Alaska Judge Scandal & Impeaching Two Justices

University of Pittsburgh Law School. So House Democrats in twenty twenty one had filed a complaint against Chief Judge William Pryor of the Eleventh Circuit and District Judge Corey Mays of the Northern District of Alabama into the hiring of this clerk. Tell us about the controversy and what ended up happening well.

And the chief Judge of the second Circuit, to which the proceeding was transferred, found that they did all they were required to and dismissed the complaint, and the Judicial Council of the Circuit affirmed that dismiss So the proceeding was completed, but the Committee of the Judicial Conference of the United States what it should be reopened, and that's what gave rise to one of the requests at the March meeting of the Judicial Conference to look into that

review process. So we have two separate issues here, one that involves the Committee on Codes of Conduct and the other that involves the Committee on Judicial Conduct and Disability.

and giving guidance based on the Code of Conduct. It is not otherwise in the business of telling judges how to run their chambers or here the two overlap a little bit, But for example, is it enough that the judge asks the clerk Is there anything you've done in the past that would embarrass you or me if it came out now, or should the judge carry out is it her own investigation? Now? I don't do much social media myself, so I'm not really the person to talk

about that in detail. But my sense is that a thorough background investigation of that time will be very time consuming and laborious, and I'm not sure a judge should be expected to do that. A judge should be able to ask the law clerk if there is any such material in the works past, and take the clerk's word about that. But the Committee on Codes of Conduct might

decide that something something more than that is required. But their task at this point is to consider the process by which judges hire their law clerks, law clerks who may have something in their past that cast doubt on the fitness of the clerk presence service as a law clerk to a federal judge.

Figuring out how thorough the investigation should be and whether there are any particular things a judge should do in checking on a law clerk is one of the questions that the Committee and Codes of Conduct will now be looking into.

student gets. Because an important part of legal education, important part of legal reasoning is listening to other views and processing them and responding to them in a professional way. So a judge might think the person in his chambers should be somebody who's gotten a legal education that is

not tainted in that way. And you know, maybe we should back up a minute, because it really relates to both of these topics very were Judges today have very very heavy workloads, and they're very heavily dependent on their law clerks. So it's important that these clerks have gotten

the best possible training. So as I say, if the judge believes that some of the practices at a particular law school diminish the quality of the training, I think that would be a legitimate job related reason for not hiring students from that law school, even though it is in a sense to the students. Although you know, if you look at it more broadly, you talk about boycotts. No, there are many judges who are their law clerks only from let's say top fourteen or top twenty, whatever it

is law schools. Are they boycotting the other one hundred and eighty? I don't think we would ordinarily say that, would say that the judges decided, rightly or wrongly, that the most effective way of finding good law clerks is to stick with a small number of elite law schools where they know some faculty and can rely on recommendations. So if the reason is related to the carrying out of the judge's adjudicated responsibilities, I'm not sure I see a problem in them.

that when I think, would be more controversial. As I say, I think you can make a case that that is legitimate within the code of conduct. But other people might say that it looks like using the judge's position to advance the judge's personal interests, which is one of the things that the code explicitly prohibits. So it's a question

of how you view that. Is it a way of improving the legal profession, which is something the judge is explicitly allowed to do under the code, or is it advancing a personal interest, which is something the judge is explicitly prohibited from going.

judge in Alaska over allegations of sexual misconduct. A federal judge in Alaska Joshua Kindred resigned and could face impeachment after an investigation found that he had an inappropriate sexual relationship with a female law clerk, and that he created a hostile work environment and appeared to have no filter in his discussions with clerks, discussing his romantic preferences, his sex life, his divorce, the law clerk's boyfriends and dating lives,

on and on. The investigation by the judiciary into the Trump appointee resulted in a one hundred and five page report with more than one thousand pages of exhibits, including seven hundred pages of text messages between the judge and his clerks. The inquiry could lead to the reopening of multiple criminal cases that came before Kendrick during his more than four years on the bench. I've been talking to legal ethics expert Arthur Hellman, a professor at the University

of Pittsburgh Law School. So there was this outrageous conduct, but it took almost two years after the chief Judge learned about it for the judiciary to complete its investigation. And in those two years there were criminal cases that came before Kindred, And now these findings could lead to the reopening of many of those cases.

that is a little hard to understand. What maybe is that the people they talk to were initially reluctant to speak out, and if that's so, it really raises some very troubling issues because, as you know, it was it five or six years ago now, the Judiciary completely revamped its procedures regarding the workplace in the wake of the accusations against pulling the judge Alex Kozinski, and I have to say I thought they had done a pretty good job and that they were really trying to create, as

Chief Justice Roberts put it, an exemplary workplace in every judicial chamber, and particularly in the Ninth Circuit, which has been a leader in this as in so many other administrative aspects of the federal judicial that this took that long to get resolved is very troubling, and I think it does call lass for another look at how the judiciary is handling this very important aspect of the administration of the federal courts.

informed of all the circumstances. So those are the elements of the test. It's an objective test. Again, it's a reasonable person, but not a person within the judiciary, because the courts have said that people within the judiciary may be too inclined to discount the possibility that the judge would look partial or biased. So you look at the

reasonable person outside the judiciary. But at the same time, the reasonable person is fully informed of the circumstances, and so the judge has to put himself or herself in the position of that reasonable person.

