A federal judge in Alaska has resigned according to CNN and others. His departure, on little notice, brings to an end an investigation by "The Judicial Council of the Ninth Circuit." The report of that group is an intriguing peek at the process by which federal judges can be subject to discipline despite their tenured status. I have enjoyed some animated debates regarding tenure over the years.
A local professor took issue with my characterizing federal judges as "appointed for life." He countered that the Constitution says no such thing, but instead says judges shall "hold their Offices during good Behaviour." U.S. Const., Article III. While that is certainly true, In the last 250 years only 15 were ever impeached and of those only 8 were convicted. Whether the document says "life" or not, I stand on that characterization.
So, why does a judge with a lifetime appointment resign? The job pays $243,000 per year and appears to keep up with inflation. Retirement is allowed with 15 years of service. In all, it seems a fairly reasonable occupation. Stressful? likely. Challenging? undoubtedly.
The resignation this week is perhaps related to "The Committee’s investigation." It included review of 21 witness interviews and "more than 700 pages of text messages." The allegations were centered on the judge creating "a hostile chambers environment for his law clerks." They were broad in some ways, but largely centered on his attention for one law clerk.
The broad issue is the judge lacking any "filter as to the topics he would discuss with the clerks." The judge believed that discussions with staff of "dating life, his romantic preferences, his sex life, the law clerks’ boyfriends and dating lives, his divorce, " and more were fair game for conversation. He used course and derogatory language, including "rating" people as regards his perceptions of whether they were attractive to him. The report labels some language as "vulgar."
His alleged choices of phrases in the report are interesting but not worthy of repeating. In short, some of the statements are perhaps reminiscent of boorish repartee among high school students or truck drivers. Yes, I have been each of these. No, vulgarity and harassment are not any more appropriate in those settings than in a federal court, but perhaps rude and crude are more anticipated in truck stops, locker rooms, and the like. Not appropriate, but perhaps less shocking.
Some have noted perceptions that the judge was "insecure," and so stated in some interactions. Insecurity and insufficiency sometimes walk hand in hand. Others perceive that he set out to groom a particular law clerk. In all, the quoted statements by the forty-something judge are well beyond what should occur in any work setting.
The committee noted that despite being new to the bench, this judge had training about harassment and the workplace in previous employment. Even without that, any lawyer would recognize the failures noted here.
One law clerk was apparently a special matter of the judge's attention. The two exchanged hundreds of pages of texts, "only a small fraction of which had any relationship to her legitimate job duties." The texts demonstrate a lack of boundaries and inappropriate language, innuendo, and topics. The committee notes that there was repartee and that clerks "humored" the judge's excesses. It noted that uncomfortable subordinates may fear repercussions, denial of future recommendations, and more from a supervisor. It is no defense that staff and employees seemingly tolerate such behavior or fail to object.
After leaving the clerk position, this lawyer began working for the United States Attorney's office. The judge invited the clerk out for drinks and to say the situation devolved is perhaps an understatement. The committee concluded that the Judge's "version of events, ...differ(ed) markedly from the law clerk’s." In his version, the law clerk instigated a physical interaction, but the law clerk disagreed. The report notes that each was intoxicated.
Eventually, another event brought the two together again socially. The clerk felt the judge was "hitting on me openly." They later spoke privately in his truck, then his apartment, and eventually the bedroom. The clerk later testified that the interactions became physical and the clerk was uncomfortable and felt pressured.
The Judge denied there was any "physical or sexual interactions with the law clerk at any point." Notably, the two persisted in texting thereafter. The Committee concluded "the law clerks and other witnesses were credible and that (the) Judge ... had been dishonest with the Committee."
Eventually, the Judge "admitted ... that his statements to the Committee—specifically his statement that no sexual interaction occurred...were not truthful and that he lied to the Committee."
In his response, the judge characterized these issues as simply an "overarching trend of me treating employees as friends." He conceded he "allow(ed) my personal and professional struggles to become topics of conversation." And, he stressed that those office "relationships did not develop due to any sinister or illicit intent.” The committee aptly noted that "intent" is not pertinent or relevant.
The Judge explained that his service began during the pandemic, and he therefore "only had a few weeks to observe his colleagues before the courthouse began shutting down." He noted that for his first year on the bench, he was isolated due to staff being absent from the courthouse, and the particular clerk was “often the only person I would interact with face to face.”
The findings were succinct, noting "misconduct by"
(1) subjecting his chambers staff to a hostile work environment, including subjecting them to unwanted, offensive, or abusive sexual conduct and harassment, and treating them in a demonstrably egregious and hostile manner;(2) sexually harassing a law clerk during her time as his law clerk and in the weeks after she departed her clerkship by continuing a sexualized relationship;(3) engaging in inappropriate sexual and verbal encounters with a law clerk; and(4) being dishonest with the Committee through his written responses to the allegations in this complaint and during his interview.
It is fair to say that any of these, alone, is beyond the pale. That there are four such conclusions is indeed troubling. When an investigation reaches the conclusion that a judge has been "dishonest," that is of critical importance regardless of the allegations or accusations.
The pandemic? Observing other judges? It is interesting that anyone might claim to need a role model to observe in order to avoid the language, behavior, and interactions detailed in the report. Does one need a mentor to learn not to use crass and vulgar language? Is there really a judge out there that needs a mentor judge to avoid such behavior? Is a role model needed to keep a federal judge out of bed with a subordinate?
There were multiple Committee recommendations made regarding staffing, office behavior, counseling, advising, and more. Innumerable hours were likely invested by the committee interviewing the many witnesses, and reviewing the voluminous texts. In all, a great deal of time and money was invested in this process, perhaps to some extent due to the misrepresentation and denial.
The Report notes that the judge here "often hedged, cast blame on others, claimed not to remember significant details of the events at issue in this investigation (despite written documentation in his possession detailing many of the events), and otherwise provided vague responses to questions." In short, the investigation seemingly reached the truth, but through an extended an unnecessary process.
The report cites the Code of Judicial Conduct, statutes, and more. It focuses on the conduct and on the conclusion that the judge "remains strikingly unaware that he was the source of all these issues." The conclusion seems to be that even as the investigation concluded, this federal judge did "not squarely acknowledge that his interactions with the law clerks had no legitimate place in any workplace, let alone a federal judge’s chambers."
Whether those are failings of comprehension or of acknowledgment will likely remain unknown. The judge is departing. Would the conclusions have been sufficient to result in removal from office? That question may linger. Nonetheless, the report is making the cover of virtually every news source on the Internet. The allegations are salacious and egregious. They demean the judge as well as the bench of which he was a part.
The story will fade in time. Some will forget the judge's name and he will likely move on to some comfortable position elsewhere. But, it is likely, that the circumstances and conclusions will resonate for years. The reputation and character of the court have been tarnished, and people will perhaps remember that.
But, more importantly, a group of professionals will deal with their untoward and unfortunate service in that court. They were treated badly, and no apology will change that.
