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When Judges are Racist—A Commentary by Adam Cohen

The following commentary was posted on Time.com on March 12, 2012.

When Judges are Racist
By Adam Cohen

What do you do with a federal judge who approvingly forwarded an e-mail “joke” suggesting that President Obama was conceived when his mother had sex with a dog? That is the question some members of Congress, lawyers’ organizations and public-interest groups are now asking. The right answer: try to get him to understand why he needs to resign from the bench.

Judge Richard Cebull, the chief judge for the district of Montana, last month forwarded an e-mail from his official court e-mail address, with the subject heading: “A Mom’s Memory.” The text related a story: “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!”

In a note introducing the joke, Cebull said that he normally did not “send or forward a lot of these,” but that he found this story “a bit touching ... Hope it touches your heart like it did mine.” Cebull admitted sending the e-mail to seven e-mail addresses, including his own personal one. When the message became public, the judge sent a letter to President Obama apologizing “profusely” to him and his family and promising that “such action on my part will never happen again.”

There were quick calls for Cebull to resign, including from the liberal nonprofit group Common Cause and from Representative Charlie Gonzalez, a Texas Democrat, the chairman of the Congressional Hispanic Caucus. Insisting that he is not racist — though admitting that the e-mail was — Cebull himself asked the San Francisco–based U.S. Court of Appeals for the Ninth Circuit, which supervises his court, to investigate him for judicial misconduct.

But it’s clear where he misstepped: Cebull’s actions violated federal judicial rules, notably Canon 2 of the Code of Judicial Conduct for U.S. Judges, which requires judges to always act “in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” An official commentary on the rule says there is an appearance of impropriety when “reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge’s honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired.”

What Cebull did was not simply an isolated act of racism — it was a public proclamation that he considered this joke to be funny, or “touching,” rather than loathsome. Now that the public has looked into the ugliness of his mind, there is no way to erase what we have seen. Which raises a question: How are racial minorities who have business before the Montana district court supposed to feel if their case is assigned to Judge Cebull? What about biracial litigants? If he rules against a plaintiff in a race-discrimination case, it would be hard to escape the thought that he did so because of his own prejudice. In other words, Cebull’s impartiality, temperament and fitness to serve have been impaired — irretrievably.

Two leading Democratic members of the House Judiciary Committee — Representatives John Conyers of Michigan and Steve Cohen of Tennessee — have called for a hearing into Cebull’s e-mail. That would be a good next step. Perhaps the e-mail was a onetime mental lapse, but that is unlikely — people who engage in racist communications generally don’t do it just once. A hearing would allow Congress to investigate whether there are other instances in which Cebull has acted in a racist way.

The Republican chairman of the Judiciary Committee has not yet responded to the request. If there is a hearing, it could lead to a range of punishments, up to and including impeachment. There is no room on the federal bench for a judge who does not treat all people as equal before the law. At the same time, it is hard to be completely comfortable with the idea of Congress removing federal judges from office for offensive writings. If such oversight is taken too far — as some members of Congress might be inclined to do — it could greatly diminish the federal judiciary’s independence.

Which is why the best solution would be for Judge Cebull simply to resign. He would be showing personal responsibility for an ugly action and placing the larger interests of justice above his own personal desire to remain a federal judge. It would be a noble act — in fact, it would be touching.

Cohen, the author of Nothing to Fear, teaches at Yale Law School. The views expressed are solely his own.