Lawyer/blogger "Beldar" has a lengthy rant about my calls for Congress to investigate the possibility of impeaching Judge Samuel B. Kent, the Galveston, Texas district judge who has been accused of sexual harrassment and has a long record of other ethical problems.

Essentially, Beldar's claim is that because the Fifth Circuit Judicial Council could have chosen to recommend Kent's impeachment but ended up reprimanding him without a recommendation on impeachment, that is strong evidence that his offenses are not grave enough to justify impeachment.

My response is very simple: the Fifth Circuit's nonaction on impeachment proves little if anything. It doesn't even prove that they considered the possibility of recommending impeachment and rejected it. Had they done so, they could have stated that in their opinion on the matter - something they notably didn't do. 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.

Even if it did consider it and rejected it, it does not follow that Congress should defer. In such difficult internal matters as the disciplining of other judges, a judicial conference 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.

Beldar also claims that the Conference could have used "harsher" terms in describing Kent's alleged offenses or asked him to retire. I think that the Conference's reprimand is already quite harsh by the standards of judicial language. Again, we have to remember that the reprimand is a committee document that probably represents the lowest common denominator that 19 people of very different ideologies and temperaments could agree to.

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.

Finally, Beldar mispresents 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).

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.