The question

I reader from Canada brought to my attention a judicial spectacle going on in the land of ice and snow. It deals with Manitoba Queen’s Bench Justice Lori Douglas, the rough equivalent a federal trial judge here. I won’t go much into the details of this sad and salacious matter. It is enough to say that it involves nude photographs of the judge, before she was a judge, appearing on the internet under very depressing circumstances. Above the Law has chronicled the details in several posts including herehere and here. You can pursue the grimy specifics if you like by going to ATL.

Apparently, Justice Douglas did not disclose anything about the photographs when she submitted her application to become a judge. In turn, a committee of inquiry was impaneled pursuant to Canadian law to look into the judge’s omission and related matters. It began the investigation several years ago. The Justice has defended herself by suggesting that the sad story of how these photos became public was well-known among the bench and bar and therefore there was nothing to disclose. Over time, the investigation has become heated. The Justice sued the investigating committee. She alleged bias. Last week, all the members of the inquiry committee resigned.

So, why do I write about this nasty story? It got me thinking about how we vet federal judicial nominees in America. Specifically, I thought readers might be interested in knowing about the question.

Once the White House decides that it is likely to nominate you, word goes out to the FBI. The nominee must fill out a very detailed questionnaire. From that document, and who knows what else, FBI agents throughout the country, and internationally if necessary, compile a dossier that is given to the White House, and the Senate if the nomination goes forward.

The level of detail unearthed by the investigation would amaze you. From the time of your birth, until the present, every detail of your life is scrutinized including the criminal and employment history of your mother, father, brothers and sisters; your economic circumstances over time; your prior legal work and what other judges and lawyers think about you; every aspect of your medical and psychological history; detailed information about your spouse and kids including marital discord, employment history and criminal records; what your neighbors say about you; what your worst enemies say about you; what drinks you drink and how much and how often you drink them; how many speeding tickets you have received; how you treat pets; whether any deeds to property you owned contained racially or religiously restrictive covenants; have you ever uttered a racial, ethnic or sexist slur; what religious practices, if any, do you follow and where and when; what clubs or civics groups you have joined; are you hard worker or a slacker; what quirky habits do you have, and on and on and on.

Then, on very short notice, two FBI agents show up to interview you. One talks. One is silent. Both are grim. The silent one takes notes.

The first thing said (after a frightening and ostentatious display of credentials) is that a false statement is a federal crime. In my case, I seem to remember the agent literally reading the “false statement” statute to me. The agent stressed that the statute applies to statements that are “false” because of an affirmative misrepresentation and also because an answer omits material information.

And then the questioning begins. As I remember it, among the first questions was the question: “Are you aware of anything that might embarrass the President of the United States if your nomination goes forward?” Go ahead, and ask for clarification of that question. You won’t get one. The agent will tell you that he or she is not at liberty to sharpen the question. The agent will likely add that you may qualify your answer anyway you think appropriate so long as the answer is true.

In 1992, after serving more than five years as a United States Magistrate Judge, and having already undergone one FBI background check when I was appointed an MJ, I learned that Bush 41 would likely nominate me to become a district judge. Now, I had (and have) a lot of secrets that I did not want to tell anybody about and that included the President and the Senate. But, if a FBI agent asks the question, you confront the ultimate Hobson’s choice.

Let me tell you about a part of my response to the question. One of my daughters, who was then a teenager, had frequented a home that was under FBI surveillance. She dated a very nice Vietnamese boy who lived at that home. One of his older brothers was apparently heavily involved in a significant narcotics distribution ring. Earlier that year, I received a warning from a Justice Department official that my daughter and her friend were not suspects but that during the surveillance she was seen at the home. My kid would be well-advised, I was told, to avoid the home in the future.

I told the interviewing agent all about my daughter’s involvement with the boy and the warning I had received. That in turn prompted a grilling about how I came to know about the surveillance, the date and time of the warning, the name of the person who gave me the warning and much more.

Did the agents who were conducting my interview already know all about my daughter, the surveillance and the warning? While I suspect they did, to this day, I am not certain. Was I really obligated to “rat her out” to prove my bona fides? I have no idea, but I sure felt shitty for having done so. What difference did my revelation make? Apparently none, since the President proceeded with the nomination and the Senate decided to confirm me. But who really knows.

