Albert Einstein (just call him “Al”[i]) is reputed to have said a lot of catchy things. One of them is this:
Keeping in mind what Al said, I write about Senator Chuck Grassley and Judge Alex Kozinski. Because it tickles me, I refer to them as Chuck and Alex.
On December 6, 2017 (keep this date in mind), Chuck introduced Senate bill S. 2195 that would compel the Chief Justice to appoint an Inspector General for the federal judiciary after consultation with the leaders in the House and Senate. See here. Chuck wants an unrepentant Inspector Javert to “conduct investigations of alleged misconduct in the judicial branch . . . .” This is so despite that fact that Chuck’s branch does not have an Inspector General.
In part, Chuck wrote:
[F]ormer Judge Samuel B. Kent, although charged with multiple counts of sexual assault, pled guilty to obstruction of justice. It took a criminal investigation by the Department of Justice to uncover his false statements made to his colleagues who were assembled to investigated him as well as substantiate the horrendous claims made against him.[ii]
Chuck’s proposal is both horrible as a policy and constitutional matter, and it is manifestly unnecessary as well. If you want the specifics of why I so say, read Anthony J. Scirica, Madison Lecture, Judicial Governance and Judicial Independence, 90 N.Y.U. L. Rev. 779 (June 2015). Scirica, who sits on the Third Circuit, is one of the most respected judges in the federal judiciary. He currently serves as chair of the Committee on Judicial Conduct and Disability.[iii]
On December 8, 2017, news broke (at the Washington Post) that Alex was accused of unnecessarily[iv] showing porn to a female law clerk and other unseemly behaviors of a sexual nature with other female clerks or externs. For Scott’s take on this recent matter, as well as Alex’s troubles in the past regarding racy material, read Judge Alex Kozinski and The Mad Cow.[v]
The coincidence between Chuck’s proposed legislation and the accusations against Alex, only two days apart, makes me think that Al’s anonymous God has a sick sense of humor. I fear that the #MeToo folks (who have already latched on to the accusations against Alex) and Senators like Ms. Gillibrand will reflexively push Chuck’s legislation. In addition to being ironic, that would be very bad for the federal judiciary and the country.
Richard G. Kopf
Senior United States District Judge (Nebraska)
[ii] Chuck’s description was incomplete. For a detailed history including the work of a judicial investigating committee into Kent’s conduct that ultimately lead to his plea of guilty for lying to that committee and the Fifth Circuit’s handling of this matter, read the Statement of Arthur D. Hellman to the House Committee on the Judiciary, pp. 6-10 (June 3, 2009).
[iv] If you deal with child porn cases, sometimes you have to view the images yourself and have a clerk or extern help you. See United States v. Campbell, 738 F.Supp.2d 960 (D. Neb. 2010) (varying downward to probation and relying upon an analysis prepared by an extern that “chartered” the relatively tame nature of what was technically child porn).
[v] Because I lack sufficient information, I remain agnostic about the claims predicated on sexual misconduct that have been asserted against Alex. That said, the statement of the primary accuser is heart wrenching for reasons other than her specific claims. It is not much of a secret that term (as opposed to career) law clerks, who normally serve only a year or two, are worked nearly to death by a few federal judges and ridiculed if those kids fail to live up to unreasonable expectations. For those few federal judges, their chambers become modern day sweat shops. But we sure as hell don’t need an Inspector General to address work/life balance.