JUDGING CRIMES

Here's one of the accusations against Texas federal judge Samuel Kent with regard to his former case manager, Cathy McBroom:

McBroom was summoned to the judge's chambers on Friday, March 23, at about 3 p.m.

Her hands were full of legal papers when the judge — a former high school athlete who is more than 6 inches taller and at least 100 pounds heavier — asked for a hug.

She told him she didn't think that was appropriate, but reluctantly approached.

The judge grabbed Mc-Broom, pulled up her blouse and her bra and put his mouth on her breast. Then, Kent forced her head down toward his crotch.

As McBroom struggled, Kent kept telling the married mother of three what he wanted to do to her in words too graphic to publish. The papers fell to the floor. The pet bulldog Kent kept in his chambers began to bark.

The incident was interrupted by the sound of footsteps from another staff member in the corridor, and the judge loosened his grip. As she left, the judge said McBroom was a good case manager and then made suggestions about engaging in a sexual act.

McBroom ran out crying.

McBroom filed a complaint with the Fifth Circuit's Judicial Council, which conducted an investigation, held some kind of hearing, and apparently found the accusation substantiated.  "Apparently" because the Fifth Circuit order in the matter is so extremely - and, of course, deliberately - vague. 

After McBroom came forward, other women did likewise: "[Felicia] Williams and at least three other women later gave statements to 5th Circuit investigators regarding Kent's alleged abuse of employees."  Ms. Williams, Kent's former case manager,

told the [Houston] Chronicle that over the years she frequently had seen Kent appear inebriated at work after long lunches with lawyer friends, was regularly asked for "hugs" and subjected to lewd remarks.

The judge said he could "service me when my husband was being treated for prostate cancer," Williams said. "He told me sexual dirty jokes, and (I) was expected to listen to his rude comments regarding other people."

I can't tell if the Fifth Circuit considered these additional allegations.  At any rate, the court's Judicial Council came down on the judge like a ton of bricks.  It placed him on a four month paid leave of absence. 

That's right, the judge's punishment is to accept $55,000 - one third of his annual salary - while relaxing on the beach.  (How many of you just asked: Where do I sign up?)

The Houston Chronicle, and especially its columnist Rick Casey, has been all over the story and doing a superb job, but the story has received virtually no attention in the national media.  I couldn't find any stories in the Washington Post, New York Times,  LA Times or USA Today, although it's made the Wall Street Journal's law blog, if not the paper itself.  You have to read the hometown paper or the Volokh Conspiracy to find out what's going on.

But this isn't a case about a local crime, or the misbehavior of a single local official.  The key thing isn't what Judge Kent did - and the Fifth Circuit's Judicial Council's order certainly tells us that he did something, even if we don't know what, exactly - but that he was allowed to do so much.  For instance, he was allowed to do everything he did to all those other women before McBroom.

Judge Kent had to go to the extreme of - apparently - committing an out-and-out felony against a person willing to risk her good federal job (all jobs in the federal judiciary are good jobs) by talking to the newspaper before the barest possibility arose of his facing negative consequences.

The institution of the federal Judicial Councils, it's hardly necessary to point out, exists to prevent discipline of federal judges by creating an illusion to the contrary.  It exists as a trash receptacle.  It has no power to do anything except attempt to shame a person who wouldn't have gotten to that position if he retained any ability to feel shame - rather like trying to appeal to the conscience of a sociopath.  Punishment by the Judicial Council is exactly the same as non-punishment by the Judicial Council, except the former involves less work.

Even more than that, though, Judge Kent thought he could get away with sexual violence because he's gotten away with abusing his power so often in the past, and not just against female staffers, as my old ethics teacher Steven Lubet documented six years ago.  

Mary Flood, the Chronicle's legal blogger, refers to Judge Kent's "national reputation for training his biting wit on lawyers".  For a judge to train "biting wit" on lawyers who appear in front of him is very similar to a prison guard exercising his knack for hilarious practical jokes on the job, with this difference: the guard has power only over the prisoner, while the judge holds both the lawyer's career and his or her clients hostage. 

A judge can be "bitingly witty" to lawyers for one reason and one reason only: because he possesses the power to hurt the lawyers personally, and hurt their clients for years or decades to come, even put them out of business, if the lawyer should respond with anything but "heh heh." 

Imagine what a riot Judge Kent would be as a night orderly in a nursing home.

In short, Judge Kent's national reputation isn't for "biting wit" - it's for sadistically abusing his power.  Even if the lawyers themselves are too self-protective, and protective of their clients, to say so in public, there's no reason for a non-practicing lawyer such as Ms. Flood to use such euphemisms.  Judge Kent is a person who cannot be trusted with power.  He evidently suffers from a serious mental illness - the delusion that his power is unlimited.  He has no business being on the bench.

One of the truly shocking elements of the story, though, is the joint statement from three Congressmen on the Judiciary Committee.  They responded to a query about possible impeachment by referring to the possibility of criminal charges and then adding:

"While the alleged conduct is disgraceful, it is, nonetheless, the practice of the House Committee on the Judiciary to defer formal action until available intermediate remedies have been pursued," the congressmen said.

A felony prosecution is an intermediate remedy?!?

The Constitution says that federal judges "shall hold their offices during good behaviour".  That's not lifetime tenure.  Nor does that require a showing of high crimes or misdemeanors for impeachment, despite two centuries of lamentable precedent to the contrary.  It would be crazy to hold a minor appointed official to the same high standard required for nullifying a presidential election, and the Constitution didn't do so, although craziness has been a distinguishing hallmark of our attitude toward federal judges at least since Samuel Chase.

If Kent were impeached, all that would happen would be that he would return to the practice of law.  That's the horrible, dreadful punishment that the three members of Congress consider more serious than a felony prosecution. 

Now why, do you suppose, would members of Congress would be so reluctant to establish a precedent for removing a public officeholder from his (and I do mean "his") position merely for committing sexual assault?