If Judge Fuller won’t resign, the Chief Judge of the Circuit and the Circuit Judicial Council should stop him from handling cases for as long as the law allows

Judge Fuller got a sweet deal when prosecutors allowed him to enter some type of diversion program that will allow him to erase his criminal conviction for beating the crap out of his wife in a fancy hotel room while reeking with booze. See here and here for recent coverage (with a hat tip to How Appealing).

Now that we know the resolution of the criminal process, we can focus on the fact that Mark Fuller is an active United States District Judge. As such he holds immense power, and he exercises that power alone. What should happen if Fuller won’t resign? And from all accounts, he has no intention of voluntarily quitting.

I would not waste the effort trying to impeach him. I know something about impeachment having actually tried such a case before the Nebraska Supreme Court where I sought to oust Nebraska’s Attorney General. I doubt that you would ever get the House to act and any such action would probably not succeed as a legal matter even if you did. By the time it got to trial in the Senate, under his plea deal, the conviction would no longer exist. It will have been erased.

Instead, the Chief Judge of the Circuit and the Circuit Judicial Council should strip him of his ability to hear cases for as long as the law allows. See 28 U.S. Code § 354(a)(2)(A)(i) (“ordering that, on a temporary basis for a time certain, no further cases be assigned to the judge whose conduct is the subject of a complaint”). They should also publicly reprimand him and formally request that he resign. Id.§ 354(a)(2)(A)(ii-iii) & § 354(a)(2)(B)(ii). Pay him forever as an inducement to resign–the statute gives them that leverage. I don’t care. That’s chump change. Just neuter him for as long as possible. Approach this process practically and quickly. But be tough.

I don’t care about punishing Judge Fuller. I don’t want to hurt his family. I just want him off the bench for as long as possible. Why? It is very simple. Given what happened in that hotel room, no one should trust his judgment in a federal trial courtroom. That courtroom is a hallowed place where trust in the one person wearing a black robe is absolutely indispensable.*

UPDATE: For those who suggest impeachment is the proper route, I urge careful consideration of the prior impeachment cases.  Here is the list and a short summary of those cases prepared by the Federal Judicial Center, the research arm of the federal judiciary:

Impeachments of Federal Judges

John Pickering, U.S. District Court for the District of New Hampshire.
Impeached by the U.S. House of Representatives on March 2, 1803, on charges of mental instability and intoxication on the bench; Convicted by the U.S. Senate and removed from office on March 12, 1804.

Samuel Chase, Associate Justice, Supreme Court of the United States.
Impeached by the U.S. House of Representatives on March 12, 1804, on charges of arbitrary and oppressive conduct of trials; Acquitted by the U.S. Senate on March 1, 1805.

James H. Peck, U.S. District Court for the District of Missouri.
Impeached by the U.S. House of Representatives on April 24, 1830, on charges of abuse of the contempt power; Acquitted by the U.S. Senate on January 31, 1831.

West H. Humphreys, U.S. District Court for the Middle, Eastern, and Western Districts of Tennessee.
Impeached by the U.S. House of Representatives, May 6, 1862, on charges of refusing to hold court and waging war against the U.S. government; Convicted by the U.S. Senate and removed from office, June 26, 1862.

Mark W. Delahay, U.S. District Court for the District of Kansas.
Impeached by the U.S. House of Representatives, February 28, 1873, on charges of intoxication on the bench; Resigned from office, December 12, 1873, before opening of trial in the U.S. Senate.

Charles Swayne, U.S. District Court for the Northern District of Florida.
Impeached by the U.S. House of Representatives, December 13, 1904, on charges of abuse of contempt power and other misuses of office; Acquitted by the U.S. Senate February 27, 1905.

Robert W. Archbald, U.S. Commerce Court.
Impeached by the U.S. House of Representatives, July 11, 1912, on charges of improper business relationship with litigants; Convicted by the U.S. Senate and removed from office, January 13, 1913.

George W. English, U.S. District Court for the Eastern District of Illinois.
Impeached by the U.S. House of Representatives, April 1, 1926, on charges of abuse of power; Resigned from office November 4, 1926; Senate Court of Impeachment adjourned to December 13, 1926, when, on request of the House manager, impeachment proceedings were dismissed.

