WEBVTT - Alaska Judge Scandal & Impeaching Two Justices 0:00:03.200 --> 0:00:08.000 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:11.360 --> 0:00:14.680 The Federal Judiciary is considering whether there should be more 0:00:14.760 --> 0:00:19.400 guidance for judges about hiring law clerks after two judges 0:00:19.480 --> 0:00:22.880 hired a clerk who was reported to have sent racist texts, 0:00:23.239 --> 0:00:25.680 and that clerk then went on to get a clerkship 0:00:25.760 --> 0:00:29.240 with Supreme Court Justice Clarence Thomas joining me is an 0:00:29.240 --> 0:00:32.560 expert in legal ethics. Arthur Hellman, a professor at the 0:00:32.680 --> 0:00:37.680 University of Pittsburgh Law School. So House Democrats in twenty 0:00:37.720 --> 0:00:41.680 twenty one had filed a complaint against Chief Judge William 0:00:41.720 --> 0:00:45.920 Pryor of the Eleventh Circuit and District Judge Corey Mays 0:00:46.080 --> 0:00:49.600 of the Northern District of Alabama into the hiring of 0:00:49.680 --> 0:00:52.640 this clerk. Tell us about the controversy and what ended 0:00:52.720 --> 0:00:53.840 up happening well. 0:00:53.920 --> 0:01:01.959 The controversy centers around the investigations that judges Prior and 0:01:02.120 --> 0:01:06.400 May's the circuit judge and the district judge carried out 0:01:06.640 --> 0:01:11.319 with respect to this individual. Because I understand it, the 0:01:11.440 --> 0:01:17.080 question is whether they adequately vetted her before hiring her. 0:01:17.480 --> 0:01:22.520 And the chief Judge of the second Circuit, to which 0:01:22.720 --> 0:01:28.320 the proceeding was transferred, found that they did all they 0:01:28.560 --> 0:01:33.400 were required to and dismissed the complaint, and the Judicial 0:01:33.440 --> 0:01:38.200 Council of the Circuit affirmed that dismiss So the proceeding 0:01:38.319 --> 0:01:42.240 was completed, but the Committee of the Judicial Conference of 0:01:42.280 --> 0:01:45.640 the United States what it should be reopened, and that's 0:01:45.680 --> 0:01:50.080 what gave rise to one of the requests at the 0:01:50.120 --> 0:01:54.320 March meeting of the Judicial Conference to look into that 0:01:54.480 --> 0:01:57.840 review process. So we have two separate issues here, one 0:01:57.880 --> 0:02:01.760 that involves the Committee on Codes of Conduct and the 0:02:01.800 --> 0:02:05.600 other that involves the Committee on Judicial Conduct and Disability. 0:02:06.000 --> 0:02:11.840 How much investigation of clerks should judges be doing well? 0:02:11.880 --> 0:02:15.880 I think that's one of the issues that the Committee 0:02:15.919 --> 0:02:20.160 on Codes of Conduct will be looking into. What is 0:02:20.440 --> 0:02:24.639 due diligence in this respect and what are the ethical 0:02:24.760 --> 0:02:29.440 obligations of a federal judge. It's important to emphasize that 0:02:29.480 --> 0:02:34.120 the Committee on Codes of Conduct is tasked with interpreting 0:02:34.440 --> 0:02:38.720 and giving guidance based on the Code of Conduct. It 0:02:39.000 --> 0:02:43.760 is not otherwise in the business of telling judges how 0:02:43.800 --> 0:02:48.040 to run their chambers or here the two overlap a 0:02:48.080 --> 0:02:52.360 little bit, But for example, is it enough that the 0:02:53.080 --> 0:02:57.400 judge asks the clerk Is there anything you've done in 0:02:57.440 --> 0:03:01.480 the past that would embarrass you or me if it 0:03:01.560 --> 0:03:05.480 came out now, or should the judge carry out is 0:03:05.520 --> 0:03:09.840 it her own investigation? Now? I don't do much social 0:03:09.919 --> 0:03:14.320 media myself, so I'm not really the person to talk 0:03:14.320 --> 0:03:17.640 about that in detail. But my sense is that a 0:03:17.840 --> 0:03:21.920 thorough background investigation of that time will be very time 0:03:22.000 --> 0:03:26.120 consuming and laborious, and I'm not sure a judge should 0:03:26.160 --> 0:03:29.480 be expected to do that. A judge should be able 0:03:29.520 --> 0:03:33.040 to ask the law clerk if there is any such 0:03:33.440 --> 0:03:37.320 material in the works past, and take the clerk's word 0:03:37.400 --> 0:03:41.080 about that. But the Committee on Codes of Conduct might 0:03:41.200 --> 0:03:45.800 decide that something something more than that is required. But 0:03:46.240 --> 0:03:50.480 their task at this point is to consider the process 0:03:50.680 --> 0:03:54.880 by which judges hire their law clerks, law clerks who 0:03:54.920 --> 0:03:58.360 may have something in their past that cast doubt on 0:03:58.640 --> 0:04:02.320 the fitness of the clerk presence service as a law 0:04:02.360 --> 0:04:04.040 clerk to a federal judge. 