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Porteous impeachment highlights need for careful nominations of federal judges

David O. Stewart [Constitutional Lawyer, Author]: "I spent way too much time following the Thomas Porteous impeachment trial, having defended an impeachment trial in 1989 (Judge Walter Nixon) and having written a book about another (Impeached: The Trial of President Andrew Johnson and the Fight for Lincoln's Legacy).

There were some novel issues in the Porteous trial. It is the first time a judge was removed for conduct which occurred before he took the federal bench (Articles of Impeachment [PDF], Article 2). There may be pre-federal conduct that would warrant impeachment and removal, but there was no need to pursue that theory in this case. This also is the first time such pre-federal conduct was bootstrapped into an impeachable offense by accusing the office-holder of failing to disclose it during Senate confirmation proceedings (Article 4). It is both a clever theory and a fair one. A nominee for high federal office is on ample notice that his or her application materials have to be true. 

The argument that most stuck in my craw was the repeated plea by defense lawyers that Judge Porteous' conduct should be overlooked because, well, everyone in his home town of Gretna, Louisiana acts like that. This "Gretna Defense," as it came to be called, is appalling. If everyone rapes their children in a community, does child rape cease to be a crime? 

I am particularly offended by the Gretna Defense because I represented a judge from the deep South in an impeachment trial; it never occurred to us to argue that a different standard should apply to a judge's conduct in one part of the country than in another. Porteous and his lawyers deserved to get stuffed on that one.

There is, however, a factual component to the Gretna Defense which should give pause to senators and federal judges from the South. In the last two decades, every federal judge who has had a major ethical/legal problem has been from a member of the old Confederacy. These include:

Judge Alcee Hastings (Florida) (impeached, 1989)
Judge Walter Nixon (Mississippi) (impeached, 1989)
Judge Robert Collins (Louisiana) (criminal conviction, 1991)
Judge Sam Kent (Texas) (criminal conviction, 2009)
Judge G. Thomas Porteous (Louisiana) (impeached this month)
Judge Jack Camp (Georgia) (criminal conviction, 2010)

I am not philosopher or sociologist enough to concoct an explanation for why so many men from one part of the country would engage in such high-risk behavior after becoming federal judges. Something, to be sure, is afoot here. But at the very least there is work to be done by the senators from those states who nominate federal judges, the Southern lawyers whose bar associations recommend them, and the other judges who serve with them.

Pull up your socks, guys. The Gretna Defense does not, and should not, work."

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