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Update on Judge Samuel B. Kent:

The Houston Chronicle has a new article with updates on the controversy over Judge Samuel B. Kent, the Galveston, Texas federal judge who has been disciplined for sexual harassment, and has a long history of other ethical lapses. As the article explains, more and more people are calling for Congress to investigate the possibility of impeaching Kent (which is the only way to remove him from the bench).

Unfortunately, there are a couple of minor factual errors in the piece. For example, I am identified as a professor at George Washington University, not George Mason. The article also states that "In 2005, he was formally rebuked in a 5th Circuit opinion for showing favoritism." In fact, the decision in question was handed down in 2002, and Kent was rebuked for showing "hostility" to one of the parties in the case, not for favoritism (which might be considered a somewhat more serious violation of judicial ethics). I have pointed out these mistakes to one of the article's authors, and she assured me that they will be corrected. I don't think these errors significantly affect the article's main points: that the accusations against Kent are serious, and that support for a congressional investigation is growing.

Duffy Pratt (mail):
As long as we are picking at nits, it might have been better to say that impeachment is the only lawful way of removing Kent from the bench. There are all sorts of other ways that the task might be accomplished.
10.8.2007 7:57am
justwonderingby:
What, the media printed a factually incorrect piece? I'm shocked.
10.8.2007 9:07am
Chris Bell (mail):
I nominate Duffy Pratt for the annual "Most Sinister Sounding Comment" award.
10.8.2007 9:29am
Jeff Lebowski (mail):
I second the nomination.
10.8.2007 10:29am
R. Richard Schweitzer (mail):
Perhaps they will free Judge Kent to join former judge Hastings in Congress.
10.8.2007 10:49am
Houston Lawyer:
Much as he might deserve to be impeached, I'm betting that Congress won't start an impeachment hearing based upon sexual harrassment charges while Hillary is the front-runner for the nomination.
10.8.2007 11:09am
Roach (mail) (www):
I clerked in the ND Tex and worked for a while in Houston. Apparently, he used to sit down law clerk applicants and say, verbatism, "Do you like titty bars? I don't like my clerks going to titty bars." And, yes, there are some very tempting locales in the Galveston area.
10.8.2007 11:51am
Dave N (mail):
Judge Kent and Judge Real should both be investigated for possible impeachment (though the fact that Judge Real is 83 mitigates impeaching him, involuntary senior status would be fine with me).

Judges who bring disrepute to the judiciary damage the entire legal profession. There is not much we can do about "ambulance chasers" but Congress does have a duty and responsibility to deal with people like Samuel Kent and Manuel Real.
10.8.2007 12:34pm
TerrencePhilip:
Roach,

perhaps he just didn't like running into employees outside the office!
10.8.2007 12:50pm
Roger Schlafly (www):
In 1993, he said lawyers offered "half-baked, hair-brained theories" that were "illogical, insupportable, nonsensical and some even extremely outlandish." ... In the most recent incident, the judge was accused of inappropriately touching a female case manager in his chambers in March.
Why isn't anyone willing to make a substantive allegation against Kent?

Somin's position is particularly obnoxious. He suggests that he has some inside knowledge of incriminating evidence, but refuses to say what it is. If you think that Kent should be impeached, then tell us his crimes.
10.8.2007 1:22pm
Thoghtful (mail):
It seems to me the impeachment power is not used nearly enough...
10.8.2007 3:09pm
Ilya Somin:
Somin's position is particularly obnoxious. He suggests that he has some inside knowledge of incriminating evidence, but refuses to say what it is. If you think that Kent should be impeached, then tell us his crimes.

The main accusations against Kent are on the public record and I have mentioned them in my posts here at the VC. Any nonpublic knowledge I may have cannot be revealed for reasons I discussed in my very first post on Kent.
10.8.2007 5:14pm
Kazinski:
Charging an 83 year old man for sexual harrasment is ridiculous. Having an 83 year old man on the bench is ridiculous. There needs to be a mandatory retirement age for federal judges, and yes that includes the Supreme Court. Sure there are some judges capable of still serving at 75 and beyond, but they shouldn't be allowed to self select. The judges most likely to think they are still capable are the ones least likely to be capable of serving past 75.
10.8.2007 6:19pm
Horatio (mail):
What occupation other than Federal judges have lifetime guaranteed employment - assuming one doesn't do something to warrant impeachment?

How about a 12-18 year limit?
10.8.2007 6:23pm
Kazinski:
I guess I got Real and Kent mixed up, Kent is 58, he doesn't have much of an excuse for sexual harassment. Real is 83 and seems to have an outsized idea of the powers of a federal judge dating back at least 37 years. I guess he doesn't have much of an excuse either.
10.8.2007 6:30pm
Bill Dyer (mail) (www):
Prof. Somin, what you have YET to do is acknowledge that the Judicial Council had the statutory authority to forward the complaint to the Judicial Conference with a recommendation that it be forwarded to the Congress to begin impeachment proceedings — but the Council did not exercise that authority as part of its remedies/penalties for Judge Kent.

