Today, Judge Samuel Kent was sentenced to 33 months in Federal Prison for lying during an investigation of alleged sexual harassment charges. Throughout most of his 18 years on the bench, Judge Kent enjoyed a reputation for being a no nonsense judge who did not "suffer fools lightly." He was known by many as being a pro-prosecution judge. Ironically, the very laws that have been flouted by the Fifth Circuit are the very laws that would have prevented Judge Kent's downfall.
On numerous occasions, I had the opportunity to appear before Judge Kent representing clients. In fact, Judge Kent presided over two federal criminal trials in which I defended people. Throughout the many experiences I had with Judge Kent, he showed me no favors. His rulings were tough and consistent with Fifth Circuit precedent (tough on criminal defendants). He was quick to ridicule defendants who had been found guilty that minimized their guilt or failed to accept responsibility. He said things that tore at the heart of a defendant and delivered some of his rulings with little compassion. However, he always treated me, as an advocate, with respect. Unlike some judges, he did not assume I was incompetent or that I would not be a zealous advocate for my clients. He believed in the constitution and would conduct fair trials. And as it is with most federal judges, he did not comfortably accept mediocrity from advocates in his courtroom. He exacted a high standard for lawyers.
But that was in the Courtroom. The story of what happened in Chambers, as told by Ms. McBroom and Ms.Wilkerson, had a remarkably different plot. It was a saga of sex games, sex talk, sex, sex, and more sex. The two women spoke about being trapped in a burning building of sexual harassment with Judge Kent wielding a can of kerosene. The whole story left the Fifth Circuit and other federal judges (who are usually seen as being above the fray) embarrassed and in search of political solace.
Strikingly, the Fifth Circuit's reputation and approach to discrimination cases may have fostered this all. For years, the Fifth Circuit has treated discrimination cases (a category in which sexual harassment cases are found) as disfavored claims. For years, the Court was repeatedly reversed by the United States Supreme Court for making discrimination cases harder to bring and easier to be dismissed. For years, plaintiffs with discrimination cases which had to be filed in federal courts were shunned by lawyers. For years, the Fifth Circuit fostered a culture that allowed employment discrimination to flourish. The Court was so embolden in its position against discrimination cases that it did what no other Court of Appeals court in the Country did; it created and employed the "pretext plus" standard in discrimination cases before an objection to it was SUSTAINED! by the United States Supreme Court (reaffirming that a plaintiff only had to show that the employer's race neutral reasons were a pretext for discrimination to defeat a motion for summary judgment). Judge Kent served under their guidance. He saw dismissal after dismissal affirmed even where the conduct appeared egregious....all under the guidance of the Fifth Circuit. If the allegations were true; and I do not know if they were because I never saw anything that led me to form a conclusion one way or the other, then it would not be surprising that a Judge would devalue a woman's right to be free from sexual harassment when his superiors also did so.
This whole thing could have been avoided by a different culture by the Fifth Circuit Court of Appeals regarding sexual harassment claims. Had the Court taken sexual harassment claims seriously, then McBroom and Wilkerson would have felt empowered to file a claim as soon as the first alleged incident happened. Ever wonder why these ladies did not do so? Ever wonder why women who worked with Civil Rights lawsuits at the Courthouse did not exercise their rights and bring an EEO claim? Perhaps like everyone else who worked in the Courthouse, they knew the results of discrimination cases in Federal Court. As Judge Kent reamed defendants who failed to accept personal responsibility for their actions, Kent bears the responsibility for this case and his punishment. However, the responsibility for allowing and fostering a culture of disrespect for women in the workplace must be shouldered by a higher court.