Harold Louderback, U.S. District Court for the Northern District of California.
Impeached by the U.S. House of Representatives, February 24, 1933, on charges of favoritism in the appointment of bankruptcy receivers; Acquitted by the U.S. Senate on May 24, 1933.

Halsted L. Ritter, U.S. District Court for the Southern District of Florida.
Impeached by the U.S. House of Representatives, March 2, 1936, on charges of favoritism in the appointment of bankruptcy receivers and practicing law while sitting as a judge; Convicted by the U.S. Senate and removed from office, April 17, 1936.

Harry E. Claiborne, U.S. District Court for the District of Nevada.
Impeached by the U.S. House of Representatives, July 22, 1986, on charges of income tax evasion and of remaining on the bench following criminal conviction; Convicted by the U.S. Senate and removed from office, October 9, 1986.

Alcee L. Hastings, U.S. District Court for the Southern District of Florida.
Impeached by the U.S. House of Representatives, August 3, 1988, on charges of perjury and conspiring to solicit a bribe; Convicted by the U.S. Senate and removed from office, October 20, 1989.

Walter L. Nixon, U.S. District Court for the Southern District of Mississippi.
Impeached by the U.S. House of Representatives, May 10, 1989, on charges of perjury before a federal grand jury; Convicted by the U.S. Senate and removed from office, November 3, 1989.

Samuel B. Kent, U.S. District Court for the Southern District of Texas.
Impeached by the U.S. House of Representatives, June 19, 2009, on charges of sexual assault, obstructing and impeding an official proceeding, and making false and misleading statements; Resigned from office, June 30, 2009. On July 20, 2009, the U.S. House of Representatives agreed to a resolution not to pursue further the articles of impeachment, and on July 22, 2009, the Senate, sitting as a court of impeachment, dismissed the articles.

G. Thomas Porteous, Jr., U.S. District Court for the Eastern District of Louisiana.
Impeached by the U.S. House of Representatives, March 11, 2010, on charges of accepting bribes and making false statements under penalty of perjury; Convicted by the U.S. Senate and removed from office, December 8, 2010.

Federal Judicial Center, History of the Federal Judiciary, impeachments of Federal Judges, (Last accessed September 11, 2014 at 3:10 PM).

RGK

*By the way, this has nothing to do with the Ray Rice case.

34 responses

  1. Don’t hold back, Judge. Get it off your chest. Tell it like it is.
    And, I agree with you completely. In the Southern District of Texas a few years ago, we had another, albeit different, mess involving a district judge. He tried to retire on disability and the Chief Judge of the Circuit said not only no but hell no. Then he tried to hand on (while he was in prison). Finally he resigned.
    Life tenure for federal judges is important. But we have to, in your words, neuter the bad ones.

  2. One question, does a judge face any impairment of their official duties similar to that of a giglio impaired officer? It seems like a case, such as this one, with a plea of guilt would undermine the credibility and perceived impartiality of a sitting judge.

  3. Pingback: Judges Behaving Badly | Reported Decisions

  4. Whether his conviction would be erased by the time of a Senate trial is irrelevant. I’m not sure why you mention that. A criminal conviction is not required for impeachment. The first impeachment was of a judge who was a drunk and incompetent. Alcee Hastings was removed despite his criminal court
    acquittal, and the most recent impeachment, Thomas Porteous, was never charged with any crime.

  5. If I were a lawyer who had recently lost a case before him, (especially one related to some form of domestic dispute) I would be raising hell. This sort of thing causes headaches for appeals courts, and rightfully so. How can you trust a judge to uphold the law who doesn’t obey the law?

    SLS

  6. To be clear, the Eleventh Circuit removed Judge Fuller was sitting on cases a month ago. He’s already on judicial garden leave. And his chambers are in the same courthouse as the chief judge of the Circuit. I don’t imagine many warm lunches between the two are in the offing.

    Your disclaimer, though, should be removed. How Judge Fuller is treated has everything to do with the Ray Rice case. A white federal judge should not be seen to be held less accountable for his actions than an African-American professional football player. The difference in status (judge vs. athlete) should cut against more favorable treatment for Judge Fuller. The other difference, well, that’s not one we should tolerate as a basis to decide to treat the judge differently from the athlete.

