Thursday, March 1, 2012

Wow. Just. Wow.

UPDATE: The Associated Press Reports that Judge Cebull has asked the United States Court of Appeals for the Nineth Circuit to investigate whether he engaged in judicial misconduct by sending the email.


As I mentioned yesterday, one of the beautiful things about being alive is the chance to learn something new every day. Today, for example, I learned that United States District Court Judge for the District of Montana Richard Cebull doesn't like President Obama or the president's dead mother and likes to use his work email to discuss these topics with his friends.

How did I learn this? Thanks to the intrepid reporting of the Billings, Montana Gazette and the Great Falls, Montana Tribune. Both papers ran stories on Judge Cebull's, um, email problem. The Tribune story is here. The Gazette story is here.

Both papers report that Judge Cebull, a George Bush appointee and chief judge of the district, used his official email address to send out an email. The subject line of the email is "A MOM'S MEMORY." The text of the email is:

Normally I don't send or forward a lot of these, but even by my standards, it was a bit touching. I want all of my friends to feel what I felt when I read this. Hope it touches your heart like it did mine.

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 admits that he sent the email to his personal email address and to six "old buddies." One of these "buddies" wasn't too good a friend to the judge because the friend (I am assuming it is a he because I can't imagine sending such an email to a woman. On the other hand I can't imagine forwarding such an email period so perhaps this is a bad assumption) forwarded the Judge's email to someone else who recognized it as newsworthy and gave it to the Tribune.

To his credit Judge Cebull recognizes he made a mistake. He told the Gazette, "To say it's inappropriate and stupid is an extreme understatement." The Judge went to say that there was "no doubt" that the email was racist but that the email wasn't "forwarded for that purpose." According to the judge, "If anything, it [the email] was political." The judge told the Tribune that he sent it "because it's anti-Obama."

One might question what political message is found in an email suggesting that President Obama's mother had sex with a dog on the night the President was conceived. Perhaps the political message is pro-contraception. Or perhaps its that a person whose mother has sex with multiple partners on one night should not be president. The latter message differs from the qualifications for President found in the Constitution. I guess Judge Cebull isn't an originalist.

Critics have suggested that the email is racist because it implies that a woman willing to have sex with black men would also be willing to have sex with dogs. Judge Cebull says that he isn't racist but agrees that people will view him as one. The judge told the Gazette that he doesn't "blame" people who reach that conclusion but "[t]he fact is that isn't how I've conducted myself as a federal judge. Never has anybody asserted I was racist." he said. The judge told the Tribune, "All I can emphasize is I've treated people in my courtroom all these years fairly. I don't think I've ever demonstrated racism. Nobody has ever even implied it."

To the extent I was with him, Judge Cebull lost me on the last sentence. The fact that no one who appeared before the Judge called or implied that he was racist doesn't strike me as evidence of anything. After all, who would possibly think it was an effective form of advocacy to call the judge hearing your case a racist? On the other hand, Mr. Torvik, who worked for a federal judge, may have seen this form of advocacy. If he did, I bet it didn't work. UPDATE: As Mr. Torvik points out in the comments below, we have posted on this type of advocacy before.

One thing that neither story mentions is whether Judge Cebull's email runs afoul of the Code of Conduct for United States District Court Judges. Cannon 2(A) of the Code states:

Respect for Law. A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
It is hard to see how using his official email to send a message that Judge Cebull believes is "anti-Obama" is acting in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Given his "anti-Obama" views why would the public believe that the judge would impartially consider laws, rules, or regulations that were passed as part of the President's agenda.

Moreover, Cannon 5(A)(2) of the Code states provides that a judge may not, "make speeches for a political organization or candidate, or publicly endorse or oppose a candidate for public office." A speech, of course, is the expression of thought in spoken word. So the email isn't a speech. It also wasn't intended to be public (although it certainly became public). However, in using his "anti-Obama" reason to explain why his email isn't racist, Judge Ceball, perhaps unintentionally, gave a speech opposing a candidate for public office. It certainly feels like this violates Cannon 5(A)(2). In either event it doesn't help one feel too confident about the federal judiciary in Montana.

Mr. Torvik has sometimes suggested that I lack the capacity to feel empathy. I don't think that is exactly true. I do feel bad for Judge Cebull. If it hasn't already, this incident will generate more publicity for the Judge than everything else in his legal career. When the judge dies it will be part, perhaps the lead part, of his obituary. Arguably that is a heavy price to pay for a momentary lapse in judgement or, perhaps, descent into idiocy (although some will find it unlikely that the Judge was discovered sending this type of email the very first time he did it).

At the same time, I feel bad for the President. On the one hand, he volunteered to enter public life and, politics being what they are, haters are gonna hate. But at the same time, I was raised that picking on a guy's mom was off limits and doing so was a surefire way to get an invitation to an ass kicking.

Following up on that point, I also feel bad for President Obama's mother. I recognize she's dead and can't be hurt by the trash that Judge Cebull sees fit to send from his taxpayer-funded email address. However, I assume she is someone who lived her life the best she could and tried to do the best she could for her kids, including the President. Part of her reward for that effort is that knuckleheads are sending around emails suggesting she has sex with dogs.

Finally, I feel bad for us, the American people. This email is supposed to pass for some sort of political discourse. It is supposed to pass for political discourse from a member of the third branch of government at that. Is this what things have come to in this country? If so, it brings to mind the words of Joseph N. Welch at the Army-McCarthy hearings, "At long last, have [we] left no sense of decency"?


  1. Hmm.

    First, let me make clear that I know you have the capacity for empathy. We just all have our blind spots, and I take great pleasure in pointing yours out.

    Second, I never saw the "judge, you are a bigot" argument made when I was clerking. The closest I saw was tax protesters, who were openly contemptuous of the court and the proceedings against them. But I have heard of this happening at least twice, and it worked once:

    (a) The recent "Catholic Knight Witch Hunters" episode in the District of Minnesota Bankruptcy court. This one did not work out well for counsel.

    (b) A while back we discussed a case where a judge was accused of making bigoted comments during a criminal sentencing, and the defendant won his appeal on that basis (though I doubted he should have). That judge will never be able to honestly say that no litigant has accused him of bigotry.

    Third, I think this was very poor judgment by the judge, as he has acknowledged. And the joke has racist undertones at least. But it is just a joke. I can't really get all that worked up about it. I think you're probably correct that this isn't the first time this judge has exhibited poor judgment or passed along something in poor taste, so I don't blame anyone for concluding from this episode that he's a boor or worse. But Joseph McCarthy he is not.

  2. It is a tribute to how quickly one can forget something that I didn't remember the Catholic Knight Witch Hunters episode.

    To your last sentence, I don't think I was calling the judge Joseph McCarthy or comparing the judge to that infamous Wisconsin senator. The use of the phrase was meant to evoke the depths to which we have sunk. When he made the statement, Mr. Welch was simply saying that at a certain point there is no need to beat up on someone, regardless of whether they "deserve" the beating. So it is here, has society run so far down the list of negative things one can say about President Obama (secret socialist, secret muslim, secretely not a citizen) that we now have to cast his mother as someone who has sex with dogs? Where is our sense of decency? That is why I put the word "we" in brckets and not the words "the judge."

  3. By the way, it's looking like we are going to need a "Montana" label.


Comments on posts older than 30 days are moderated because almost all of those comments are spam.