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.
Related Posts (on one page):
- Details of the Sexual Harrassment Accusations Against Judge Samuel B. Kent:
- Federal Judge Who Sexually Harassed Employee Is Being Moved to Houston:
- More on Judge Samuel B. Kent and Impeachment:
- Update on Judge Samuel B. Kent:
- House Judiciary Committee May Open Impeachment Investigation of Judge Samuel B. Kent:
- National Organization For Women Calls for Impeachment Investigation of Judge Samuel B. Kent:
- More on the Judge Samuel B. Kent Case:
- The Ethical Cloud Over Judge Samuel B. Kent:
- U.S. Court of Appeals for the Fifth Circuit Admonishes Judge Samuel B. Kent for Sexual Harassment of a Judiciary Employee:
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.
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.
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.
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.
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.
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.
A short recon of what’s out there that might draw your attention, updated throughout the day...so check back often.
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.
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?