    Alcee Hastings, by the way, was impeached, and removed from judicial office, for less, and it was the judges in his own circuit (also the fighting 11th) who urged Congress to do so. (One of them, Judge Tjoflat, still sits to this day.) Perhaps Judge Fuller could join him in Congress, if the voters of Alabama want to excuse his behavior.

  7. JHP,

    I am talking about a final resolution and a sanction not the interim administrative order which is not a sanction. What I have suggested is the most severe sanction that can be imposed short of impeachment.

    With respect, you and I simply disagree about the relevance of the Ray Rice matter.

    I am aware of the impeachment cases. First, the Hastings impeachment involved far worse conduct, to wit: conspiracy, bribery, perjury, falsifying documents, thwarting a criminal investigation, and undermining the public confidence “in the integrity and impartiality of the judiciary.” See here for the full account.
    Second, all of the impeachment cases of judges involved behavior while performing a judicial function or perjury or tax evasion while sitting as a judge.

    Here is the list and summary prepared by the Federal Judicial Center, the research arm of the federal courts:

    John Pickering, U.S. District Court for the District of New Hampshire.
    Impeached by the U.S. House of Representatives on March 2, 1803, on charges of mental instability and intoxication on the bench; Convicted by the U.S. Senate and removed from office on March 12, 1804.

    Samuel Chase, Associate Justice, Supreme Court of the United States.
    Impeached by the U.S. House of Representatives on March 12, 1804, on charges of arbitrary and oppressive conduct of trials; Acquitted by the U.S. Senate on March 1, 1805.

    James H. Peck, U.S. District Court for the District of Missouri.
    Impeached by the U.S. House of Representatives on April 24, 1830, on charges of abuse of the contempt power; Acquitted by the U.S. Senate on January 31, 1831.

    West H. Humphreys, U.S. District Court for the Middle, Eastern, and Western Districts of Tennessee.
    Impeached by the U.S. House of Representatives, May 6, 1862, on charges of refusing to hold court and waging war against the U.S. government; Convicted by the U.S. Senate and removed from office, June 26, 1862.

    Mark W. Delahay, U.S. District Court for the District of Kansas.
    Impeached by the U.S. House of Representatives, February 28, 1873, on charges of intoxication on the bench; Resigned from office, December 12, 1873, before opening of trial in the U.S. Senate.

    Charles Swayne, U.S. District Court for the Northern District of Florida.
    Impeached by the U.S. House of Representatives, December 13, 1904, on charges of abuse of contempt power and other misuses of office; Acquitted by the U.S. Senate February 27, 1905.

    Robert W. Archbald, U.S. Commerce Court.
    Impeached by the U.S. House of Representatives, July 11, 1912, on charges of improper business relationship with litigants; Convicted by the U.S. Senate and removed from office, January 13, 1913.

    George W. English, U.S. District Court for the Eastern District of Illinois.
    Impeached by the U.S. House of Representatives, April 1, 1926, on charges of abuse of power; Resigned from office November 4, 1926; Senate Court of Impeachment adjourned to December 13, 1926, when, on request of the House manager, impeachment proceedings were dismissed.

    Harold Louderback, U.S. District Court for the Northern District of California.
    Impeached by the U.S. House of Representatives, February 24, 1933, on charges of favoritism in the appointment of bankruptcy receivers; Acquitted by the U.S. Senate on May 24, 1933.

    Halsted L. Ritter, U.S. District Court for the Southern District of Florida.
    Impeached by the U.S. House of Representatives, March 2, 1936, on charges of favoritism in the appointment of bankruptcy receivers and practicing law while sitting as a judge; Convicted by the U.S. Senate and removed from office, April 17, 1936.

    Harry E. Claiborne, U.S. District Court for the District of Nevada.
    Impeached by the U.S. House of Representatives, July 22, 1986, on charges of income tax evasion and of remaining on the bench following criminal conviction; Convicted by the U.S. Senate and removed from office, October 9, 1986.

    Alcee L. Hastings, U.S. District Court for the Southern District of Florida.
    Impeached by the U.S. House of Representatives, August 3, 1988, on charges of perjury and conspiring to solicit a bribe; Convicted by the U.S. Senate and removed from office, October 20, 1989.

    Walter L. Nixon, U.S. District Court for the Southern District of Mississippi.
    Impeached by the U.S. House of Representatives, May 10, 1989, on charges of perjury before a federal grand jury; Convicted by the U.S. Senate and removed from office, November 3, 1989.