0:04:04.240 --> 0:04:05.960 How long might this process take? 0:04:06.400 --> 0:04:08.480 That I think is one of the issues that the 0:04:08.520 --> 0:04:10.720 committee will have to consider. I mean, this is not 0:04:10.840 --> 0:04:14.000 the major thing that a judge does. I mean, it's 0:04:14.040 --> 0:04:16.960 a very important part of the judges work. But the 0:04:17.040 --> 0:04:23.600 judges nominated and confirmed to decide cases. So every minute 0:04:23.680 --> 0:04:27.400 that is taken away from those tasks, the judges not 0:04:27.520 --> 0:04:32.360 doing what or she was nominated and confirmed to do so. 0:04:32.600 --> 0:04:37.920 Figuring out how thorough the investigation should be and whether 0:04:37.920 --> 0:04:42.279 there are any particular things a judge should do in 0:04:42.640 --> 0:04:46.680 checking on a law clerk is one of the questions 0:04:46.760 --> 0:04:49.800 that the Committee and Codes of Conduct will now be 0:04:49.960 --> 0:04:50.640 looking into. 0:04:51.120 --> 0:04:55.680 They also wanted to get your position on the conservative 0:04:55.760 --> 0:05:00.200 federal judges who announced they were going to boycott and 0:05:00.320 --> 0:05:04.840 clerks from particular law schools where there were demonstrations and 0:05:04.880 --> 0:05:08.920 disruptions on campuses. These are law schools that would be 0:05:08.960 --> 0:05:13.040 considered liberal. So just eliminating a whole block of students 0:05:13.279 --> 0:05:16.000 because of what happened on their campuses. 0:05:16.000 --> 0:05:21.200 Well, that raises some related but distinct and very interesting 0:05:21.240 --> 0:05:24.960 and important issues. Actually, I think our key to this 0:05:25.440 --> 0:05:31.400 is why the federal judges are taking that possession. For example, 0:05:31.680 --> 0:05:35.320 a judge might say, if a student has gotten his 0:05:35.520 --> 0:05:40.440 or her legal education at a law school that discourages 0:05:40.640 --> 0:05:49.080 dissent and allows raucous intrusions on presentation of unpopular views, 0:05:49.600 --> 0:05:54.400 that environment diminishes the quality of the education that the 0:05:54.520 --> 0:05:59.400 student gets. Because an important part of legal education, important 0:05:59.440 --> 0:06:05.440 part of legal reasoning is listening to other views and 0:06:06.000 --> 0:06:10.000 processing them and responding to them in a professional way. 0:06:10.440 --> 0:06:14.160 So a judge might think the person in his chambers 0:06:14.400 --> 0:06:18.520 should be somebody who's gotten a legal education that is 0:06:18.640 --> 0:06:21.720 not tainted in that way. And you know, maybe we 0:06:21.760 --> 0:06:24.279 should back up a minute, because it really relates to 0:06:24.360 --> 0:06:28.520 both of these topics very were Judges today have very 0:06:28.640 --> 0:06:33.640 very heavy workloads, and they're very heavily dependent on their 0:06:33.720 --> 0:06:37.720 law clerks. So it's important that these clerks have gotten 0:06:38.000 --> 0:06:41.279 the best possible training. So as I say, if the 0:06:41.640 --> 0:06:45.680 judge believes that some of the practices at a particular 0:06:45.880 --> 0:06:50.320 law school diminish the quality of the training, I think 0:06:50.360 --> 0:06:54.840 that would be a legitimate job related reason for not 0:06:55.080 --> 0:06:58.560 hiring students from that law school, even though it is 0:06:58.600 --> 0:07:03.000 in a sense to the students. Although you know, if 0:07:03.040 --> 0:07:07.400 you look at it more broadly, you talk about boycotts. No, 0:07:07.520 --> 0:07:10.520 there are many judges who are their law clerks only 0:07:10.560 --> 0:07:14.160 from let's say top fourteen or top twenty, whatever it 0:07:14.280 --> 0:07:18.040 is law schools. Are they boycotting the other one hundred 0:07:18.080 --> 0:07:20.720 and eighty? I don't think we would ordinarily say that, 0:07:20.800 --> 0:07:24.040 would say that the judges decided, rightly or wrongly, that 0:07:24.320 --> 0:07:27.840 the most effective way of finding good law clerks is 0:07:27.880 --> 0:07:30.760 to stick with a small number of elite law schools 0:07:30.800 --> 0:07:35.160 where they know some faculty and can rely on recommendations. 