Let’s say that you run a company that provides private arbitration services. You receive a report from one of your managers about a veteran arbitrator on the staff, John Smith. Although Smith is generally regarded as a good arbitrator, he recently handled an arbitration assignment without telling management about his prior financial ties to one of the parties involved. The manager suspended Smith temporarily for that offense and began looking more closely at his overall record and activities.
The manager uncovers a pattern of unsettling conduct. At his previous job (for another private arbitration company), Smith routinely accepted lunches and small gifts from vendors hoping to do business with the firm. Smith also has a gambling problem so severe that it contributed to his bankruptcy a few years earlier. And during the bankruptcy proceedings, Smith tried to avoid public embarrassment when, acting on his lawyer’s advice, he unsuccessfully tried to file his bankruptcy petition using an assumed name and a post office box in another town. Finally, the manager notes, Smith never disclosed any of this when he interviewed for his present job, and the company’s own background check failed to uncover any problems.
Most executives would fire Smith or at least quietly urge him to resign. Given that Smith is nearing retirement age anyhow, you might tell him to retire and collect his pension. You just don’t want the guy in the office anymore.
This scenario is now playing out, largely as I’ve described, before the United States Senate, which is trying four articles of impeachment against G. Thomas Porteous, a U.S. district judge based in Louisiana. In a fairly radical departure from prior judicial impeachments, the House of Representatives primarily charged Porteous with misdeeds unrelated to his office. Indeed, the core charges arise from conduct that took place more than 15 years ago while Porteous served as an elected state judge in Louisiana’s Jefferson Parish. Only one of the four articles alleges misconduct related to Porteous’s work on the federal bench.
This misconduct — spelled out in the second impeachment article — involved a purported conspiracy between Porteous and several other Jefferson Parrish judges to maintain a de facto monopoly in bail bonds. The would-be monopolist, Louis Marcotte, wined and dined judges in exchange for favorable bond conditions (favorable to Marcotte, obviously, not the defendants required to obtain the bonds). Marcotte didn’t exactly “bribe” Porteous — the House was careful not to use that word, even though bribery is a specific offense mentioned in the Constitution’s impeachment clause — but he apparently took him out to lunch once a week, performed free car and home repairs for the judge, and took him to Vegas a couple of times. The House dubbed this a “corrupt relationship” and said Porteous “used the power and prestige of his office to assist [Marcotte] in forming relationships” with other judges and people who might be useful to Marcotte’s business.
Color me unimpressed. I certainly accept the premise that Louisiana courts are rife with corruption, and that Porteous was likely part of that corruption, but it seems almost random for the House of Representatives — experts in the art of political corruption — to target a single judge over such nickel-and-dime shenanigans.
The other articles of impeachment are equally dubious. Only Article I addresses a matter relevant to Porteous’s conduct in federal office. The House said Porteous improperly refused to recuse himself in a civil lawsuit where he had a prior “corrupt financial relationship” to the attorneys for one of the parties. After reviewing the pleadings and testimony, I think the House made a mountain out of a molehill. Basically, Porteous was longtime friends with some of the attorneys and they may have given the judge some small personal gifts over the years, but there’s little evidence of a quid pro quo regarding this specific case. Porteous did enter a judgment for the party represented by his friends, but the decision was fully reviewed (and partially reversed) by the court of appeals. In effect, this article impeaches Porteous for failing to disclose the appearance of a conflict of interest, not so much an actual conflict.
I think it’s important to draw that distinction here, not because I want to defend Porteous, but because there are many cases of actual conflicts that have failed to draw an impeachment inquiry. In an April article, I discussed the Federal Trade Commission’s case to stop a hospital merger in northern Virginia. In that case, the FTC illegally bypassed its own administrative law judge and assigned its complaint to an FTC commissioner — the same commissioner who directly oversaw the prosecution staff! There was an obvious conflict: The commissioner had prejudged the case and orchestrated his own appointment as trial judge to guarantee a finding for the Commission. The commissioner even lied publicly about the circumstances surrounding his appointment. Did any of this draw the attention of the House Judiciary Committee? Of course not. But they’ll hang Porteous because he failed to recuse himself based on the “appearance” of impropriety.
It gets sillier. The third impeachment article describes Porteous’s efforts to avoid public embarrassment over his bankruptcy — his lawyer told him to file under an assumed name using a post office box — which the House claims “brought his court into scandal and disrepute,” even though there’s no evidence that any creditor was deprived due process in the bankruptcy case. During the Senate trial, the House managers used this article largely as an excuse to discuss Porteous’s gambling problem, which was a contributing factor to his bankruptcy. There was even an amusing discussion over whether casino markers constituted a “debt” for bankruptcy purposes.
Finally, there’s Article IV, which basically repackages the Marcotte charges from Article II (and some of the Article I allegations involving Porteous’s friends) as a catchall charge that directly appeals to the Senate’s vanity. Put simply, the House accused Porteous of lying on his job application: When the FBI and the Senate Judiciary Committee asked Porteous if there was anything in his background that might cause himself (or the president) embarrassment or reflect poorly on his character, he said, “No.” (This is essentially the inverse of Homer Simpson getting his daughter disqualified from a beauty pageant when, on the pageant application in a space marked, “Don’t write in this space,” he wrote, “OK.”)
