Friday, September 05, 2008

Judge Indicted

Per Article III of the Constitution, federal judges "hold their offices during good behaviour," a term generally taken to mean that they have life tenure. Might there be a difference? That issue is raised by the indictment of U.S. District Judge Samuel Kent for, among other things he is alleged to have done to an office worker, trying to force her to perform oral sex on him. Yet, it appears that despite the grand jury's finding of probable cause to indict, Judge Kent will continue to hear cases while his trial proceeds. Rep. Sheila Jackson, who, like Judge Kent, is from Texas, and serves on the House Judiciary Committee, has said: "We want to proceed on the principle that you are innocent until proven guilty."

Presumably the action that Rep. Jackson and her colleagues are delaying is impeachment and removal. Remarkably, at least one federal judge, Walter Nixon, refused to resign his seat on the bench even AFTER having been convicted and sentenced to prison, leading to impeachment, removal, and a Supreme Court case.

One might argue that even if Judge Kent is ultimately acquitted on the ground that there is not proof of guilt beyond a reasonable doubt, he STILL could be removed for bad behaviour (British spelling in the Constitution!) if the House and Senate found him guilty by some lower standard, such as a preponderance of the evidence. Think of OJ Simpson being found civilly liable after his acquittal on criminal charges.

But putting that issue aside, what about cases being tried now? Rep. Jackson may be right that, on separation of powers grounds, Congress should not intervene---either in general via a statute or in specific cases via impeachment---to remove or even suspend an indicted-but-not-yet-convicted federal judge. However, the Judicial Conference or some other judicial body could certainly develop its own rules in the interest of protecting the appearance of impartial justice. A reasonable rule would be that, absent extraordinary circumstances, judges indicted for felonies should have their cases reassigned pending resolution of the charges.

On the merits, I should add that this is all quite a shame, as Judge Kent has authored some amusing decisions (e.g., this one) over the years.

Posted by Mike Dorf