0:07:35.400 --> 0:07:39.920 So if the reason is related to the carrying out 0:07:40.080 --> 0:07:45.400 of the judge's adjudicated responsibilities, I'm not sure I see 0:07:45.400 --> 0:07:46.880 a problem in them. 0:07:46.920 --> 0:07:49.760 Choosing law clerks from the best law schools because you 0:07:49.920 --> 0:07:54.600 think that they'll be the best clerks. Seems different to 0:07:54.680 --> 0:07:58.920 me than not choosing students from top schools like Stanford 0:07:58.920 --> 0:08:04.200 and Yale because some conservative speakers face blowbacks on campus. 0:08:04.640 --> 0:08:09.000 It may be problematic if the judges are doing this 0:08:09.440 --> 0:08:13.560 to change the culture in the law schools. I say, maybe, 0:08:13.720 --> 0:08:18.720 because judges are allowed to write and speak out on 0:08:18.840 --> 0:08:23.640 the improvement in the legal profession, and maybe it's part 0:08:23.680 --> 0:08:27.080 of that, or a small step further to say that 0:08:27.240 --> 0:08:31.400 judges can hire their law clerks in a way that 0:08:31.440 --> 0:08:36.400 they believe will improve the culture at law schools. But 0:08:36.480 --> 0:08:40.600 that's a very different kind of motivation or purpose, and 0:08:40.880 --> 0:08:44.240 that when I think, would be more controversial. As I say, 0:08:44.280 --> 0:08:46.480 I think you can make a case that that is 0:08:47.000 --> 0:08:51.160 legitimate within the code of conduct. But other people might 0:08:51.440 --> 0:08:56.200 say that it looks like using the judge's position to 0:08:56.360 --> 0:09:00.320 advance the judge's personal interests, which is one of the 0:09:00.360 --> 0:09:04.320 things that the code explicitly prohibits. So it's a question 0:09:04.400 --> 0:09:07.280 of how you view that. Is it a way of 0:09:07.400 --> 0:09:10.920 improving the legal profession, which is something the judge is 0:09:11.000 --> 0:09:13.960 explicitly allowed to do under the code, or is it 0:09:14.040 --> 0:09:17.320 advancing a personal interest, which is something the judge is 0:09:17.360 --> 0:09:19.280 explicitly prohibited from going. 0:09:19.760 --> 0:09:24.240 I'll just note these conservative judges were Trump appointees. Did 0:09:24.320 --> 0:09:26.719 they face any consequences because of this? 0:09:27.280 --> 0:09:30.959 I think possibly a complaint has been filed a while 0:09:31.080 --> 0:09:35.480 that I'm pretty sure no order has been issued. Certainly 0:09:35.960 --> 0:09:41.160 there have been criticisms from other judges about the so 0:09:41.320 --> 0:09:44.720 called boycott. The grounds have been along the lines that 0:09:44.800 --> 0:09:49.120 I suggested that the judges are using their position to 0:09:49.240 --> 0:09:53.640 change the culture at law schools, and that's a misuse 0:09:54.040 --> 0:09:57.720 of the judicial position, that judges should be concerned in 0:09:57.800 --> 0:10:01.880 their hiring only with getting the people for their chambers. 0:10:02.520 --> 0:10:06.280 Let's turn out of the resignation last week of a 0:10:06.360 --> 0:10:12.200 judge in Alaska over allegations of sexual misconduct. A federal 0:10:12.320 --> 0:10:17.479 judge in Alaska Joshua Kindred resigned and could face impeachment 0:10:17.960 --> 0:10:22.000 after an investigation found that he had an inappropriate sexual 0:10:22.040 --> 0:10:25.720 relationship with a female law clerk, and that he created 0:10:25.800 --> 0:10:29.160 a hostile work environment and appeared to have no filter 0:10:29.280 --> 0:10:33.439 in his discussions with clerks, discussing his romantic preferences, his 0:10:33.480 --> 0:10:37.720 sex life, his divorce, the law clerk's boyfriends and dating lives, 0:10:37.800 --> 0:10:41.680 on and on. The investigation by the judiciary into the 0:10:41.720 --> 0:10:45.080 Trump appointee