    Samuel B. Kent, U.S. District Court for the Southern District of Texas.
    Impeached by the U.S. House of Representatives, June 19, 2009, on charges of sexual assault, obstructing and impeding an official proceeding, and making false and misleading statements; Resigned from office, June 30, 2009. On July 20, 2009, the U.S. House of Representatives agreed to a resolution not to pursue further the articles of impeachment, and on July 22, 2009, the Senate, sitting as a court of impeachment, dismissed the articles.

    G. Thomas Porteous, Jr., U.S. District Court for the Eastern District of Louisiana.
    Impeached by the U.S. House of Representatives, March 11, 2010, on charges of accepting bribes and making false statements under penalty of perjury; Convicted by the U.S. Senate and removed from office, December 8, 2010.

    All the best.

    RGK

  8. Tom, I proposed the most severe sanction short of impeachment. I am fully aware of all the impeachment cases. None of them are close to this one. Here is the list and summary of proceedings prepared by the Federal Judicial Center, the research arm of the judiciary:

    John Pickering, U.S. District Court for the District of New Hampshire.
    Impeached by the U.S. House of Representatives on March 2, 1803, on charges of mental instability and intoxication on the bench; Convicted by the U.S. Senate and removed from office on March 12, 1804.

    Samuel Chase, Associate Justice, Supreme Court of the United States.
    Impeached by the U.S. House of Representatives on March 12, 1804, on charges of arbitrary and oppressive conduct of trials; Acquitted by the U.S. Senate on March 1, 1805.

    James H. Peck, U.S. District Court for the District of Missouri.
    Impeached by the U.S. House of Representatives on April 24, 1830, on charges of abuse of the contempt power; Acquitted by the U.S. Senate on January 31, 1831.

    West H. Humphreys, U.S. District Court for the Middle, Eastern, and Western Districts of Tennessee.
    Impeached by the U.S. House of Representatives, May 6, 1862, on charges of refusing to hold court and waging war against the U.S. government; Convicted by the U.S. Senate and removed from office, June 26, 1862.

    Mark W. Delahay, U.S. District Court for the District of Kansas.
    Impeached by the U.S. House of Representatives, February 28, 1873, on charges of intoxication on the bench; Resigned from office, December 12, 1873, before opening of trial in the U.S. Senate.

    Charles Swayne, U.S. District Court for the Northern District of Florida.
    Impeached by the U.S. House of Representatives, December 13, 1904, on charges of abuse of contempt power and other misuses of office; Acquitted by the U.S. Senate February 27, 1905.

    Robert W. Archbald, U.S. Commerce Court.
    Impeached by the U.S. House of Representatives, July 11, 1912, on charges of improper business relationship with litigants; Convicted by the U.S. Senate and removed from office, January 13, 1913.

    George W. English, U.S. District Court for the Eastern District of Illinois.
    Impeached by the U.S. House of Representatives, April 1, 1926, on charges of abuse of power; Resigned from office November 4, 1926; Senate Court of Impeachment adjourned to December 13, 1926, when, on request of the House manager, impeachment proceedings were dismissed.

    Harold Louderback, U.S. District Court for the Northern District of California.
    Impeached by the U.S. House of Representatives, February 24, 1933, on charges of favoritism in the appointment of bankruptcy receivers; Acquitted by the U.S. Senate on May 24, 1933.

    Halsted L. Ritter, U.S. District Court for the Southern District of Florida.
    Impeached by the U.S. House of Representatives, March 2, 1936, on charges of favoritism in the appointment of bankruptcy receivers and practicing law while sitting as a judge; Convicted by the U.S. Senate and removed from office, April 17, 1936.

    Harry E. Claiborne, U.S. District Court for the District of Nevada.
    Impeached by the U.S. House of Representatives, July 22, 1986, on charges of income tax evasion and of remaining on the bench following criminal conviction; Convicted by the U.S. Senate and removed from office, October 9, 1986.

    Alcee L. Hastings, U.S. District Court for the Southern District of Florida.
    Impeached by the U.S. House of Representatives, August 3, 1988, on charges of perjury and conspiring to solicit a bribe; Convicted by the U.S. Senate and removed from office, October 20, 1989.

