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.

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