Keep in mind, Porteous was confirmed 16 years ago. Is the House really saying there’s no statute of limitations on “misleading” the FBI and the Senate about your background during a confirmation hearing? I wouldn’t necessarily oppose such a standard, but it’s ridiculous to think the House will apply that consistently.
More importantly, doesn’t this article simply highlight the failure of the FBI and the Senate to properly vet judicial nominees? Porteous got the federal appointment based largely on the recommendation of Louisiana’s two senators. The FBI supposedly did a background check. And they found nothing. Indeed, the FBI and the Justice Department conducted a subsequent criminal investigation of Porteous and declined to even charge him. It seems to me if the evidence is so bad the feds won’t even attempt a prosecution, maybe Porteous isn’t quite the corruption genius the House would have us believe he is.
Article IV reminds me of my days at George Washington University, when the student government president was impeached and removed by the student senate. There were a number of specific charges that he actually prevailed on, but ultimately the president was removed on a single charge of “failure to fulfill the duties and responsibilities of office,” or something to that effect. In essence, the senate wanted him gone and didn’t want to get bogged down with specific reasons. In Porteous’s case, the House is inviting the Senate to remove him based on the general impression that he failed to disclose enough of his background during confirmation. That’s really an all-powerful weapon to remove any federal official. Which, again, isn’t necessarily a bad thing.
Of course, it’s a bad thing to Porteous and his attorneys, led by Jonathan Turley, a professor at — hey — George Washington University. Turley’s defense of Porteous constructs impeachment in very narrow terms, effectively maintaining that the House and Senate are constrained by their historical use of impeachment as a means of cleaning up after judges who have already been charged (and usually convicted) in criminal trials. (Incidentally, John Pickering was the first judge ever removed from office, in 1804, and one of the impeachment articles charged him with public drunkenness and cursing.) Porteous, of course, has never been charged with or convicted of a crime.
Turley, a high priest of constitutionalism, spent much of his defense invoking the God of the Framers and lecturing senators on how the Senate shouldn’t use impeachment as an end-run around the sanctity of judicial independence and lifetime tenure. But this seems just as silly as the impeachment charges themselves. This isn’t about some radical alteration of the separation of powers: It’s about firing a guy from his job. Actually, it’s not even about that. Porteous intends to retire even if he’s acquitted, so the only negative impact of a Senate conviction would be to strip Porteous of his government pension.
Now I’m fine with taking one more person off the federal welfare (er, pension) rolls, but it seems ridiculous to turn on the machinery of impeachment just to take vengeance against some low-level federal bureaucrat. These impeachments aren’t free, mind you. Between the initial investigation of Porteous spearheaded by the Fifth Circuit Judicial Council (which suspended Porteous from active judging, by the way), the FBI probe that resulted in no criminal charges, the House inquiry, and now the Senate trial, thousands of dollars man-hours have been spent trying to strip Porteous of his federal pension. Meanwhile, there’s a backlog in the Eastern District of Louisiana because one of its judges has been suspended for the past couple years and a new judge can’t be hired until he retires or is convicted by the Senate.
As I alluded to in the beginning, if Porteous were a private arbitrator employed by a company, he probably would’ve been fired long ago without all this tenure-and-impeachment nonsense. But American constitutionalism — supported by folks like Professor Turley — makes firing a bad employee a tragedy of Madisonian proportions. We have to think about the impact removing Porteous will have on our very system of government. We can’t deprive a man of his “right” to a federal pension. And we surely can’t set a precedent that would allow future Congresses to impeach and remove judges with impunity.
These concerns wouldn’t exist in a free market for judicial and arbitration services. Not only would private firms have greater incentives to properly screen and monitor arbitrators, removing ineffectual or corrupt judges would not entail a lengthy bureaucratic process under rules so vague that most of the participants can’t say with certainty what they are. One man losing his job would not trigger a market crisis.
Indeed, the lesson I take away from the Porteous impeachment is not that a pathetic man gamed the system for so many years, but that the system completely failed to take notice until the man neared retirement age. The FBI’s vaunted “background check” failed to discover Porteous’s corrupt relationship with Louis Marcotte, which apparently was in full public view for years. The White House and the Senate did little more than a cursory examination of Porteous before awarding him a job with lifetime tenure. And even now, the Senate isn’t looking into what went wrong with the system; they’re simply looking to scapegoat Porteous and wash their hands of the situation.
The Senate will vote next month on whether to convict Porteous on the four impeachment articles. I predict near-unanimous convictions on all counts. If there’s one thing the Senate is good at, it’s sweeping things under the rug.
{ 4 comments }
There are no words.
>>>Incidentally, John Pickering was the first judge ever removed from office, in 1804, and one of the impeachment articles charged him with public drunkenness and cursing.
Well, I guess I’m disqualified, then.
It is the equivalent of a sleazy motel owner feeling good and proud after smashing a single bedbug!
An FBI background check is basically typing your name into a computer and seeing if anything pops up. They also call your close family and friends you stick on the list, who are unlikely to rat you out. This is the best our government can offer.
Comments on this entry are closed.