You've yet to correct your own misstatement, made several times in this series of posts and your own comments to them, to the effect that there wasn't much more that the Council could do.

It would be honest, accurate, and decent for you to acknowledge that while Congress can consider impeachment without such a recommendation, the federal judges (which include district judges) in the organization that Congress has appointed by statute to make such recommendations declined to do so.

This is at least the third of your posts in which I've pointed this out without the courtesy of an acknowledgment or response. I am beginning to conclude that you do indeed have an axe to grind here.
10.8.2007 6:46pm
Bill Dyer (mail) (www):
Let me point out one more thing, in response to Mr. Schlafly (12:22pm above) and Prof. Somin:

U.S. Circuit Judge Jerry E. Smith of Houston, the judge for whom Prof. Somin clerked — and I presume that clerkship is the sole basis through which Prof. Somin may have acquired confidential information about Judge Kent, all of which is presumably at least several years out of date now — was also on the Judicial Council that decided on appropriate remedies/penalties for the complaint against Judge Kent. Anything Prof. Somin might know, Judge Smith should know too, and presumably if it reflects poorly on Judge Kent, Judge Smith shared that with the Council.

The Council chose not to recommend impeachment. Maybe Judge Smith concurred in the Council's decision by majority vote, or perhaps not; we do know, at a minimum, that he didn't write a dissent from it. Apparently Prof. Somin disagrees with the Council's decision, as is his right, and thinks that Congress should institute impeachment proceedings anyway, as is its right. Don't be fooled, however, into thinking that there's some secret evidence to support that proposition that Prof. Somin knows (but can't tell us) which the Council didn't consider.
10.8.2007 7:07pm
Ilya Somin:
Prof. Somin, what you have YET to do is acknowledge that the Judicial Council had the statutory authority to forward the complaint to the Judicial Conference with a recommendation that it be forwarded to the Congress to begin impeachment proceedings — but the Council did not exercise that authority as part of its remedies/penalties for Judge Kent.

You've yet to correct your own misstatement, made several times in this series of posts and your own comments to them, to the effect that there wasn't much more that the Council could do.


Sure, the council could recommend impeachment. I probably should have noted that in my earlier post. However, that does not contradict my statement that there wasn't much more that the Council could do. Issuing a recommendation that Congress has no obligation to follow is not that powerful a sanction. Moreover, for obvious separation of powers reasons, judges are reluctant to involve themselves in the impeachment process. I'm not aware of any cases where a judicial council has done so.
10.8.2007 7:09pm
Bill Dyer (mail) (www):
Have you even READ the statute?

From my comment on one of your earlier posts:

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.


You think judges would be reluctant to "involve themselves in the impeachment process" by exercising (in an appropriate case) a power that Congress specifically delegated to the Council and the Conference?

You're entitled to express and promote an opinion that the Council's punishment was too light, and that Congress should impeach Judge Kent. You're not entitled to mislead people into thinking that the Council was powerless to do more than it did. And you should acknowledge that the measured remedy/punishment ordered by the Council presumptively included (through your own judge) all the information available to you from your clerkship days, plus sworn testimony that none of us is privy to, and that might reflect either better or worse on Judge Kent than the unverified, unsworn, untested allegations in the news media.
10.8.2007 7:36pm
Roger Schlafly (www):
Don't be fooled, however, into thinking that there's some secret evidence to support that proposition that Prof. Somin knows (but can't tell us) which the Council didn't consider.
No, I think that Prof. Somin is sitting on secret evidence that he can tell us, but chooses not too. Somin has suggested that Kent has committed a criminal offense, and yet there is no criminal complaint on the record.

I think that Somin should either tell us the crime, or avoid making such accusations.
10.8.2007 8:35pm
Ilya Somin:
No, I think that Prof. Somin is sitting on secret evidence that he can tell us, but chooses not too. Somin has suggested that Kent has committed a criminal offense, and yet there is no criminal complaint on the record.

The only references to a criminal offense in any of my posts were to the sexual harrasment accuser's lawyer's claims to that effect (which were publicly made). I have never said anything about any possible criminal offense other than that one. As I have pointed out previously, the sexual harrassment incident occurred after my tenure as a 5th Circuit clerk, and therefore it would not be possible for me to have any confidential information about it.

As for your other accusations of sitting on "secret evidence," all I can say that it is foolish of you to make accusations about matters that 1) you know nothing about, and 2) I can't respond to because of confidentiality requirements imposed by law.
10.8.2007 9:11pm
Ilya Somin:
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.

