364. Fifth Circuit sleaze

This blog has recently been sadly remiss in documenting the many judges in this great land who put their reputations on the line – and, oftentimes, succeed successfully to achieve success blowing them up – merely for the honor of a mention here.

My friends, I offer no excuses but when elected I will immediately fire somebody for it.

Samuel Kent, whom we met in post 322, was indicted at the end of August.  His career demonstrated just how much grit and determination is necessary for a federal judge to risk consequences for his actions.  Merely being a contemptible  drunk who regularly abuses both lawyers and staff wasnt nearly enough.

You wont be surprised to learn that the out-of-district judge presiding over the prosecution has issued a gag order that would be wildly unconstitutional if the defendant were anyone but a fellow judge.  It actually bars witnesses from talking about their own lives.

The judge, you see, carefully balanced the reputation of the judiciary against the publics right to know what its government is doing.  Hmmm.  But I like it that the judge relented to the extent of allowing court personnel to divulge dates of hearings.  Now thats balance!

Meanwhile, unbelievably, the indicted judge continues to sit on the federal bench.  James Gill of the Times-Picayune reported that, as of late last month, there was no move to impeach him or even send him on another paid vacation.

The Fifth Circuits Judicial Council did come down hard on another judge, Thomas Porteous, sternly ordering him to take a two-year vacation with the following findings:

Judge Porteous repeatedly committed perjury by signing false financial disclosure forms under oath … 

Judge Porteous repeatedly committed perjury by signing false statements under oath in a personal bankruptcy proceeding … This perjury allowed him to obtain a discharge of his debts while continuing his lifestyle at the expense of his creditors. …

Judge Porteous wilfully and systematically concealed from litigants and the public certain financial transactions by filing false financial disclosure forms …

Judge Porteous violated several criminal statutes and ethical canons by presiding over In Re: Liljeberg Enter. Inc. v. Lifemark Hosps. Inc., No. 2:93-cv-01784, rev’d in part by 304 F. 3d 410 (5 Cir. th 2002). In that matter, which was tried without a jury, he denied a motion to recuse based on his relationship with lawyers in the case, in violation of 28 U.S.C. § 455 and Canons 3C(1) and 3D of the Code of Conduct for United States Judges. In denying the motion, he failed to disclose that the lawyers in question had often provided him with cash. Thereafter, while a bench verdict was pending, he solicited and received from the lawyers appearing before him illegal gratuities in the form of cash and other things of value in violation of 18 U.S.C. § 201(c)(1)(B). …

Judge Porteous made false representations to gain the extension of a bank loan with the intent to defraud the bank and causing the bank to incur losses…

Heres the House Judiciary Committee harumphing about him.

Interestingly, a number of other Fifth Circuit district judges actually dissented from the Judicial Councils suggestion that taking bribes on the bench might be an impeachable offense, writing an opinion revealing a good deal about themselves, and not just in their display of there-but-the-grace-of-God solidarity:

The Framers of the Constitution provided that federal judges, both of the supreme and inferior courts, shall hold their offices during good behavior and shall be removed from office only upon impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors; …

Thus, the founders intended for judges to have a high degree of independence and to be removable only upon constitutionally specified grounds; they did not intend for judges to serve simply at the pleasure of a majority of the Congress.

The Constitution doesnt say that judges can only be removed from office for treason, bribery, or other high crimes and misdemeanors.  Thats the Article II standard for executive branch officers, who serve at the will of the electorate – the extremely high standard required for reversing an election.

The standard for removing a patronage appointment in the judicial branch is the much lower one of  “good behaviour”, for the obvious reason that removal by impeachment means only that a judge returns to the other side of the bench and resumes a career in a profession the practice of which many of us dont actually believe is inherently disgraceful.

The dissenting judges were actually relying upon an act of constitutional interpretation made by the U.S. Senate in 1805.  Can you think of any other context in which judges defer to the constitutional rulings of Congress?

But I especially love the phony choice between “high crimes and misdemeanors” and “serve simply at the pleasure of a majority of the Congress.”  What other option could their possibly be?  (Surely not good behavior!)

When political spin artists present issues in such outrageously dishonest ways, they usually do so with a wink to journalists and other insiders.  When judges do it, especially in a memo circulated only to other judges, you have to wonder if they might actually have convinced themselves.  I have to admit, though, its probably easier than thinking about what youre writing.

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