From The Root:
When 'Sorry' Isn't Enough for Racism
By: Sherrilyn A. Ifill
Posted: March 2, 2012 at 5:55 PM
Why we shouldn't accept an apology from the federal judge who sent an offensive email about Obama.
Montana judge Richard Cebull has apologized to President Obama for emailing a disgusting, racist joke at the expense of the president, the president's mother and Cebull's own dignity. If I know our high-minded, dignified president, he will accept the disgraced federal judge's apology. He should not.
For any sober, thinking person, the email in question, in which the punch line suggests that Obama's mother was both promiscuous and into bestiality, is of the kind that should warrant an immediate delete. But the decision by Cebull, the chief judge of the federal district court in Montana, to send the email to several of his "buddies," using his federal email account, bespeaks a certain recklessness reflected among those who have lost all sense of respect and decorum in their opposition to our president.
From Rep. Joe "You lie" Wilson (R-S.C.) to Gov. Jan Brewer (R-Ariz.) pointing her finger in the president's face, to embattled Maricopa County Sheriff Joe Arpaio's claim that Obama's long-form birth certificate is a fake, open displays of contempt for the president reflect a dangerous strain among public officials who feel unrestrained by decorum, protocol or even rational sense in their zeal to besmirch Obama's reputation.
This alarming rash of intemperate, racially driven expressions of incivility by prominent white leaders is dangerous because it gives license to others to regard open disrespect of the president as sanctioned and approved. Their actions not only endanger Obama but also endanger future presidents by diminishing the respect due to the office of the presidency, whoever sits in the Oval Office.
Cebull's conduct may be the most disturbing. Before becoming a federal district judge in 2001 and the chief judge in 2008, he was a federal magistrate judge for three years, presumably managing hundreds of cases over the course of his career. Although we spend most of our time focused on the power of Supreme Court justices and even justices on the federal courts of appeal, few recognize how much power federal district court judges (trial judges) and magistrate judges exercise.
Trial judges control nearly all aspects of litigation -- deciding key motions, making decisions about the admission of evidence, determining the credibility of witnesses, giving instructions to juries and deciding the outcome of cases. Most of these decisions are never appealed, giving trial judges vast, unreviewed authority over civil and criminal cases involving the lives, liberty and livelihood of thousands of people. Federal district judges are also appointed for life, and thus may exercise this authority over decades.
This context is important in understanding the potential danger when a judge of this high standing in his community demonstrates the kind of recklessness exhibited by Cebull. According to published reports, he first explained that he sent the email because he is, in his words, "not a fan of this president." He explained that he did not send the email because of its racist content; he sent the email because it is "anti-Obama."
This has now become standard parsing in the bizarro world of race populated by the slice of Obama's most feral and zealous opponents. The crudest racial remark or joke is transformed into acceptable political speech because it opposes President Obama.
Certainly one can be anti-Obama without being racist. But if your opposition to the president is cloaked in crude racial stereotypes, all of the inferences are against you. Cebull should know this.
As a federal judge and the chief judge of his district, Cebull is expected to comport with the highest ethical standards. He has, to his credit, filed a letter (pdf) asking the chief judge of the 9th Circuit Court of Appeals (of which the District of Montana is a part) to open an inquiry to determine whether his own actions constitute judicial misconduct.
Although the council may find that Cebull's behavior constitutes misconduct by fostering a "substantial and widespread lowering of public confidence in the courts," it will not impose a harsh sanction, given Cebull's "voluntary corrective action" in sending a letter of apology to the president and self-initiating the misconduct review.
But in determining whether Cebull should be subjected to a sanction, the Judicial Council of the 9th Circuit should also look to the ABA Model Code of Judicial Conduct (pdf), which sets the standards of ethical conduct for all federal and state judges. The code identifies several ways in which Cebull's conduct warrants stronger action:
*Rule 1.2 of the Model Code requires judges to behave "at all times in a manner that promotes public confidence in the independence, integrity and impartiality of the judiciary." Both Cebull's transmission of the email and his explanation for why he did so violate the standard set out in this rule.
*Rule 2.3 in the Model Code instructs that "a judge shall not in the performance of judicial duties, by words or conduct manifest bias or prejudice." The code specifically identifies "attempted humor based upon stereotypes" as an example of a "manifestation of bias." It is true that Cebull was not engaged in "judicial duties" when he sent this email, although the fact that he sent it from his federal account raises particular concerns.
*Rule 4.1 advises that "a judge ... shall not ... publicly endorse or oppose a candidate for any public office." Cebull's explanation that he is "anti-Obama" violates the rule.
The Judicial Council should also consider the fact that Cebull's conduct, which has raised questions about his impartiality, may provide grounds for his recusal from participation in a variety of cases. Cebull has said that he has "never considered himself" to be racist. But the federal statute governing the recusal of judges is focused on how a reasonable person would view the judge's conduct, not the judge's own view of himself.
Cebull's parsed logic -- arguing that although the email he sent is racist, he is not -- may be the kind of twisted logic that makes sense to a lawyer ("that depends on what the meaning of 'is' is"), but the average reasonable person is unlikely to find his argument convincing. If I were a black litigant or a woman of any race appearing before Cebull, I would have strong doubts about his fairness.
Cebull's conduct demonstrates an alarming lack of judgment and a disturbing failure to understand the power of his position. He has diminished the dignity of his office. He has also raised a credible inference of racial bias.
He deserves credit for promptly offering what appears to be a sincere and unadorned apology. But this personal apology is irrelevant to any questions legitimately raised by the larger public and, in the future, by those litigants who may appear before Cebull. They are entitled to be served by a chief judge who, in both fact and appearance, upholds the highest standards of impartiality and propriety.
Sherrilyn A. Ifill is a professor at the University of Maryland Francis King Carey School of Law in Baltimore and the author of On the Courthouse Lawn: Confronting the Legacy of Lynching in the 21st Century.