You mentioned the repercussions going forward. I think one of the most interesting questions and important questions about the Alaska judge is how did a person get to be a federal judge. I mean, this is a young guy, and this kind of behavior seems to me not the sort of thing that suddenly happens that a person suddenly engages in, and you would think that there would be some evidence

of this in his career and his behavior as a lawyer. Now, as you know, before somebody is appointed to the federal bench, there's a very intense investigation. As it's more than one. There's the FBI, there's the White House, there's the ABA. The FBI in particular is very thorough. For example, I've gotten calls about people who worked for me briefly thirty years earlier because the nominee is required to list every

person he or she has ever worked for. So how did Joshua Kindred get through that process where there are no warning signals in any of the conversations that FBI agents or the ABA committee members had members of the Alaska legal community that would have alerted them to the very real possibility, which turned out to be the reality that this that you or just did not have the

temperament to be a federal judge. Now, by the way, you had a similar failing twenty five years ago with Judge Fortius, who was impeached and convicted for actual bribery and other criminal activity that he had engaged in for many years in Louisiana and which has to have been known by many of the people in Louisiana legal community. That was another failure in my view, the vetting process, as far as I know, nobody has ever looked into

or written about. But I think there's a serious concern here that the vetting process at the nomination slash confirmation, and it's really a nomination, you don't expect the Senate Judiciary Committee to carry out the kind of in depth investigation that the FBI, with all of its resources can do or that the a BA can do with its members in every state and every legal community. Those two organizations have the resources to carry out in depth investigations,

and we really have to depend on them. In a likelihood they missed this. You know, it's possible that you know, that he had a complete personality change on the belt, and there's some suggestion that the isolation in the COVID lockdowns had some influence. But you know, isolation doesn't turn a man into this, this course speaking individual who harasses

women in the way he did. You know, even to read about his behavior, it's an embarrassment, and behavior of that extreme, it seems to me doesn't start overnight or when a man takes the oath as a federal judge. To have been some signals in his earlier behavior that

should have been called. So I would hope that one of the consequences of this very sad and unfortunate proceeding is that there will be a look not only at the procedures within the federal judiciary we haven't talked about, but within the executive branch and the vetting of judicial nominees.

Chief Judge. And I don't know if the Chief Judge addedly conveyed the message that if federal judge is misbehaving, I want to know about it. I will take action and I will make sure there's no retaliation.

I'm June Grosso. When you're listening to Bloomberg, New York Representative Alexandria Zeo Cortes has filed articles of impeachment against Supreme Court Justices Clarence Thomas and Samuel Alito for what she said was their failure to report gifts and refusal to recuse from cases in which they were conflicted. Progressives and others have criticized both justices over reports they accepted vacations from wealthy people and failed to recuse from cases

despite conflicts they said were created by their spouses. The success of either resolution against arguably the Court's two most conservative justices is unlikely given the Republican control of the House. The New York Democrat and Maryland Democratic Representative Jamie Raskin wrote to Chief Justice John Roberts on June twentieth, urging him to investigate Thomas and Alito. Democratic senators have sent similar requests to the Chief Justice. Of course, the Chief

has taken no action. Joining me is an expert in impeachment. Frank Bowman, a professor at the University of Missouri Law School, so tell us about the articles against Thomas well.

a variety of matters based on three things. The first article has to do with his receipt of gifts from Harlan Crow and other folks broadly associated with the American Enterprise Institute and other conservative entities, the argument there being that these entities at least file Amiekus briefs in matters that appeared before the court, even if they're not parties, and thus they have an ongoing interest in the outcome of cases in the court. The second article has to

do with Missus Thomas's professional activity. She has, over the years had various consulting arrangements or consulting entities which are through interwoven in the conservative legal political movement, and various folks in that constellation of people and enterprises and think tanks and so forth have funneled money to Jenny Thomas through her entities, And here too, the argument is that Thomas should have refused himself in any matters in which

any of the various entities that have funneled money to his wife might have filed a brief more habit some sort of interest, and the third one is the one which probably has the most bite to me, and that's one in which the argument is that Justice Thomas should have recused himself essentially in all the cases that had anything to do with Trump's effort to overturn the twenty twenty election results, because his wife was involved in the