Regarding making more specific (public) findings, it's not clear whether the council could have done so without publicly revealing evidence gathered during its investigation (which it is forbidden to do by statute). As to the other points, all of them involve the Council merely making additional announcements or recommendations that Kent and/or Congress are not required to follow. Therefore, they would not have amounted to much in practice. Finally, even if the Council has the statutory authority to recommend impeachment, it is still the case that judges are reluctant - for separation of powers reasons - to involve themselves in impeachment proceedings in any way, and I'm not aware of any cases where they have actually recommended impeachment of another judge.
10.8.2007 9:17pm
Roger Schlafly (www):
Prof. Somin, you say that in your opinion, Congress should consider impeaching Judge Kent. You claim to be bound by confidentiality rules that prevent you from saying what you know about Kent. And yet you cite, with approval, an accusation that Kent has committed a criminal offense.

You are doing a lawyerly dance on this issue. Do you know about some criminal offense or not? Is there really some federal law that prevents you from reporting a criminal offense? Why do you have six posts attacking Kent if you are really supposed to keep your mouth shut?

I know nothing about Kent, and he may deserve impeachment. But he doesn't deserve a law professor with inside info posting cryptic messages about how Kent may be a criminal. You sound as if you are trying to legally slander him as much as you can. Do you have some grudge against him?
10.8.2007 9:46pm
David M. Nieporent (www):
You're not entitled to mislead people into thinking that the Council was powerless to do more than it did.
I guess that depends whether one considers the ability to make a non-binding recommendation is a "power." I can make a recommendation that Kent be impeached. So can Hugo Chavez, Britney Spears, and the guy on the corner asking for spare change.

Since Congress is entirely free to ignore any or all of us, including the Council, it's a pretty toothless "power."
10.9.2007 12:27am
Bill Dyer (mail) (www):
As far as your lack of knowledge of precedents, Prof. Somin, this exact statutory scheme dates only back to 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. By its structure, the current set-up clearly evidences a Congressional recognition 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.

You write (at 6:09pm above): "Issuing a recommendation that Congress has no obligation to follow is not that powerful a sanction." But why on earth would anyone believe that Congress would pass a statute designed to gather the well-considered judgments of federal judges on whether one of their number ought be impeached, along with a well-developed record on the complaint against him, and then ignore it? I would suggest to you instead that 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.

As for that well-developed record, I don't mean to be insulting, but I ask again: Have you actually read chapter 16 of Title 28, which contains the set of statutes on judicial complaints? Regarding confidentiality, you write (at 8:17pm above) that "it's not clear whether the council could have done so [i.e., forwarded information from its investigation to the Conference for forwarding to Congress in connection with an impeachment recommendation] without publicly revealing evidence gathered during its investigation (which it is forbidden to do by statute)." But the very section that creates that confidentiality obligation, 28 U.S.C. § 360, begins: "Except as provided in section 355 ...." Section 355(b), in turn, is the section that permits the Judicial Conference to make a determination

that consideration of impeachment may be warranted, [in which case] 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. Upon receipt of the determination and record of proceedings in the House of Representatives, the Clerk of the House of Representatives shall make available to the public the determination and any reasons for the determination.


A much longer suspension would of course have been binding upon Judge Kent. 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. Moreover, while a request that Judge Kent voluntarily resign wouldn't have been binding, it's simply ridiculous to suggest that such a request wouldn't have a devastating effect on sitting federal judge, especially if made as part of a public reprimand.

The plain fact of the matter, Prof. Somin, is that having access to none of the detailed sworn testimony on which the Council made its calibrated set of remedies/sanctions, you've deduced that — contrary to the conclusion of the Judicial Council that included the judge for whom you clerked — Congress ought to look into impeaching Judge Kent. Such is your right. But in the process of expressing your opinion, you've now made a string of misrepresentations and omissions, and your opinion seems to have been reached with a very poor understanding of the system within which judicial complaints are processed. If you're trying for some reason to get out in front on an "Impeach Sam Kent" movement, I hope you'll be intellectually honest in disclosing that you're badly out of step with the Judicial Council that's actually investigated this complaint in detail.
10.9.2007 1:13am
vic:
why this much ado about nothing. this crap is not exceptional or newsworthy- it is commonplace I dont know much about the federal judiciary, but living and working in amajor metro area, the circuit court judges i have seen are a trip.
to a man these jokers are arrogant, think they are above the law, are biased supecilious, at many times ignorant of the law amongst other things. Anything short of a travesty of justice would be exceptional out of these bozos.
10.9.2007 1:21am
Steven Jens (mail) (www):
Congress is free to ignore any or all of you, but I would hope that Congress would put more weight on a recommendation of the council than a recommendation from Britney Spears.