resulted in a one hundred and five page 0:10:45.120 --> 0:10:49.640 report with more than one thousand pages of exhibits, including 0:10:49.760 --> 0:10:53.520 seven hundred pages of text messages between the judge and 0:10:53.559 --> 0:10:57.160 his clerks. The inquiry could lead to the reopening of 0:10:57.320 --> 0:11:01.040 multiple criminal cases that came before Kendrick during his more 0:11:01.080 --> 0:11:04.040 than four years on the bench. I've been talking to 0:11:04.240 --> 0:11:07.840 legal ethics expert Arthur Hellman, a professor at the University 0:11:07.880 --> 0:11:12.200 of Pittsburgh Law School. So there was this outrageous conduct, 0:11:12.600 --> 0:11:16.120 but it took almost two years after the chief Judge 0:11:16.240 --> 0:11:20.240 learned about it for the judiciary to complete its investigation. 0:11:20.800 --> 0:11:23.560 And in those two years there were criminal cases that 0:11:23.720 --> 0:11:26.920 came before Kindred, And now these findings could lead to 0:11:26.960 --> 0:11:30.000 the reopening of many of those cases. 0:11:29.600 --> 0:11:34.720 And others well, it is somewhat caauseling because the evidence 0:11:34.760 --> 0:11:39.040 has presented in the Judicial Council report is so strong. 0:11:39.520 --> 0:11:42.160 You would think it would not have taken almost two 0:11:42.280 --> 0:11:47.160 years to find all that evidence and to come to 0:11:47.280 --> 0:11:51.760 a conclusion that this individual was unfit to serve as 0:11:51.800 --> 0:11:55.760 a federally the conclusion they reached when they referred the 0:11:55.800 --> 0:11:59.320 matter to Judicial Conference at the United States for a 0:11:59.360 --> 0:12:05.959 consideration of possible recommendation to Congress for consideration of impeachment, 0:12:06.200 --> 0:12:10.160 that is a little hard to understand. What maybe is 0:12:10.240 --> 0:12:14.800 that the people they talk to were initially reluctant to 0:12:14.920 --> 0:12:20.439 speak out, and if that's so, it really raises some 0:12:21.120 --> 0:12:24.840 very troubling issues because, as you know, it was it 0:12:24.920 --> 0:12:29.040 five or six years ago now, the Judiciary completely revamped 0:12:29.120 --> 0:12:33.360 its procedures regarding the workplace in the wake of the 0:12:33.640 --> 0:12:38.160 accusations against pulling the judge Alex Kozinski, and I have 0:12:38.240 --> 0:12:40.480 to say I thought they had done a pretty good 0:12:40.640 --> 0:12:44.800 job and that they were really trying to create, as 0:12:44.880 --> 0:12:49.360 Chief Justice Roberts put it, an exemplary workplace in every 0:12:49.480 --> 0:12:54.000 judicial chamber, and particularly in the Ninth Circuit, which has 0:12:54.080 --> 0:12:57.160 been a leader in this as in so many other 0:12:57.440 --> 0:13:02.240 administrative aspects of the federal judicial that this took that 0:13:02.520 --> 0:13:08.600 long to get resolved is very troubling, and I think 0:13:08.640 --> 0:13:13.240 it does call lass for another look at how the 0:13:13.679 --> 0:13:18.520 judiciary is handling this very important aspect of the administration 0:13:18.640 --> 0:13:19.600 of the federal courts. 0:13:20.000 --> 0:13:25.360 The repercussions from this are going to be enormous. Federal 0:13:25.440 --> 0:13:30.240 prosecutors in Alaska have identified nearly two dozen criminal cases 0:13:30.800 --> 0:13:36.120 with potentially undisclosed conflicts of interest involving former Judge Kindred 0:13:36.600 --> 0:13:39.760 and the attorneys who worked on the cases before him. 0:13:39.880 --> 0:13:42.640 Three of those are in the US Attorney's office. 0:13:42.960 --> 0:13:47.360 Well, I'm not an expert on federal criminal prosecutions, but 0:13:47.480 --> 0:13:51.000 what I will say is that that aspect of this 0:13:51.080 --> 0:13:56.079 particular case underscores the point you made initially that there 0:13:56.160 --> 0:14:02.079 was a particular reason here for proceeding with some swiftness, 0:14:02.400 --> 0:14:06.839 giving all due process to the judge. But there were 0:14:06.840 --> 0:14:11.040 some particular reasons here why the matter should have been 0:14:11.120 --> 0:14:16.920 resolved as quickly as possible so that these repercussions would 0:14:16.960 --> 0:14:18.040 be minimized. 