I recently learned more than I expected about the federal judiciary. I’ve been reporting on the continuing brouhaha over a Montana judge’s racist and sexually explicit emails. Briefly, Native Americans went to court in 2014 to demand that the messages be preserved in case they’re needed to prove bias in a range of civil and criminal cases.
One federal judge agreed with the Native plaintiffs, then backed down when a top oversight group—the Committee on Judicial Conduct and Disability of the Judicial Conference of the United States—went into damage-control mode and asked that the decision be “reconsidered.” An attorney for the committee explained in court filings that without the secrecy judges enjoy, they and others might not voluntarily participate in future misconduct investigations, thus harming those inquiries, the Associated Press reported in May.
Two Montana reporters, one of whom had broken the email story, sued separately to get the messages as a matter of freedom of the press. Now, having quashed the Native suit, the judicial Big Dawgs are going after the reporters’ claim as well.
OJ Semans, the Rosebud Sioux co-director of lead Native plaintiff Four Directions, remarked on the scale of the misdeeds: “Think about it. Not only did Judge Cebull feel free to send derogatory and salacious emails to colleagues, but they were comfortable sending such matter to him—right to a judge’s chambers. This was a common, accepted activity in a federal courthouse for years.”
Semans noted that many of Cebull’s messages may still be out there—archived in numerous email accounts around the country. He predicted that efforts to keep the correspondence secret will ultimately fail. He challenged Cebull’s email buddies to come clean, warning, “You will be found out.”
Here’s how it started: For four years, Montana’s former chief federal judge, Richard Cebull, used his court email account to send hundreds of messages disparaging Native Americans, blacks, Latinos, women, gays, liberals and some religions. While on the bench, Cebull sentenced people from these population groups and heard tribal voting-rights and water-rights litigation.
The content of only one email is publicly known—a “joke” linking bestiality and the President’s mother that was forwarded and landed in Montana reporter John Adams’s inbox. His resulting article, in 2012, caused a ruckus that reverberated from the halls of Congress to the Pacific coast.
Montana is part of the Ninth Circuit, so its head judge, Alex Kozinski, chaired the first investigation of the matter. Cebull retired during the process, and Kozinski said that made the affair “moot.”
So what about Kozinski? In reading up about him, I learned that in 2008 he had to recuse himself from an obscenity trial he was hearing. According to theLos Angeles Times, Kozinski disqualified himself by placing images on a home computer that, unbeknownst to the judge, could be accessed via the Internet. The material that went public included women on all fours and painted to look like cows, public sex and more.
Kozinski took the material down, though he and his wife also went on the offensive/defensive. “People send me stuff like this all the time,” Kozinski told the Los Angeles Times. His wife told a blogger that the newspaper article was riddled with “half-truths” and “outright lies,” suggested that one of their sons may have put up some of the material and, in any case, downplayed it as “raunchy humor.”
A judges’ oversight group was not amused. It told Kozinski he had embarrassed “the institution of the federal judiciary.” He accepted responsibility and apologized—and that, in the words of the court, “properly conclude this proceeding.”
Fast forward to 2012: Kozinski, though unfit to hear an obscenity trial a few years before, is now probing the Cebull scandal. Cebull retired during the process, and Kozinski suppressed the Ninth Circuit’s first report and replaced it with a milder one.
The Committee on Judicial Conduct and Disability of the Judicial Conference of the United States stepped in. It investigated, announced its results in January 2014 and ordered publication of the suppressed report (starting at page 13). However, the Committee still kept the emails’ contents under wraps.
Four Directions, a former Crow chairman whom Cebull sent to prison without a trial and others sued for preservation of the messages. The Coalition of Large Tribes—including Navajos, Oglalas and others—supported the effort.
Identifying everyone involved in sending, responding to and forwarding the Cebull emails is essential for the justice system’s health, said Lita Pepion, who is Blackfeet and a board member of another of the Native plaintiffs, Indian People’s Action. She noted the extreme over-representation of Native men, women and children in prisons in her home state, Montana, as well as in other states around the country. “We can’t afford not to,” said Pepion. Attorneys for the judicial oversight group did not respond to requests for a comment.
I checked with Anthony Paonita, editor-in-chief of Corporate Counsel magazine, about the veil of secrecy, or immunity, that judges are so determined to hold onto. He explained that it is a relic of the days when sovereigns had immunity, and royal judges did too, as their representatives.
However, our judges’ immunity is for actions that are part of their job. If the nation’s top judicial oversight group wants us to believe that sending perverted and hate-filled messages is all in a day’s work for judges, we have learned some disturbing things about the federal judiciary.