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When Judges Judge Judges

Richard Cebull, the chief federal district court judge in Montana, went into damage control mode recently after newspaper reporters in his state discovered a racist and sexist email Cebull had sent to six close friends insinuating that President Obama’s mother had had sex with a dog.

Cebull, seeking to short-circuit the scandal he ignited, quickly requested that his peers on the Judicial Council of the Ninth Circuit (that includes Montana) investigate him to determine if he engaged in any inappropriate and/or unethical conduct.

Cebull’s request for a judicial council investigation raises the rarely examined issue of the practice of judges judging themselves on misconduct related matters.

Cebull had compounded his initial offense of sending the racist email by defending that email, telling reporters he considered the odious content anti-Obama not racist.

Federal law bars federal judges from engaging in both partisan and bigoted activity – twin requirements breached by Cebull’s action.

Cebull told his email receiving buddies that he hoped the content touched their hearts like “it did mine” – a lame attempt to spin the ugly content as a harmless joke.

So, what was the content Cebull considered touching enough to send to friends who forwarded that content to others?

“A little boy said to his mother, ‘Mommy, how come I’m black and you’re white?’ His mother replied, ‘Don’t even go there Barack! From what I can remember about that party, you’re lucky you don’t bark!”

Cebull, days after requesting peer review, then sent an apology letter to President Obama, in which he said he accepted “full responsibility” for his egregious act and promised the President that it “will never happen again.”

In that letter, after informing Obama of his request for Judicial Council review, Cebull curiously stated that he “honestly [didn’t] know what else to do” – apparently blind to the obvious reality that honor to his oath of office to uphold the Constitution and to administer justice fairly requires his resignation.

If a judge (federal or state) can’t see the glaringly offensive racism and sexism in passing along content calling President Obama’s African father a dog and his mother someone who would have sex with a dog needs to resign because that jurist lacks a capacity essential for judging: recognizing wrong.

Many parties will never again see Cebull as possessing the capacity to preside in his courtroom in an impartial, non-biased/non-partisan manner required of judges.

When U.S. Supreme Court Chief Justice John Roberts issued his latest annual report on the judiciary, suspiciously at 6PM on Saturday December 31, 2011 – New Year’s Eve–Roberts expressed complete confidence in the integrity of judges, including his Supreme Court colleagues.

Certainly Roberts was aware of the public furor including some members of Congress directing harsh criticism at Roberts’ high court colleague, Justice Clarence Thomas.

Thomas was exposed for filing false financial disclosure forms that failed to list over $1 million dollars in payments and gifts received by his wife, a right-wing activist.

If Chief Justice Roberts turns a blind-eye to unethical conduct of Supreme Court colleague Thomas, will he see fault in the inappropriate acts by other federal jurists like Richard Cebull?

Roberts, like Cebull, is an appointee of President George W. Bush, who selected whites for 82% of the 325 judges he slotted into federal district and appellate courts.

Bush, committed to embedding ideological conservatives into the federal judiciary, did little to improve the paucity of diversity in the federal courts.

Perhaps Cebull’s Ninth Circuit judicial peers can see the misconduct in Cebull’s irresponsible race-tainted behavior that the Chief Justice cannot.

But federal judges finding fault in clearly flawed behaviors of a colleague is hardly a certainty.

Late last year the Third Circuit’s Judicial Council in Philadelphia dismissed a formal complaint that a Delaware man filed against federal Magistrate Judge L. Felipe Restrepo after the Council completed its investigation, which appears to have been conducted by people wearing blindfolds.

Hampton Coleman, a military veteran and retired federal worker, filed that complaint after U.S. Marshals, prompted by Restrepo, trampled Coleman’s First Amendment rights by making an intimidating visit to Coleman’s home, where Coleman said they threatened him.

Coleman sent Restrepo a three-sentence, 28-word letter last May voicing concern about bias he felt Restrepo exhibited in a case involving race discrimination.

Restrepo told the marshals that Coleman had threatened him in that mildly worded letter, which merely stated in part that “Justice is supposed to be blind,” and added, “We the people are watching and listening very carefully.”