Trump coup attempt. Now, the degree of her involvement is a little bit unclear, but she certainly was actively advising various people in clinical staff and others about how to proceed during Trump's effort to overturn the election between November

twenty twenty and January twenty twenty one. And the argument there is, you know, your wife, Justice Thomas, is actually, you know, directly involved, albeit not at the center, but directly involved in this effect conspiracy to overturn an election, And you have no business ruling on the merits of any cases involving in involving that coup, whether they involve Trump, whether they involve neither other people were charged, or just the general issues that are raised by that coup attempt,

because there's certainly a reasonable inference to be drawn that you're not impartial in these cases because a your wife was directly involved in this she was potentially at least a witness, indeed was a witness in front of the January sixth committee. Arguably she could have been a defendant. She has not been charged, of course, but she was certainly potentially a defendant in any case charging a criminal conspiracy arising from January sixth in its antecedents. So those

are the three arguments against Thomas. I think the first two are at least undeveloped. The third one is a stronger case for recusal certainly, and thus maybe as fractionally stronger case for impeachment.

or the effort to overturn the twenty twenty election. That, by extension is said to indicate that Lee to himself had some sympathy with the effort to overturn the election, and therefore you have to refuse himself and so forth and so on. And the two problems with that, I mean, one is that the facts as to who flew what flags, when, and you know why, are extremely unclear, and you don't go around impeaching people on webs of supposition like that.

And the second issue is a more difficult constitutional one. We've only impeached one Supreme Court justice in our history, and he was acquitted of Samuel Chase in eighteen oh four eighteen oh five. And Chase was essentially an impeached for being a vocal Federalist and therefore an opponent of Thomas Jefferson's Republicans, and of saying and doing some things on the bench that suggested he had a very strong

affinity for the Federalists. And he was essentially impeached for statements that he made from some rulings he made in some cases, but the real argument was that he was an ardent federalist and was letting that effect are his rulings, his statements, and he was acquitted by the Senate. And we've generally thought the meaning of that acquittal was that Supreme court justes and other judges should not be impeached

for their opinions. Now, they certainly could be impeached if they were overtly basing their rulings on partisan political affinity, and there was they ruled for Republicans because their Republicans are against Democrats, because of Democrats. But there was no proof that that was true in just Jase's case, and the Senate finally concluded not going tompeach people just because, you know, of the other party were appointed by the

other party. Indeed, there were arguments in that impeachment. One Center basically stood up and said, no, we we think and this is a Remember this is very early in the Republic, not quite twenty years after the Constitution has been ratified, and weren't quite sure how we were going to treat impeachments. But the congressman stands up and says, no, we think that impeachment is to be used for precisely

this purpose. You know, you people have bad opinions, and we're going to get rid of you to put in your place. This is Jason, others like you, people who have good opinions. And that view was essentially rejected, and ever since we just don't have impeached justices for their opinions. Coming back to Justice Alido, you know, has he perhaps behaved intemperately at times? You bet, in my view, But

you know, has he in any provable way acted? Can we prove that he ruled in a particular case based on his partisan political affinity rather than you know, he's genuinely held jurisprudential convictions? Well, I don't think so. And so I think the article against him is both factually weak because it's based on disputed facts, and I think it's constitutionally extremely extremely thin, if not non existent.

not even going to investigate the allegation. Now, I think that, you know, there may be time when it's clear to a majority of remembers the House that the Senate perhaps is not going to convict or is unlikely to convict on a particular set of impeachment allegations, but nonetheless makes a logical and constitutional sense to embark on an impeachment inquiry into the House because it gives you an opportunity

to investigate, to bring forward facts about official wrongdoing. And I think that in essence the justification, and certainly for the first Trump engagement, where it was at least reasonably probable that the Senate would not convict, but the Democrats felt, at a minimum, we need to use the special powers of investigation that arise in an impeachment situation to unearth the facts regarding Trump's and connections with Ukraine and his effort to use Ukraine to secure good on his political

pont I think that's arguably justifiable, even if you're not going to get a conviction in the end. But in this case, not only do we know that the Senate would never convict either Alito or Thomas, we know that the House is presently constituted isn't even going to open an investigation into these allegations. I think, particularly when the

allegations are themselves I think constitutionally pretty weak. As I said, I think the Alito case is in the non existent constitutionally the case made against Thomas, particularly the first two articles I think are very very tho and the third article is borderline. I think it makes very very very little sense to launch into impeachments where you're not even getting an investigation. I personally, I disapprove of using a constitutional mechanism as serious as impeachment as a means of

political signaling or it has no other function. I think that trivializes impeachment, and I think trivializing impeachment is itself dangerous, rapidly reaching that point if we haven't passed it in days gone by, certainly in the days of my relative youth,

you know, somebody brought an impeachment allegation. You know that was serious business, and people who pay the content in national government picked up their ears and said, Mogley, if you know this, if somebody is seriously maintaining that this or that conduct by an officials impeachable, well that's something

we ought to pay attention to. We ought at least listen to the to the case for impeachment, impeaching people or you know, filing impeachment resolutions when it can't accomplish anything. Not even getting an investigation seems to me a very bad idea. It just trivializes the mechanism of impeachment. It creates a situation where where nobody even cares, and I

think that's bad. We've already gone a long distance to rendering impeachment effectively useless against official misconduct, and I think this kind of thing goes further in that direction.