    Walter L. Nixon, U.S. District Court for the Southern District of Mississippi.
    Impeached by the U.S. House of Representatives, May 10, 1989, on charges of perjury before a federal grand jury; Convicted by the U.S. Senate and removed from office, November 3, 1989.

    Samuel B. Kent, U.S. District Court for the Southern District of Texas.
    Impeached by the U.S. House of Representatives, June 19, 2009, on charges of sexual assault, obstructing and impeding an official proceeding, and making false and misleading statements; Resigned from office, June 30, 2009. On July 20, 2009, the U.S. House of Representatives agreed to a resolution not to pursue further the articles of impeachment, and on July 22, 2009, the Senate, sitting as a court of impeachment, dismissed the articles.

    G. Thomas Porteous, Jr., U.S. District Court for the Eastern District of Louisiana.
    Impeached by the U.S. House of Representatives, March 11, 2010, on charges of accepting bribes and making false statements under penalty of perjury; Convicted by the U.S. Senate and removed from office, December 8, 2010.

    All the best.

    RGK

  9. Jon,

    Short of impeachment, under the Constitution we are stuck paying if he is eligible under the Rule of 80 (age plus years of service). If he has not satisfied the Rule of 80, he has a big incentive to stick around and call everyone’s bluff on impeachment. The statute I cited gives the Circuit Judicial Council a carrot–Since your age and years of service don’t entitle you to an annuity, if you resign now we will waive the Rule of 80.

    All the best.

    RGK

  10. The first problem I see is this: “Judge Fuller got a sweet deal when prosecutors allowed him to enter some type of diversion program that will allow him to erase his criminal conviction for beating the crap out of his wife in a fancy hotel room while reeking with booze.”

    That Judge Fuller got a deal that was so “sweet” that Judge Kopf called it “a sweet deal” raises the legitimate suspicion that he got a sweetheart deal because he was a federal judge. The system appears to be telling the public: “All men are equal before the law, but federal judges are more equal than you.” That impression is far more corrosive to the reputation of our justice system than Judge Fuller’s actions.

    Second, Judge Kopf’s position appears inconsistent with an earlier statement:

    Today: ” Why? It is very simple. Given what happened in that hotel room, no one should trust his judgment in a federal trial courtroom. That courtroom is a hallowed place where trust in the one person wearing a black robe is absolutely indispensable.”

    Mar. 2013: “I am deeply disturbed by the “Caesar’s wife” syndrome that the Center and other do-gooders are obsessed with when it comes to federal judges. That is, the idea that judges are supposed to comport themselves as Julius Caesar demanded of his wife Pompeia. In my view, this way of thinking is corrupt.”

    If the job of a federal district judge is to apply the law to the facts, the fact that he did something incredibly stupid one night while in a drunken stupor doesn’t doesn’t necessarily divest him of his ability to render sober judgments while stone-cold sober. It may actually humanize him, and make him more inclined to temper his judgment with mercy. Judges usually don’t know what it is like to be the man in the dock, and are often accused of a lack of empathy. That is why we have juries.

    It is an intriguing question because the Judge raised it, and the NCAA withdrew sanctions against Penn State in response to a lawsuit by the state of Pennsylvania. Caesar’s “decision to divorce his wife because his reputation was more important than the truth is a perfect example of the decadence that brought down Rome.” The NFL issued a two-week suspension against Ray Rice, but effectively banned him in response to the universal outrage. The NCAA probably didn’t have authority to do what it did, but they slapped PSU with brutal sanctions because the general public was clamoring for someone to “do something.” Is this call for the Council to “do something” about preserving the reputation of the judiciary?

    Either that way of thinking is corrupt, or it is not.

  11. Under Giglio {Giglio v. United States, 405 U.S. 150, 153 (U.S. 1972)}, prosecutors are required to disclose any and all evidence that may end up impeaching the credibility of their witnesses, to include members of law enforcement.

    If an officer becomes “Giglio impaired”, then their credibility on the stand is pretty much shredded, and they will likely lose any claim to immunity due to their employment. If that happens to an officer, they’d be better off becoming a radioactive Martian, as they are considered unemployable in an enforcement capacity.

    Is there any similar determination that would undermine the credibility of a sitting judge and require that judge be removed from the bench? Or, would the removal of a judge have to go the route of impeachment?