I may be naive, though. And, at any rate, exactly how much weight they'd give the recommendation is a judgment call, which is hard for us laymen to make. Prof. Somin has mentioned a couple of times that he isn't aware of any council ever making such a recommendation; I hope any readers who know otherwise will share what they know, and (ideally) how the House Committee on the Judiciary reacted to said recommendation.
10.9.2007 1:25am
Bill Dyer (mail) (www):
Prof. Somin, you also wrote that "it is still the case that judges are reluctant - for separation of powers reasons - to involve themselves in impeachment proceedings in any way, and I'm not aware of any cases where they have actually recommended impeachment of another judge."

But that was clearly not the case even under the pre-2002 setup, as this article illustrates:

The Federal judiciary's chief policy-making body told Congress today that "consideration of impeachment may be warranted" in the case of a Federal district judge in Miami.

This action by the Judicial Conference of the United States set the stage for what could be a dramatic battle in Congress over the judge, Alcee L. Hastings. It culminated a long judicial investigation that was begun shortly after a Federal jury acquitted Judge Hastings of corruption charges in February 1983.

....

Chief Justice William H. Rehnquist, who heads the Judicial Conference, sent to the House of Representatives what Judge Hastings's lawyer described as a 381-page report by a special judicial investigating panel, concluding that Judge Hastings was guilty in the 1983 bribery-conspiracy case and that he committed new crimes by fabricating a false account of his conduct in his defense testimony.


Judge Hastings was, of course, duly impeached.
10.9.2007 1:47am
Ardbeg (mail):
"Is there really some federal law that prevents you from reporting a criminal offense?"

Just because Mr. Somin may be able to report criminal conduct under the confidentiality rules, doesn't mean that (1) he can maintain those rules while announcing that he is not aware of any criminal conduct or (2) maintain those rules despite stating that he is aware of criminal conduct in a public forum (even if he has, privately, reported that conduct to the proper authorities. You are not the authorities.

Similarly, under Sarbanes-Oxley, an attorney may (and indeed, in some cases, must) report probably ongoing criminal conduct by his clients to the authorities. However, even in such an event, he cannot run to the Houston Chronicle and tell them about the same conduct. If he does the former, he is following the law, and is given a limited break from his confidentiality obligations. If he does the latter, he will be disbarred.

In any event, you are reading in an event Somin never claimed existed. He said he isn't revealing confidential info, he didn't say there was or was any. Somin certainly never implied confidential knowledge of criminal conduct (and has repeatedly noted that the only conduct which anyone has alleged might be criminal occurred after he left the court employ).

You are treating a standard pro forma disclaimer like it's some Clintonese prevarication that must be parsed and reparsed. Indeed, you are inferring precisely the stupid assumption he hoped to preempt (that his post was based entirely on inside knowledge).

As for myself, I'll be more direct and say I don't specifically know anything that he has done that requires impeachment. I have, however, had a couple personal encounters with him (not as a litigant in his court), and thought he was audaciously arrogant and somewhat off his rocker. I certainly couldn't stand as an unbiased juror in a case judging him, because my personal experiences lead me to the character judgment that any allegations against him should face a rebuttable presumption of legitimacy when voiced by credible accusers.

And let's quit pretending it's all allegations and no substance. This man has been reprimanded repeatedly now, and his four-month suspension, even though the reasons are secret, is the most serious penalty I've every seen in my time observing the courts. This isn't just smoke, it's also obviously fire: we just haven't been able to see the fire. Whether or not the panel decided to recommend impeachment proceedings, it's perfectly reasonable based on that information alone that Congress investigate the fire and decide if it's big enough that Judge Kent should be burned.
10.9.2007 7:33pm
Bill Dyer (mail) (www):
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).
10.10.2007 1:41am
Raskolnikov:
Responding to the previous post, rather than having been "reprimanded repeatedly now," this is actually the first formal reprimand Judge Kent has received from the Fifth Circuit. As for the "most serious penalty I've ever seen" comment, you must not be aware that Judge McBryde in Fort Worth was barred by the Fifth Circuit from hearing cases for an entire year. Also, the longer punishment imposed on McBryde was just for being mean to some lawyers. So either the Fifth Circuit Judicial Council views meaness to lawyers as worse than sexual harassment and the other conduct alleged against Kent, or they gave little credence to these allegations. Giving the Council the benefit of the doubt, I'll conclude it was the latter. To echo Dyer's lucid comments above, these were 19 well-respected, intelligent, and experienced Fifth Circuit and District judges, who spent a whole lot of time evaluating the complaints and evidence and imposed a relatively minor punishment. To urge a Congressional impeachment investigation despite this fact is to attack the ability and integrity of these 19 judges.
10.10.2007 2:02am
Charlie (Colorado) (mail):
Ilya, I'm afraid, as an admirer of both of you, that Bill is rather having the best of you here.
10.10.2007 11:25am