So what is the point? It is extraordinarily intrusive, but not unfair, to require judicial nominees to formally answer the question. If there is anything worth taking away from the depressing controversy involving Justice Douglas, that is the lesson.

RGK

13 responses

  1. Hm. With the possible exception of (presumably relatively unusual) circumstances like yours, where you already knew that law enforcement officials were aware of the incident with your daughter, the “anything embarrassing” question sounds like a classic law enforcement move to get someone talking until they say something they’ll regret, and which likely would never come out otherwise. I certainly wouldn’t advise someone to take that opportunity to mention nude pictures from decades in the past.

  2. Are you aware of anything that might embarrass the President of the United States if your nomination goes forward?

    “Since I have no idea what might embarrass the Office of the President, I know of nothing that might cause embarrassment.”

    “Can you clarify or expand on that answer?”

    “I have no way of sharpening an answer to a question that itself cannot be sharpened.”

    On the related matter, I don’t think you ratted out your daughter. She was visiting a house, however innocently, that was under surveillance for (some of) its occupants’ apparent involvement in the illegal drug trade. I can see the headline: Nominee’s Daughter Running With Drug Gang Lord’s Brother. It would have been an embarrassment. Better for your daughter for that to come out up front. Besides, that’s a thing that could come back and bite a Magistrate Judge–or his daughter–at any time.

    Were it my daughter–and I have one of those–I would have had a heart to heart with her on receipt of Justice’s warning, going over the pros and cons of continuing the relationship. I, like you I think, would not have moved to try to shut down the relationship.

    Eric Hines

  3. E,

    I did not feel obligated to reveal the nature of my heart-to-heart then and I don’t feel obligated to do so now. All the best.

    RGK

  4. Jay,

    We disagree.

    The “is there anything” question is indeed a standard technique used by criminal investigators, but so what? The purpose, after all, is to advise the President and the Senate of the nominee’s warts and to insure that the nominee is forthcoming.

    Because I don’t know enough about the facts or the law in Canada, I don’t want to address whether Justice Douglas was obligated to reveal the photos and related circumstances when she submitted her application. All I can say is that if she had gone through a vetting process like the one we use in America for federal judges, she probably would have been obligated to disclose the photos and if she didn’t she likely would have made a false statement.

    All the best.

    RGK

  5. Judge,

    I take your point, and agree that the standard of probity/disclosure for “prospective federal judge” should probably be different than for “suspect under criminal investigation and trying to avoid incriminating himself.”

    I guess the question still strikes me as something of a Rorschach test; the less easily embarrassed can grin and say “not that I know of,” while more anxious types will babble a bunch of nonsense, and look like they’re covering up more than they are (I’d be in the latter group). Sort of like polygraphs, or, for Catholics, the confessional.

  6. While it’s necessary to have a vetting process, part of the problem is that it’s gone completely crazy with unnecessarily putting people’s lives under a microscope. I frankly don’t see what having nude photos of oneself on the internet has to do with a judge’s ability to hear and decide cases. I’m not sure that the fact that I personally prefer chocolate milk to anything alcoholic says anything about whether I would be a good judge or a bad judge. And I suspect that a lot of people who would make very good judges either decide the hassle isn’t worth it, or the FBI finds something petty from twenty years ago that kills the nomination. Or, alternatively, one ends up with a bunch of eunuchs who’ve spent their entire lives in ivory towers and have no idea what life is like for most people (present company excluded, of course).

  7. Krychek_2,

    The process is daunting. Few people understand how daunting. And, I agree that we don’t want to appoint federal judges, and particularly federal trial judges, whose experience about people comes from spending time at the seminary.

    All the best.

    RGK

  8. I would go a step further than that and say that it might be a good thing to have an occasional judge who has been in trouble with the law, who has had financial problems, who has been the subject of a bar investigation, because such an individual is likely to be more skeptical of authority and more understanding of the underdog than someone whose interactions with “the system” have always been positive.

  9. So, it sounds like you were still able to keep some of your secrets (one’s that are probably more personal in nature rather than causing presidential embarrassment)? Was it hard to draw a line on other issues that maybe weren’t so obvious?

  10. Eli P.,

    I found it very hard to draw the line, but I did the best I could at the time. In a sense, the ability to draw a line is also a pretty good test of one’s judgment. Nonetheless, the process was unnerving.

    All the best.

    RGK

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