  12. Brosephus,

    Sorry to be so dense. The answer to your question is that there is only one way to remove an Article III judge from office and that is impeachment. Sanctions short of impeachment, but not amounting to removal from office, may be imposed under 28 U.S. Code § 354. In short, there is no Giglio impairment.

    All the best.

    RGK

  13. No problem, and I didn’t even consider you being dense at all. I should have better framed my question and explained myself.

    As a native of Alabama and living in Georgia, this judge is an embarrassment that I would love to see go away. Thanks for the answer though as you’ve been a kind and great help.

  14. I would respectfully disagree regarding the lessons to be drawn from full scale impeachments. Most represent the recalcitrant disgraced members of the bench, those who refused to recognize that they had to go. Other offenders of sufficient culpability to warrant impeachment properly resigned, mooting the need to impeach. Judge Kent belatedly went this route (as did a few others in the FJC’s list). Because federal judges hold their office “during good Behaviour” [sic], Congress surely can (and should) reach Judge Fuller’s conduct.

    One would hope that Judge Fuller will see the light if, as I expect might happen, the Eleventh Circuit makes a referral for an investigation leading to possible impeachment in his case. I believe we agree, and can expect, that the “temporary” garden leave suspension will continue until a decision is made on that referral, and during an investigation, if one is indeed ordered. That could be a substantial period of time. For Alcee Hastings, the process took six years, albeit prolonged by his various legal challenges to the then untested procedures.

    I draw the parallel to Judge/Rep. Hastings because (a) it came out of the same circuit, and (b) unlike Judge Fuller, Judge/Rep. Hastings denied any wrongdoing and a jury agreed with him. As summed up by Judge Sporkin in Hastings v. U.S., 837 F. Supp. 3, 5 (D.D.C. 1993):

    “This Court believes that the events surrounding plaintiff’s impeachment and conviction are an unfortunate chapter in the history of this country. A jury of plaintiff’s peers voted unanimously to acquit him of all criminal charges in a trial presided over by one of this nation’s ablest jurists. Despite his acquittal, Judge Hastings was convicted on articles of impeachment by vote of the full Senate, although eighty-eight out of one hundred senators did not hear the evidence against him. It is clear that the guilt or innocence of Judge Hastings was treated simply as another piece of legislation. In no sense of the word was Judge Hastings “tried” by the full Senate. That having been said, because of the Nixon decision, there is no further relief that can be afforded Judge Hastings.”

    Also, and perhaps more to the point, in the course of the many judicial proceedings collateral to Judge/Rep. Hastings impeachment, Judge Harry T. Edwards of the D.C. Circuit expressed strong constitutional concerns about the newly created statutory power to suspend judges, stating that he would be inclined to find it unconstitutional if it were used for an extended period of time. See Hastings v. Judicial Conf. of U.S., 770 F.3d 1093, 1007-09 (D.C. Cir. 1985) (Edwards, J., concurring)

  15. JHP,

    Thank you for your most thorough and thoughtful comment. I have only two responses:

    1. I don’t think what Judge Fuller did is similar in any way to any of the prior impeachment cases, particularly the ones that were successful. “Precedents” matter to the Senate when the members sit as a court of impeachment. So, even if you could get the Republican controlled House to impeach, I continue to have serious reservations about whether the Senate would have enough votes to convict.

    2. The important thing to me (and I admit I may be too narrowly focused) is to get him of the bench for as long as possible, and hopefully forever, and to do it quickly. The sanctions I proposed, including dangling the annuity carrot as an incentive to resign, seems to this old guy as the fastest and most practical way of accomplishing what I want–that is to sanitize the Alabama federal trial court as quickly as possible.

    Thank you for your serious engagement. I really appreciate it.

    All the best.

    RGK

  16. “I doubt that you would ever get the House to act and any such action would probably not succeed as a legal matter even if you did.”

    How much can we learn from Nixon v. US here? The Supreme Court indicates in clear language that the Constitution does not envision judicial review of impeachment proceedings, except for determining whether they “transgress identifiable textual limits.” The only relevant textual limit I could see would be the high crimes and misdemeanors clause, the meaning of which as far as I’m aware has never been litigated in the federal courts, but which dates back in English common law to the 1300s.