0:14:18.960 --> 0:14:23.880 The judge did recuse himself in some cases. How is 0:14:23.920 --> 0:14:26.480 it determined whether there was a conflict of interest? 0:14:27.160 --> 0:14:30.880 Well, what the statute says is apart from some specific 0:14:31.200 --> 0:14:35.520 circumstances where a judge must recuse, for example, where the 0:14:35.600 --> 0:14:38.760 judge has a financial interest in the outcome of the case, 0:14:39.080 --> 0:14:43.320 the more general provision says that a judge must accuse 0:14:43.680 --> 0:14:49.640 if a reasonable person would doubt the judge's impartiality, and 0:14:50.040 --> 0:14:54.200 judicial interpretations of that statute set from four fifty five 0:14:54.480 --> 0:14:58.640 have said that you look at that question from the 0:14:58.680 --> 0:15:02.880 standpoint of a re reasonable person outside the court, but 0:15:03.240 --> 0:15:08.080 informed of all the circumstances. So those are the elements 0:15:08.120 --> 0:15:12.400 of the test. It's an objective test. Again, it's a 0:15:12.440 --> 0:15:16.960 reasonable person, but not a person within the judiciary, because 0:15:17.040 --> 0:15:20.520 the courts have said that people within the judiciary may 0:15:20.560 --> 0:15:25.640 be too inclined to discount the possibility that the judge 0:15:25.680 --> 0:15:29.400 would look partial or biased. So you look at the 0:15:29.440 --> 0:15:33.640 reasonable person outside the judiciary. But at the same time, 0:15:34.200 --> 0:15:38.520 the reasonable person is fully informed of the circumstances, and 0:15:38.560 --> 0:15:41.960 so the judge has to put himself or herself in 0:15:42.000 --> 0:15:44.040 the position of that reasonable person. 0:15:44.480 --> 0:15:49.080 Can you think of another case where there was misconduct 0:15:49.200 --> 0:15:53.160 like this by a judge and criminal cases got thrown 0:15:53.240 --> 0:15:55.160 out or retried. 0:15:55.920 --> 0:15:58.240 No, nothing comes to mind. I mean, you do have 0:15:58.320 --> 0:16:03.240 a somewhat parallel situation with the bankruptcy judge in Texas, 0:16:03.320 --> 0:16:08.360 don't you where they are in the process of upsetting 0:16:08.440 --> 0:16:13.000 I think, or at least questioning some of the decisions 0:16:13.040 --> 0:16:16.680 made by the bankruptcy judge who was in a romantic 0:16:16.800 --> 0:16:23.120 relationship with a bankruptcy lawyer. So I think that is comparable. 0:16:23.440 --> 0:16:28.520 You mentioned the repercussions going forward. I think one of 0:16:28.520 --> 0:16:32.840 the most interesting questions and important questions about the Alaska 0:16:33.120 --> 0:16:36.800 judge is how did a person get to be a 0:16:36.800 --> 0:16:40.920 federal judge. I mean, this is a young guy, and 0:16:41.920 --> 0:16:45.480 this kind of behavior seems to me not the sort 0:16:45.480 --> 0:16:50.920 of thing that suddenly happens that a person suddenly engages in, 0:16:51.560 --> 0:16:56.720 and you would think that there would be some evidence 0:16:56.760 --> 0:17:01.280 of this in his career and his behavior as a lawyer. Now, 0:17:01.520 --> 0:17:05.159 as you know, before somebody is appointed to the federal bench, 0:17:05.280 --> 0:17:10.440 there's a very intense investigation. As it's more than one. 0:17:10.600 --> 0:17:14.400 There's the FBI, there's the White House, there's the ABA. 0:17:15.119 --> 0:17:19.320 The FBI in particular is very thorough. For example, I've 0:17:19.320 --> 0:17:25.240 gotten calls about people who worked for me briefly thirty 0:17:25.359 --> 0:17:30.600 years earlier because the nominee is required to list every 0:17:30.640 --> 0:17:34.920 person he or she has ever worked for. So how 0:17:34.920 --> 0:17:39.320 did Joshua Kindred get through that process where there are 0:17:39.320 --> 0:17:43.880 no warning signals in any of the conversations that FBI 0:17:44.040 --> 0:17:48.600 agents or the ABA committee members had members of the 0:17:48.600 --> 0:17:54.240 Alaska legal community that would have alerted them to the 0:17:54.480 --> 0:17:58.240 very real possibility, which turned out to be the reality 0:17:58.920 --> 0:18:01.399 that this that you or just did not have the 0:18:01.520 --> 0:18:05.000 temperament to be a federal judge. Now, by the way, 0:18:05.040 --> 0:18:08.399 you had a similar failing twenty five years ago with 0:18:08.600 --> 0:18:14.280 Judge Fortius, who was impeached and convicted for actual bribery 0:18:14.520 --> 0:18:18.879 and other criminal activity that he had engaged in for 0:18:19.080 --> 0:18:22.760 many years in Louisiana and which has to have been 0:18:22.840 --> 0:18:27.960 known by many of the people in Louisiana legal community. 