The First Amendment includes provisions for freedom of speech and the right to “petition the Government for a redress of grievances” – protections the Third Circuit’s Judicial Council perversely concluded did not apply to Coleman, when the panel dismissed his complaint.

The U.S. Marshals – assigned to protect federal judges – told Coleman not to send any future letters directly to Judge Restrepo, thus trampling Coleman’s Constitutional right to seek redress of grievances.

The race-discrimination court case which prompted Hampton Coleman’s complaint against the magistrate judge involved Coleman’s nephew, Reginald Roberts, who was suing officials in Pennsylvania’s Montgomery County, a suburb of Philadelphia.

Freedom of speech was a core issue in the lawsuit filed by Roberts, who was challenging Montco officials for firing him from his position as the only black front-line detective in that county’s DA’s Office.

The firing of Roberts occurred in August 2008 after Roberts had formally complained about racism directed against him during his nine-year DA detective tenure — racism that included assigning him to a mold-filled basement office where he ended up contracting TB.

Roberts claimed the firing was retaliation for his protected Free Speech opposition to hazardous working conditions and to racism on the part of his superiors in the department.

When Montco officials fired Roberts, allegedly for poor job performance, Roberts was serving as the president of the Pennsylvania Narcotics Officers Association. He had received outstanding job performance evaluations up until the point that he complained about the hazardous work conditions and the racism to which he was subjected.

That firing took place one day after the Pennsylvania state Human Relations Commission held a hearing on a discrimination complaint Roberts had filed.

Weeks ago Roberts sought the removal of the federal jurist who replaced Magistrate Restrepo in his discrimination case. Roberts felt that Bush appointee Judge Timothy Savage exhibited unfair bias favoring the discriminatory Montco defendants similar to the bias exhibited by Restrepo before him.

Savage, for example, stripped critical components from Roberts’ race discrimination case in an unusual off-the-record January 9, 2012 pre-trial conference that Roberts was barred from attending.

Savage did restore those components during a February 21st proceeding, prompting Roberts to withdraw his formal request to remove Savage from presiding at the pending trial. “I will bring all claims back into the case,” Savage said on February 21st, assuring Roberts he would be fair.

But days after that Feb 21st proceeding, Savage reversed his courtroom promise to restore “all” components to the case by issuing yet another removal order.

Hours before the beginning of testimony on March 1st, Savage struck again, barring Roberts’ retaliation/First Amendment violation claims. This forced Roberts’ attorney to quickly reformulate his entire case.

Reggie Roberts and his attorney then renewed their request that Savage assign the case to another judge, citing Savage’s breaking of his courtroom promises and his publicly referencing confidential information about a matter under review by the Third Circuit’s Judicial Council.

That information involved an appeal of the Council’s dismissal of Roberts’ complaint against Restrepo — an appeal that Savage should not have known about under Council procedures that require keeping its deliberations confidential.

Savage rejected that reassignment request, despite a federal law stating disqualification of a judge is required when a party raises reasonable questions about a judge’s impartiality.

During the trial, Savage restricted Roberts’ attorney from presenting favorable evidence and from calling certain witnesses.

The all-white jury hearing the lawsuit involving race discrimination, unable to hear all of Roberts’ evidence due to Savage’s rulings, deliberated for 45-minutes (including lunch) before ruling against Roberts.

Roberts feels Savage’s adverse rulings against him exhibited retaliation for his having filed complaints against Restrepo. Court rules bar Savage from responding to inquiries about Roberts’ allegation.

Injudicious actions by jurists like email-sending Judge Cebull and Justice Thomas, who fudges on reporting finances, cripple a critical function of federal court officials: promoting public trust in the judiciary.

Linn Washington, Jr. is a founder of This Can’t Be Happening and a contributor to Hopeless: Barack Obama and the Politics of Illusion, forthcoming from AK Press. He lives in Philadelphia. 

 

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Linn Washington, Jr. is a founder of This Can’t Be Happening and a contributor to Hopeless: Barack Obama and the Politics of Illusion, (AK Press). He lives in Philadelphia.

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