Judge Cebull’s Smart Response To His Incredibly Stupid Act
I was going to delve deeper into the Cebull insult of Obama case after Friday’s events, but I now have something else I need to get to, so this is a shorter take. As you will recall, the intertoobz blew up at the end of last week, starting late Wednesday, with the story of Judge Richard Cebull, Chief Judge of Montana’s US District Court, and his email distributed slur on Barack Obama. The incident was first reported by a local paper, the Great Falls Tribune, but quickly hit the national wires.
I am not going to reprint the email, but it is fairly disgusting and very inappropriate (you can see it in the original form here). Numerous outraged individuals and organizations immediately called for Cebull’s resignation. David Dayen has a rundown on some of the loudest, as well as of Cebull’s “explanation/apology”, which has not been accepted to well by those calling for Cebull’s head. And, while Cebull’s statement is indeed less than exculpating, it is pretty much all he could say under the circumstances. Unlike Rush Limbaugh, at least Cebull had the guts to own up to the full weight of his act, even if concurrently inferring “heck I thought it was private”.
You can quibble about whether the “joke” was directly racist, or only indirectly racist in overtone, and I can see both sides of that argument; however, there is no denying that it was in unconscionably bad taste and completely inappropriate for a federal judge to be trafficking in. That’s a given. I am, at this point, far more interested in Cebull’s response which, all things considered, I find pretty crafty.
Cebull immediately admitted his full involvement, did so publicly to the press, and took the affirmative step of immediately filing his own formal judicial complaint – against himself – over the matter, and asked for an inquiry by the judicial council of the 9th Circuit. He also immediately issued a formal written apology to President Obama:
Dear Mr. President:
I sincerely and profusely apologize to you and your family for the email I forwarded. I accept full responsibility; I have no one to blame but myself.
I can assure you that such action on my part will never happen again. I have requested that the Judicial Council of the Ninth Circuit review this matter.
Honestly, I don’t know what else I can do. Please forgive me and, again, my most sincere apology.
Richard F. Cebull
It is brief and to the point and, frankly, there is not much more he can do to erase the stain he left. Which is where it gets interesting. As you can see by clicking on the link to Cebull’s self initiated complaint (there are others that will be later joined, but his was immediately self filed, that will count large), it is submitted to the Chief Judge of the Ninth Circuit, Alex Kozinski. Not only do judges in a circuit tend to stand up for one another, Kozinski himself has had a fairly analogous issue in his past. Kozinski also self reported and apologized, had an independent judicial council evaluate it, and was cleared for further uninterrupted duty. This was key language in the Kozinski finding:
The Judge explained and admitted his error; apologized for it, recognizing its impact on the judiciary; and committed to changing his conduct to avoid any recurrence of the error. The offending material has been removed and will be destroyed. The Judge’s 35 acknowledgment of responsibility combined with the corrective actions he has already completed or has committed to pursue and his apology, along with our admonishment, made public in this opinion, properly “remed[y] the problems raised by the complaint.” Rule 11(d)(2). Accordingly, this proceeding is properly concluded. We find that “all of the purposes of the judicial misconduct provisions are fully served” by this result.
That is exactly the path and result Cebull is playing for, and he has a guide as good as gold to lead him down that path. Here is the kicker, Alex Kozinski is the gatekeeper for this determination as to Cebull!
Here are the rules regarding judicial misconduct as adopted by the 9th Circuit. As you can discern from Rule 5:
When a chief judge has information constituting reasonable grounds for inquiry into whether a covered judge has engaged in misconduct or has a disability, the chief judge may conduct an inquiry, as he or she deems appropriate, into the accuracy of the information even if no related complaint has been filed. A chief judge who finds probable cause to believe that misconduct has occurred or that a disability exists may seek an informal resolution that he or she finds satisfactory. If no informal resolution is achieved or is feasible, the chief judge may identify a complaint and, by written order stating the reasons, begin the review provided in Rule 11. If the evidence of misconduct is clear and convincing and no informal resolution is achieved or is feasible, the chief judge must identify a complaint.
