The Ethical Cloud Over Judge Samuel B. Kent:

I would like to comment briefly on the controversy surrounding Judge Samuel B. Kent, the Galveston, Texas federal district judge who was recently disciplined by the Fifth Circuit Court of Appeals for sexual harrassment. Since I clerked for Judge Jerry E. Smith of the Fifth Circuit in 2001-2002, it is important to emphasize that this post is based solely on publicly available information and not on any privileged information that I may have had access to during my clerkship. All factual claims in the post are based on published sources that I have linked to. Also, I should note that the post reflects only my own opinions and not those of Judge Smith or other Fifth Circuit judges.

That said, interested readers should know that this is far from the first time that serious issues have been raised regarding Judge Kent's judicial ethics. Indeed, it is no secret that Kent is a notorious figure in the Texas legal community and perhaps even nationally.

Here are a few relevant aspects of Judge Kent's record:

In 2001, the Chief Judge of Southern District of Texas reassigned 85 cases away from Judge Kent, because the cases were being handled by Kent's best friend Richard Melancon and there were allegations that Kent was engaging in favoritism on his friend's behalf. In a 2002 decision, a Fifth Circuit panel removed Judge Kent from a case because he had demonstrated open bias against and "hostility" towards one of the parties. Although it is not terribly unusual for litigants to assert that a judge is biased against them, it is relatively rare for appellate courts to accept such claims and remove the judge from the case.

In this 2001 Green Bag article, Northwestern University Law Professor Steven Lubet documented Kent's notorious courtroom "bullying," which he condemns as not only obnoxious but unethical.

For further (though still incomplete) details of Judge Kent's record and the sexual harrassment charges against him, see this recent Houston Chronicle article.

I'm not sure whether Judge Kent's abuses have reached a point where Congress should impeach him. Much depends on how serious the underlying facts of the sexual harrassment incident are. So far, both the Fifth Circuit (whose personnel are bound by confidentiality rules) and the accuser have maintained a public silence about the details of the case. For obvious separation of powers reasons, the impeachment power should be used only in extreme cases. However, I do think that matters have reached a point where Congress should investigate the issue and give the possibility of impeachment serious consideration.

UPDATE: A few commenters claim that I should reveal any confidential information I might know about the Kent case even in spite of the court rules that forbid such revelations. I don't agree. Many ex-employees from both government agencies and private firms are restricted from speaking about some aspects of their work by confidentiality rules. Such rules can be overriden by a subpoena from a court or (sometimes) a congressional investigative committee. In this case, both congressional investigators and prosecutors who might wish to look into Judge Kent's conduct are likely have a fairly good understanding of how the judiciary works, and therefore could identify court employees whose testimony might be useful.

But it would be both illegal and unjustifiable for the ex-employees to violate confidentiality rules merely because they personally believe that revealing the information in question is desirable. That would undermine the public interest purposes served by the rules and would allow individual ex-officials to take the law into their own hands. If you think (as I, to some extent, do) that law clerk confidentiality rules should be less strict than they are, the proper solution is to get Congress or the Judicial Conference of the United States to change them.

As for suggestions that I am somehow covering up for Kent, if I wanted to do that, I would not have written a post likely to attract additional public attention to his misconduct.

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.

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.

House Judiciary Committee May Open Impeachment Investigation of Judge Samuel B. Kent:

According to this Houston Chronicle article, several members of the House Judiciary Committee have expressed interest in potentially opening up an investigation into the possiblity of impeaching U.S. District Judge Samuel B. Kent, who has a long history of dubious conduct, culminating in a recent sexual harrassment charge, that led to an extremely rare reprimand from the the US Court of Appeals for the Fifth Circuit Judicial Council.

Impeachment would certainly be justified if the accuser's lawyer (quoted in the article) is right to claim that Kent's alleged harrassment (the details of which are not publicly known) amounted a criminal offense.

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.

More on Judge Samuel B. Kent and Impeachment:

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.

Details of the Sexual Harrassment Accusations Against Judge Samuel B. Kent:

The Houston Chronicle has a new story revealing some of the details of the sexual harassment accusations against District Judge Samuel B. Kent (hat tip: several VC readers who pointed out the story to me).

At this point, it is difficult to tell whether the accuser's account is accurate or not. Undoubtedly, Kent has his own version of what happened. Nonetheless, her accusations are quite serious, and strengthen the case for a congressional investigation to determine whether impeachment is warranted.