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Nothing to See Here? On Judicial Misconduct, House Judiciary Begs to Differ

Fix the Court applauds bipartisan effort to hold misbehaving judge accountable

House Judiciary leaders excoriated three different levels of judicial administration today, castigating them for a weak response to the sexual harassment and other wrongdoing perpetrated by District of Kansas Judge Carlos Murguia just months after a branch-wide review of misconduct policies took place.

In a letter to AO’s Jim Duff, Tenth Circuit Chief Judge Tim Tymkovich, and District of Kansas Chief Judge Julie Robinson, Chairman Jerry Nadler, Vice Chair Mary Gay Scanlon, Courts Subcommittee Chair Hank Johnson and Rep. Jim Sensenbrenner asked them to assess the “adequacy of the Judiciary’s recent steps to better protect its employees from wrongful workplace conduct” in light of the “serious, longstanding, unaddressed harm” caused by the judge’s actions.

The four added that they “find it difficult to square the public record regarding Judge Murguia’s misconduct with the Working Group’s guiding principles and status report.”

After a yearlong investigation, Murguia was found by the Tenth Circuit Judicial Council on Sept. 30, 2019, to have “committed judicial misconduct by sexually harassing judiciary employees; engaging in an extramarital sexual relationship with an individual who had been convicted of felonies in state court and was then on probation; and demonstrating habitual tardiness for court engagements.”

Instead of the Council requesting that the judge voluntarily retire or forwarding the complaint to the Judicial Conference with recommendation to refer this matter to Congress for impeachment – both options available under federal law – Murguia was back on the bench the following Monday, Oct. 7.

Writing on behalf of the Council, Tymkovich said the appropriate response was to detail these findings publicly and to privately come to an agreement with Murguia on “certain corrective actions.” The public still does not know what those corrective actions are or how effective they may be. Today’s letter aims to shed light on this lack of information.

“When a judge’s actions weaken the public’s faith in the judiciary, the remedy should not be kept secret from the public,” FTC’s Gabe Roth said. “For the post-Kozinski misconduct rules to have any teeth, they should be applied transparently, assuming they’re being applied at all. I applaud the four House Judiciary leaders for digging further and urge the judiciary to respond in good faith.”

This letter comes as the House Judiciary’s Courts Subcommittee announced it will be holding a hearing on “Protecting Federal Judiciary Employees from Sexual Harassment, Discrimination, and Other Workplace Misconduct” at 8:30 a.m. on Thurs., Feb. 13, in 2141 Rayburn.

Additional information:
The Judicial Council order was itself contradictory. A footnote on p. 6 states, “[T]he evidence and facts in this matter are insufficient to recommend the Judicial Conference refer this matter to Congress for impeachment.”

Yet the description of the misconduct belies this conclusion. In his own words, “Judge Murguia’s relationship with a convicted felon on probation could cause ‘reasonable minds, with knowledge of all the relevant circumstances,’ to ‘conclude that the judge’s honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired.’”

Murguia has contravened the requirement that a judge maintain “good behavior” in office. Thus the appropriate recourse should be more than a slap on the wrist.

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