    I suppose judge Fuller might have a decent argument there. Though he really ought to spare the country. “My violent assault wasn’t a crime against the state directly, and therefore I ought to continue being a judge even though the elected representatives of the People disagree” is an awful argument in public discourse. Advancing it would certainly reduce public confidence in the integrity of the judiciary.

  17. Peter H.,

    One small point to avoid confusion about what I meant. I did not mean to suggest that judicial review of impeachment proceeding would save Fuller as you are right that judicial review is generally not available. What I meant is that the Senate frequently looks at its “precedents”–past impeachment cases–to determine whether to convict. If you review the list and summary prepared by the FJC (now part of the updated post) you will not find a comparable case. Fuller’s behavior involved private conduct whereas almost all of the “precedents” involved men acting in their judicial capacity or being questioned about their judicial behavior (perjury).

    All the best.

    RGK

  18. Judge:
    Several questions: 1) do we know, for a fact, that Judge Fuller refuses to resign?;
    2) do we know, for a fact, what the Chief Judge of the Circuit and the Circuit
    Judicial Council are inclined to do in the absence of his resignation?;
    3) is there a precedent for what you are suggesting, i.e., have the Chief
    Judge of the Circuit and/or the Circuit Judicial Council of any federal circuit
    ever stripped a sitting federal judge of his/her cases with an eye towards
    inducing resignation?; and
    4) have any House members publicly suggested that, in the absence of his
    resignation, they will consider filing Articles of Impeachment against Judge
    Fuller (if not, have any members of Georgia’s House or Senate
    delegations made any comment whatsoever about this matter?)?
    Robert

  19. You are right about the precedence on impeachment, but in the different world in which we live the distinction between off bench and on bench may not be meaningful, off bench matters were probably not widely know, and would not bring the judiciary into disrepute., I I have no idea what the Founders thought about wife beating, and I am not sure why I should care, we now see it as a very serious matter.. Impeachment unlikely but did not the Circuit’s taking away Hasting’s docket rather force Congressional hand? Though given where that judge is now perhaps a bad precedent. Also recall that 10th Cir. sort of fired a judge named Ritter in Utah.

  20. If he has any integrity he will resign, and if he has no integrity he will resist. Under either scenario he should hang up the robe.

  21. There is no excuse for domestic violence. I don’t care how drunk you were. I don’t care how mad your partner made you. Anyone who has been in a long term relationship understands that your partner can wound you in ways that nobody else can. But if your response is physical aggression, you are seriously f**ked up and should not be allowed to hold power over anyone else. Being an Article III judge means that you can issue an order and fully expect the President of the United States to obey it. That’s power. And that’s power that a wife-beater shouldn’t have. I like your solution. But if I were in the House, I think I’d introduce Articles of Impeachment.

  22. Pingback: Why I don’t favor the impeachment of Judge Fuller « Hercules and the umpire.

  23. Repenting lawyer,

    I can’t seem to find the case where the Circuit stripped Hasting’s docket from him. If there only an interim order effective only while the investigation was onoging, it would not run afoul of the “de facto impeachment” doctrine. Anyway, can you point to where you found that the Circuit stripped Hastings of his docket?

    For those who are unfamiliar with the Ritter case, the government sought to prohibit the Chief Judge of the District of Utah from handling any cases involving the government. The Circuit barred Ritter from handling a particular case, but never reached the question of whether it had the power to strip Ritter of the ability to handle all cases brought by the government. Ritter died before that issue was resolved. Some have said the government sought “de facto impeachment” of Ritter.

    All the best.

    RGK

  24. As a former battered spouse and a now-seasoned litigator, I respectfully disagree. I don’t think loss of a federal judge’s authority or workload is appropriate for one infraction, as disagreeable as we find him or his personal behavior.
    There is enormous benefit to judges being appointed for life; it shields them from all sorts of shenanigans. An example is a former state court judge I know who was threatened by a local sheriff to be publicly exposed and shamed for not paying his parking tickets. The judge was extremely liberal, in the minds of some folks in law enforcement…. The scheme backfired; the accuser was unaware that the judge in question was also extremely fastidious– and had kept his receipts for each and every paid parking ticket. A small example, but … if an unpopular judge could be lured into indiscretions potentially fatal to his career, the attempts to do so would occur more frequently. Personally, I would rather have a judge on the bench with lousy judgment in his personal life, than one under the thumb of a blackmailer in his judicial capacity.

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