0:18:28.000 --> 0:18:31.640 That was another failure in my view, the vetting process, 0:18:32.000 --> 0:18:34.720 as far as I know, nobody has ever looked into 0:18:35.119 --> 0:18:38.960 or written about. But I think there's a serious concern 0:18:39.119 --> 0:18:45.480 here that the vetting process at the nomination slash confirmation, 0:18:45.520 --> 0:18:48.560 and it's really a nomination, you don't expect the Senate 0:18:48.640 --> 0:18:53.280 Judiciary Committee to carry out the kind of in depth 0:18:53.359 --> 0:18:59.160 investigation that the FBI, with all of its resources can 0:18:59.200 --> 0:19:02.640 do or that the a BA can do with its 0:19:02.880 --> 0:19:07.840 members in every state and every legal community. Those two 0:19:08.280 --> 0:19:15.240 organizations have the resources to carry out in depth investigations, 0:19:15.320 --> 0:19:18.399 and we really have to depend on them. In a 0:19:18.680 --> 0:19:22.280 likelihood they missed this. You know, it's possible that you know, 0:19:23.240 --> 0:19:26.160 that he had a complete personality change on the belt, 0:19:26.240 --> 0:19:29.960 and there's some suggestion that the isolation in the COVID 0:19:30.040 --> 0:19:35.960 lockdowns had some influence. But you know, isolation doesn't turn 0:19:36.000 --> 0:19:41.320 a man into this, this course speaking individual who harasses 0:19:41.760 --> 0:19:44.919 women in the way he did. You know, even to 0:19:45.000 --> 0:19:49.960 read about his behavior, it's an embarrassment, and behavior of 0:19:50.000 --> 0:19:55.679 that extreme, it seems to me doesn't start overnight or 0:19:55.720 --> 0:19:59.040 when a man takes the oath as a federal judge. 0:20:00.200 --> 0:20:04.240 To have been some signals in his earlier behavior that 0:20:04.800 --> 0:20:09.040 should have been called. So I would hope that one 0:20:09.080 --> 0:20:16.040 of the consequences of this very sad and unfortunate proceeding 0:20:16.920 --> 0:20:20.520 is that there will be a look not only at 0:20:20.600 --> 0:20:24.480 the procedures within the federal judiciary we haven't talked about, 0:20:25.119 --> 0:20:31.080 but within the executive branch and the vetting of judicial nominees. 0:20:31.960 --> 0:20:36.400 Considering all the information out there about hostile work environments 0:20:36.440 --> 0:20:39.160 and the legal case is over. It it's almost hard 0:20:39.200 --> 0:20:42.720 to believe that this judge didn't recognize what he was doing. 0:20:43.400 --> 0:20:47.640 Going back to our prior discussion of the Ninth Circuit 0:20:47.720 --> 0:20:52.600 and the Federal Judiciary putting new procedures in place, is 0:20:52.680 --> 0:20:59.719 that it may be that the panoply of procedures is 0:21:00.000 --> 0:21:05.040 possibly part of the problem now because one of the 0:21:05.080 --> 0:21:08.000 things I think that is absolutely essential is that there'd 0:21:08.000 --> 0:21:13.040 be one person who is responsible. You know, if everybody 0:21:13.119 --> 0:21:17.840 is responsible, then nobody is responsible. And here it's the 0:21:17.920 --> 0:21:23.439 Chief Judge. And I don't know if the Chief Judge 0:21:23.480 --> 0:21:29.040 addedly conveyed the message that if federal judge is misbehaving, 0:21:29.480 --> 0:21:31.840 I want to know about it. I will take action 0:21:32.520 --> 0:21:34.640 and I will make sure there's no retaliation. 0:21:34.960 --> 0:21:37.720 Thanks so much for coming on the show, Arthur as 0:21:37.800 --> 0:21:41.720 Professor Arthur Hellman of the University of Pittsburgh Law School 0:21:41.960 --> 0:21:45.119 coming up next on The Bloomberg Law Show. Articles of 0:21:45.160 --> 0:21:49.600 impeachment have been filed against Justice Clarence Thomas and Justice 0:21:49.640 --> 0:21:54.480 Samuel Alito. You're sure to fail, So what are the repercussions. 