarding the comment that:

So long as the judge keeps his office and pay, I don't think Article III has anything to say about whether a sitting judge must be allowed to hear cases.

I think this argument is too clever by half (and, as another commentator has pointed out, the Duff case proves nothing because the judge in that case resigned), but in any event it founders on the shoals of the applicable statute. See 28 USC 354(a)(2)(A)(i), which provides that a judicial council can order "on a temporary basis for a time certain, [that] no further cases be assigned to the judge whose conduct is the subject of a complaint." Expressio unius est exclusio alterius.

Like it or not, there's really not much that a judicial conference can do to sitting Article III judges, other than issue reprimands and report them to Congress. The Fifth Circuit is acutely aware of these limitations. See In re McBryde, 117 F.3d 208 (5th Cir. 1997).
10.3.2007 5:39pm
JBL:
If a judge has been accused of serious misbehavior, especially of exhibiting blatant favoritism in the courtroom, preventing him from hearing cases serves legitimate purposes other than punishing the judge. Though members of the Fifth Circuit may have some interest in punishing Kent, isn't their main concern maintaining fairness and the appearance of fairness in the courtroom? The suspension does that even if Kent loves it.

And it may be that the suspension is unpleasant for Kent. Maybe his one real pleasure in life was abusing his authority, and now he's just heartbroken. Who knows. Not that that would generate a lot of sympathy.
10.3.2007 7:17pm