Striking A Blow For Transparency

Lifetime appointments to the bench, the legitimate need to keep judges apart from the political hurly burly, and their own institutional insularity combine to make the conduct of the federal judiciary extremely opaque and difficult to hold to account. So it’s worth noting that on Friday, the Judicial Conference’s Committee on Judicial Conduct and Disability, which reviews cases of misconduct by federal judges, published two different decisions involving judicial misconduct where the essential issue before the panel was whether to make public the alleged misconduct or keep it cloaked behind the judicial trappings of secrecy and confidentiality.

In both cases, the committee opted in favor of openness. How it got there — and the backstory on both cases — is fascinating.

One of the cases involved then-U.S. District Judge Richard Cebull of Montana, whom you may remember as the sitting judge who forwarded this delightful email from his official account back in February 2012:

Normally I don’t send or forward a lot of these, but even by my standards, it was a bit touching. Hope it touches your heart like it did mine. A little boy said to his mother, Mommy, how come I’m black and you’re white? His mother replied, “Don’t even go there Barack! From what I can remember about that party, you’re lucky you don’t bark!”

After the Great Falls Tribune obtained and reported on the “touching” bestiality email, a national outcry ensued. Cebull, pictured above, was extraordinarily contrite, as these things go. He filed a misconduct complaint against himself with the Judicial Council of the 9th Circuit Court of Appeals. He wrote a letter of apology to President Obama in which he said, “Honestly, I don’t know what else I can do.” The answer to that question came about a year later when Cebull resigned from the bench.

By the time Cebull resigned, the judicial council had already adjudicated his case and prepared a written order. It found that Cebull had sent hundreds of other bigoted messages from his official email account, but also found him to be “good and honest trial lawyer, and an esteemed trial judge” who exhibited no bias in his rulings.

“The 9th Circuit council issued Cebull a public reprimand; ordered no new cases be assigned to him for 180 days; ordered him to complete training on judicial ethics, racial awareness and elimination of bias; and ordered him to issue a second public apology that would acknowledge ‘the breadth of his behavior,” the AP summarizes.

Cebull’s resignation rendered those punishments moot. But it also prompted the judicial council to pull back its written order, which was scheduled for publication.

At this point, I should introduce the hero of this story. Cebull wasn’t the only one to file a misconduct complaint over his racist email. Several others did, too, including, remarkably, Theodore McKee, the chief judge of the Third Circuit Court of Appeals, all the way across the country in Philadelphia.

McKee, left, would not let the case go. He was displeased with, among other things, the 9th Circuit Judicial Council’s decision not to publish its order and its findings of misconduct. He asked for a review of that decision.

The council issued a second, watered-down order. McKee was still not happy with the result, expressing “concern about the propriety of a Judicial Council issuing a final order making detailed findings of extensive judicial misconduct and then, after the subject judge retires, sua sponte vacating its own final order and issuing a new order that effectively conceals the judicial misconduct that previously had been identified and detailed.”

McKee elevated his complaint to the Judicial Conference’s Committee on Judicial Conduct and Disability, which reviews cases nationally. The committee agreed with McKee and on Friday issued its order. “The imperative of transparency of the complaint process compels publication of orders finding judicial misconduct,” the committee ruled.

Its order included a copy of the original judicial council order, with all the details of the case. You can read it below. Without McKee’s effort, the breadth of Cebull’s misconduct, and many of the details surrounding it, would have remained basically forever unknown.

The second case was less explosive than Cebull’s, but unlike Cebull’s there was no public awareness of it at all before the committee issued its order on Friday, which TPM was the first to report on.

Boyce F. Martin Jr., a judge on the 6th Circuit Court of Appeals, resigned last year. His and his wife’s cancers were given as the public reasons for the resignation. A liberal lion with a long track record of opposing the death penalty, Martin, pictured above, was a Carter appointee.

We now know that in addition to cancer, Martin was confronting allegations of questionable travel expenses lodged by the chief judge of the 6th Circuit. Whether the chief judge was the originator of the complaint or initiated proceedings after questions were brought to her attention is not clear from the record.

Before the Second Circuit’s Judicial Council, which was referred the case, could investigate and render a decision, Martin resigned and agreed to pay back all his travel expenses from the period in question. Then Martin moved to block the judicial council from mentioning him by name in its public order on the case, or from mentioning that it referred the case to the Justice Department’s Public Integrity Section for review.

Again the Judicial Conference’s Committee on Judicial Conduct and Disability ruled in favor of transparency and directed the Second Circuit to publish its order, with Martin’s name included.

Two very different cases, but the principle of openness and accountability upheld in both. That it took a chief judge of one of the appeals courts repeatedly forcing the issue — in a case involving no less than racist sentiments toward the president and his late mother — shows how difficult and unusual this kind of transparency is.


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