0:21:54.760 --> 0:21:58.240 I'm June Grosso. When you're listening to Bloomberg, New York 0:21:58.240 --> 0:22:03.679 Representative Alexandria Zeo Cortes has filed articles of impeachment against 0:22:03.680 --> 0:22:08.199 Supreme Court Justices Clarence Thomas and Samuel Alito for what 0:22:08.320 --> 0:22:11.919 she said was their failure to report gifts and refusal 0:22:12.000 --> 0:22:15.840 to recuse from cases in which they were conflicted. Progressives 0:22:15.840 --> 0:22:19.840 and others have criticized both justices over reports they accepted 0:22:19.920 --> 0:22:24.040 vacations from wealthy people and failed to recuse from cases 0:22:24.240 --> 0:22:28.080 despite conflicts they said were created by their spouses. The 0:22:28.119 --> 0:22:32.440 success of either resolution against arguably the Court's two most 0:22:32.480 --> 0:22:37.719 conservative justices is unlikely given the Republican control of the House. 0:22:38.200 --> 0:22:42.600 The New York Democrat and Maryland Democratic Representative Jamie Raskin 0:22:43.200 --> 0:22:47.000 wrote to Chief Justice John Roberts on June twentieth, urging 0:22:47.040 --> 0:22:51.320 him to investigate Thomas and Alito. Democratic senators have sent 0:22:51.440 --> 0:22:54.760 similar requests to the Chief Justice. Of course, the Chief 0:22:54.800 --> 0:22:58.720 has taken no action. Joining me is an expert in impeachment. 0:22:59.080 --> 0:23:02.560 Frank Bowman, a professor at the University of Missouri Law School, 0:23:03.080 --> 0:23:07.040 so tell us about the articles against Thomas well. 0:23:07.080 --> 0:23:10.200 There are three articles that have been filed by Representative 0:23:10.200 --> 0:23:16.600 Ocasio Cortes and some of her colleagues, Essentially they allege 0:23:16.720 --> 0:23:23.360 that Justice Thomas really improperly refused to recuse himself from 0:23:23.640 --> 0:23:28.200 a variety of matters based on three things. The first 0:23:28.280 --> 0:23:32.520 article has to do with his receipt of gifts from 0:23:32.560 --> 0:23:38.760 Harlan Crow and other folks broadly associated with the American 0:23:38.840 --> 0:23:43.240 Enterprise Institute and other conservative entities, the argument there being 0:23:43.720 --> 0:23:48.959 that these entities at least file Amiekus briefs in matters 0:23:48.960 --> 0:23:51.040 that appeared before the court, even if they're not parties, 0:23:51.400 --> 0:23:53.720 and thus they have an ongoing interest in the outcome 0:23:53.760 --> 0:23:56.320 of cases in the court. The second article has to 0:23:56.359 --> 0:24:01.680 do with Missus Thomas's professional activity. She has, over the 0:24:01.760 --> 0:24:07.240 years had various consulting arrangements or consulting entities which are 0:24:07.680 --> 0:24:13.120 through interwoven in the conservative legal political movement, and various 0:24:13.280 --> 0:24:18.160 folks in that constellation of people and enterprises and think 0:24:18.240 --> 0:24:22.719 tanks and so forth have funneled money to Jenny Thomas 0:24:23.280 --> 0:24:27.040 through her entities, And here too, the argument is that 0:24:27.600 --> 0:24:32.080 Thomas should have refused himself in any matters in which 0:24:32.840 --> 0:24:35.720 any of the various entities that have funneled money to 0:24:35.760 --> 0:24:39.000 his wife might have filed a brief more habit some 0:24:39.040 --> 0:24:43.320 sort of interest, and the third one is the one 0:24:43.400 --> 0:24:46.480 which probably has the most bite to me, and that's 0:24:47.480 --> 0:24:52.040 one in which the argument is that Justice Thomas should 0:24:52.040 --> 0:24:54.600 have recused himself essentially in all the cases that had 0:24:54.640 --> 0:24:57.400 anything to do with Trump's effort to overturn the twenty 0:24:57.480 --> 0:25:02.880 twenty election results, because his wife was involved in the 0:25:03.160 --> 0:25:06.159 Trump coup attempt. Now, the degree of her involvement is 0:25:06.200 --> 0:25:11.840 a little bit unclear, but she certainly was actively advising 0:25:12.200 --> 0:25:16.480 various people in clinical staff and others about how to 0:25:16.520 --> 0:25:20.360 proceed during Trump's effort to overturn the election between November 0:25:20.400 --> 0:25:24.639 