So, under Rule 5, if Kozinski, as the Chief Judge, “identifies” a complaint, it then is considered within the ambit of Rule 11. And what is in Rule 11? Well, Rule 11(a)(2) specifically provides that the chief judge may, at that point, consider the matter:
concluded on the ground that voluntary corrective action has been taken
It is very possible that is exactly what occurs, and is clearly what Judge Cebull is playing for. But, even if Kozinski refers the matter to a “special committee” pursuant to Rule 11 (a)(4), this resolution is still very available. It is also very likely. Cebull gets bonus brownie points for filing the initial complaint against himself, immediately issues a full written mea culpa to Obama and, at the same time takes full responsibility and announces all of it to the press and public.
It is hard to see how Kozinski and the 9th do not find a little sympathy under those facts, and Cebull is betting on it. It is a good bet. And a smart play. I have no brief whatsoever for Judge Richard Cebull, none, but, nevertheless, this is the likely conclusion coming.
Well, Obama’s next step should be obvious: Beer Summit II.
Afterall, this time it would take grace on the part of Obama to insert himself in the situation and make the offer.
And grace on the part of Cebull, an avowed non Obama supporter, to accept.
Of course, if Cebull remains in office, McChrystal might be more miffed than he likely already is.
On the other hand, when you’re forwarding e-mails, you should assume that at some point one is going to reach someone who has strong feelings about the subject in the other direction from you.
Fortunately my relatives mostly don’t send me stuff like that.
While it’s not in the remit of Circuit Judges to have good taste or even common sense, I’d think the inner workings of their prejudices, or lack there of, is especially relevant in meting out justice from the bench. As some pundit opined, minorities convicted under Cebull may be looking for a reversal of their sentences. While the 9th may well cover for their brethren, they shouldn’t.
Oh the guy is a dipshit, hard to have too much sympathy for him. I am sure he did expect it to be private, and it was supposed to only be six people. But jesus freaking christ, he is a federal Chief Judge and it is the President o teh United States. You just don’t do that.
@Arbusto: That’s why it is important to consider whether it was directly racial. There is an argument that it is not. I am not sure I buy that argument at all, but there is one that can be made. I think that is enough to save Cebull here.
@bmaz: Yes, but won’t this come up in the future? Any case involving race in the future, won’t a lawyer ask for Cebull to rescue himself?
@Phil Perspective: May be a problem should there be a rash of criminal or civil litigation involving black Presidents in Montana. Short of that, not sure the 9th Circuit or federal judicial councils are going to find a disqualifying problem. I actually kind of hope they find a bigger issue here, but don’t see it happening.
The apology is of a kind we commonly hear. Meaningless (sending the email’s hardly the problem), juvenile, snarky, smart-alecky, exactly the kind of thing you hear in junior high. (Recall how just days ago Limbaugh, after he’d called a woman a “slut,” apologized by saying it wasn’t “personal.”)
Nor is it a surprise that there are people with racist views, even in the Judiciary (stocked as it has been over the course of three decades with GOPpers).
The more pertinent issue is his admission that he “sent [the email] out because it’s anti-Obama.” The purpose of the lifetime appointment is to remove judges from the political passions of the day. With this stunt, how can he possibly meet his obligation to appear impartial and to display the required judicial demeanor and temperament?
To Phil Perspective’s point, it’s not just race cases that will trigger demands for recusal.
The joke wasn’t just racist, it was sexist and slut shaming, too. So, any person who is female and/or not white can ask this idiot to rescue himself from their case. Pretty much the only people he can stand in judgement of is old white dudes. He shouldn’t even be able to hear cases that involve dogs.
His action is a racial slur.
He should resign.
Apology, my arse.
Charlie Pierce writes about Rush L, and the same came could be said of
the dear judge…..
