Posted by Ilya Somin:
Judge Samuel B. Kent and the Case for Investigating Impeachment:
http://volokh.com/archives/archive_2007_10_21-2007_10_27.shtml#1193113667
Lawyer/blogger "Beldar" has [1]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 [2]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 -
something they didn't do. The [3]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 chose not to act on 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 [4]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)) .
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 [5]my first and most detailed post
on the subject).
References
1. http://beldar.blogs.com/beldarblog/2007/10/the-kent-reprim.html
2. http://volokh.com/posts/1191044678.shtml
3. http://uscode.house.gov/download/pls/28C16.txt
4. http://www.ca5.uscourts.gov/news/news/Judicial%20Council%20Order.pdf
5. http://volokh.com/archives/archive_2007_09_30-2007_10_06.shtml#1191044678
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