twenty twenty and January twenty twenty one. And the argument 0:25:24.680 --> 0:25:28.920 there is, you know, your wife, Justice Thomas, is actually, 0:25:29.119 --> 0:25:33.320 you know, directly involved, albeit not at the center, but 0:25:33.880 --> 0:25:39.399 directly involved in this effect conspiracy to overturn an election, 0:25:39.880 --> 0:25:43.879 And you have no business ruling on the merits of 0:25:43.920 --> 0:25:47.800 any cases involving in involving that coup, whether they involve Trump, 0:25:48.119 --> 0:25:52.359 whether they involve neither other people were charged, or just 0:25:52.440 --> 0:25:56.000 the general issues that are raised by that coup attempt, 0:25:56.200 --> 0:26:00.240 because there's certainly a reasonable inference to be drawn that 0:26:00.320 --> 0:26:03.320 you're not impartial in these cases because a your wife 0:26:03.359 --> 0:26:07.000 was directly involved in this she was potentially at least 0:26:07.040 --> 0:26:09.240 a witness, indeed was a witness in front of the 0:26:09.320 --> 0:26:12.560 January sixth committee. Arguably she could have been a defendant. 0:26:13.080 --> 0:26:16.320 She has not been charged, of course, but she was 0:26:16.320 --> 0:26:20.800 certainly potentially a defendant in any case charging a criminal 0:26:20.840 --> 0:26:24.920 conspiracy arising from January sixth in its antecedents. So those 0:26:24.920 --> 0:26:29.080 are the three arguments against Thomas. I think the first 0:26:29.160 --> 0:26:33.639 two are at least undeveloped. The third one is a 0:26:33.720 --> 0:26:41.040 stronger case for recusal certainly, and thus maybe as fractionally 0:26:41.200 --> 0:26:42.879 stronger case for impeachment. 0:26:43.320 --> 0:26:47.439 By contrast, the allegations against Justice Samuel Alito are shorter. 0:26:48.240 --> 0:26:53.000 Explain those well, I mean, I think they're really really 0:26:53.080 --> 0:26:56.800 released in both actually and on a constitutional basis. I mean, 0:26:56.800 --> 0:27:01.040 in essence, they arise out of the flag controversy. In essence, 0:27:01.080 --> 0:27:04.560 the argument is, well, Alito or somebody and his family 0:27:04.880 --> 0:27:09.080 flew an upside down US flag and the appeal to 0:27:09.119 --> 0:27:13.840 Heaven revolutionary flag, which are in some circles associated with Trump, 0:27:14.280 --> 0:27:17.320 or the effort to overturn the twenty twenty election. That, 0:27:17.480 --> 0:27:21.600 by extension is said to indicate that Lee to himself 0:27:21.640 --> 0:27:25.879 had some sympathy with the effort to overturn the election, 0:27:26.000 --> 0:27:29.040 and therefore you have to refuse himself and so forth 0:27:29.080 --> 0:27:31.520 and so on. And the two problems with that, I mean, 0:27:31.640 --> 0:27:35.920 one is that the facts as to who flew what flags, when, 0:27:36.240 --> 0:27:41.440 and you know why, are extremely unclear, and you don't 0:27:41.640 --> 0:27:44.920 go around impeaching people on webs of supposition like that. 0:27:45.119 --> 0:27:49.240 And the second issue is a more difficult constitutional one. 0:27:49.520 --> 0:27:53.399 We've only impeached one Supreme Court justice in our history, 0:27:53.520 --> 0:27:55.840 and he was acquitted of Samuel Chase in eighteen oh 0:27:55.880 --> 0:27:59.440 four eighteen oh five. And Chase was essentially an impeached 0:27:59.680 --> 0:28:04.560 for being a vocal Federalist and therefore an opponent of 0:28:04.800 --> 0:28:08.280 Thomas Jefferson's Republicans, and of saying and doing some things 0:28:08.280 --> 0:28:10.840 on the bench that suggested he had a very strong 0:28:11.200 --> 0:28:14.320 affinity for the Federalists. And he was essentially impeached for 0:28:14.640 --> 0:28:17.399 statements that he made from some rulings he made in 0:28:17.440 --> 0:28:20.040 some cases, but the real argument was that he was 0:28:20.080 --> 0:28:23.879 an ardent federalist and was letting that effect are his rulings, 0:28:24.040 --> 0:28:27.239 his statements, and he was acquitted by the Senate. And 0:28:27.280 --> 0:28:31.200 we've generally thought the meaning of that acquittal was that 0:28:31.400 --> 0:28:34.840 Supreme court justes and other judges should not be impeached 0:28:34.880 --> 0:28:38.920