“Does any of that remotely constitute an “apology” to you for what he said about your daughter? Does any of that make you more likely to trust in the good faith of anything this Viagra-sponging pillhead says in the foreseeable future? Does any of that make you less likely to kind of wish, at least in your heart of hearts, that you could perform orthopedic surgery on this guy with a Louisville Slugger?”
@Mary McCurnin: Morally I agree with you; legally, I think the situation is rather different.
I would be thrilled if Cebull voluntarily resigned, but he is not doing that. Absent such a voluntary move, I am a little hesitant to start a trend of trying to heckle Article III judges with lifetime tenure from their seats, especially without an investigation to see whether he has ever particularly exhibited racist or misogynistic tendencies in the performance of their duties. The 9th Circuit will look for that. But you would think that if there was any kind of real record of this, it would have started coming out already, and as far as I can tell, there is nary a peep of that. We shall see.
But keep in mind that the other side is much better at this than we on the left are, and they have a very well oiled loud noise machine that will support them. Do we really want to set this precedent if there is no active judicial conduct to support the claim Cebull is a “racist” or “misogynist”? I am not so sure about that.
But, for the reasons I laid out in the post, it is most likely an extremely moot question; on the record as it stands today, Cebull is not resigning, it is unlikely the 9th will do anything more than admonish him, and there is not a chance in hell of impeaching him. Cries to “sign petitions” etc. seem kind of like opportunistic attempts to list build and premature. All for what it is worth.
By the way, based on my experience with recusal attempts, both personally and that I have seen over the years in other people’s cases, without much more evidence and support, there is about zero chance the federal court system will find this isolated incident grounds for mandatory recusal in any of the categories suggested.
I heard that he has hired Lockhart & Gardner to defend his indiscretion.
@Bay State Librul: Too bad Will Gardner was not a federal judge. Actually, he would still have been in hot water; but probably not after 15 years. Good Wife is a really great show I might add.
My favorite is the former Mr. Big.
Super Sunday followed by Super Tuesday
A conservative, a liberal, and a moderate walk into a bar. The bartender says, ‘Hi, Mitt.’
@Bay State Librul: Heh.
So much for that judicial philosophy that justice must not only be done, it must be seen to be done – and, to be seen as done. That is, it must be both public and the process and result must appear to be the rendering of justice.
An essential element in the rendering of justice is that a judge be disinterested and impartial, that she have no skin in the game and that she determine the outcome on the merits of the case regardless of that outcome’s impact on the powers that and themselves. By that standard, this is an own goal.
As for the claim that the process here involved “self-reporting”, it is meretricious. The inappropriate comments were widely publicized and for attribution. It would have been impossible credibly to deny them. The only way to avoid “self-reporting” would have been to deny the comments, a step already discarded, or to have said, as well as implied, “fuck you” to the 9th Circuit.
This process is in the form favored by the corporate apology industry. It complies with the form, but not the substance. It gives this judge a freebie, a consequence free act, and a do over. In short, it games the system instead of honoring it. And that is a big “fuck you” to all the rest of us.
@earlofhuntingdon: I do not disagree. But I am also hesitant to set low standards for hissing federal judges off the bench. I dunno, I will be interested to see what else is rattling around in Cebull’s closet. If there really isn’t much, then I am probably okay with what I think happens. If there is much of anything else that turns up, not so much.
So, he pulled a McChrystal.
He still should get the response from Obama, that leaving now is the way to go. Have the local US Attorney deliver it.
Yep another day at the office and NO ONe Goes To Jail. I love this that know one feels the pain but Main Street
Everything is on schedule, please move along
@jo6pac: How the hell is anybody gonna go to jail for this?? There is nothing even remotely criminal involved here.
@scribe: But Obama really has no say so on that. Obama probably wants to have the asshole over for a “Beer Summit” as pdaly noted back up in the first comment.
Red-State ideologues are aggressive fish-like opportunists that respond well to the splash, bubble trail and action of an attractive lure.
Fishing has been good lately.
with the excesses of the 2008 primary, i became very tired of hearing charges of “racism” regarding any critical comment about obama. it wasn’t that there was no merit to any of the charges; it was that accusations of “racism” became a tool to suppress dissent and engage black southern voters. many such trivial charges were lobbed at obama critics.
david axelrod, an expert in getting black officials elected, was, i suspect, the mastermind behind this tidal wave of “racism” charges – including charges of racism against both bill and hillary clinton, charges belied by the clinton’s political efforts and personal efforts over their lifetimes.
president obama’s mother was an eighteen-year-old, white, college freshman when she got pregnant. this joke seems to me to be more an insult to young college woman than any kind of racial insult.
that the judge’s behavior was folly can’t be denied. that it probably does not merit any more serious action than a reprimand seems sensible. after all, by his actions the judge has destroyed any career advancement for which he might have harbored hope.
as for president obama, a gracious acceptance of the judge’s apology and then total silence will be sufficient and necessary – and that is what the prez will do.
for historical context,
consider this comment/joke about g.w. bush which we had on our refrigerator for years and remains among my favorites:
“somewhere in texas a village is missing its idiot.”
or another favorite, also on our fridge:
a fake seed packet with g.w. bush’s face rendered in alfred e. neuman style labeled “genuine texas dope”.
The Judge speaks in code….
if you have not already read this you might be interested. it relates to a column of yours a couple of weeks back:
a quote to judge the flavor:
“…The group of nine headed by Chief Justice John G. Roberts Jr. is an “outlier” in several ways from the 105 versions of the court that have come before, wrote Barton, who teaches law at the University of Tennessee.
“Roberts Court justices have spent more pre-appointment time in legal academia, appellate judging, and living in Washington, D.C. than any previous Supreme Court,” Barton wrote. “They also spent the most time in elite undergraduate and law school settings.”
Time spent in those pursuits, according to Barton, means a deficiency of other experiences.
“The Roberts Court justices spent less time in the private practice of law, in trial judging, and as elected politicians than any previous court.”
In fact, the Roberts court is the first to not have a justice who previously served in elected office. As Barton notes, Supreme Court justices have included a president, several governors and mayors, 14 senators and 17 representatives. When Justice Sandra Day O’Connor, a former Arizona legislator, retired in 2006, it broke a string of politicians on the court that dated from its creation in 1789…”
Judge Cebull, meet Rush Limbaugh.
@orionATL: Oooh, thanks! I agree with that completely. It is simply impossible to understand and know trial how courts operate, the prejudices that occur in them, what real evidentiary issues are in the trenches etc, without having a little experience in them. And for all the talk we do here about appellate law, 95% of Americans interact only with the lower trial court systems of the local, state and federal governments. It is critical to have some functioning sense of that in appellate judges. That was my main complaint about Kagan.
So what if he expected it to be private- I couldn’t even read that trash to my husband when we spoke about the issue! Can’t get much more private than that. This is as much against young women as people of color. The joke is another voice for the Limbaugh accusations against any young female college student.
Apparently his 6 closest friends aren’t part of normal society either.
I would ask for review of any case involving Women too.
@Palli: It is important because of intent. People have a reasonable expectation of privacy in their own private First Amendment protected political speech. Sometimes things get into the public domain that were never intended, which is what happened here. It is an important criteria that this was something he did off the bench, in his personal persona, not that as a judge on a case.
The First Amendment means nothing if it does not protect speech that makes your blood boil and that you disagree with vehemently. It is not to protect that which everyone agrees is dandy.
@bmaz: This is why one should NEVER forward any email.. Always cut and paste it first. Too many folks do not snip off all of the lingering email addresses. A cop in Dallas got fired because he used his official laptop to forward something and then someone else forwarded it to someone etc etc. then someone forwarded it to his boss.
@Rob: That is a decent point in some cases; but here I think Cebull still gets wounded. Somebody one of his six family/friends forwarded to knew his name and position.