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Kindred’s resignation leaves Alaska with one active federal judge

After former U.S. District Court Judge Joshua Kindred resigned in disgrace last week, Alaska is left with just one active federal judge, threatening delays for litigants and heightened political pressure to fill the long-vacant position.

Alaska was assigned three district court judges, but Kindred’s resignation means the court now has just one person serving — Chief U.S. District Court Judge Sharon Gleason.

Former Chief Judge Timothy Burgess retired at the end of 2021, taking on a reduced caseload. His seat has been vacant ever since, and his seat is the sixth-longest vacancy for a judge in the federal system.

Kindred was confirmed in 2020 and, at just 42, was expected to serve his lifetime federal judgeship for decades to come. He resigned last week after a scathing disciplinary order from the Ninth Circuit Judicial Council detailed sexual harassment and inappropriate contact with judicial clerks.

His departure immediately resulted in nearly all of his criminal cases (77 open criminal cases – involving 102 defendants) and 148 civil cases going to Gleason.

Candice Duncan, chief clerk of the District Court of Alaska, said in a statement prepared after Kindred’s resignation that having one active district court judge working in Alaska “will result in some delays due to the availability of the reassigned judge and/or the increased caseload the reassigned judge will have.”

The District Court of Alaska is staffed by five “senior” judges who are semi-retired and have fewer cases to hear, as well as a handful of probationary judges who assist Gleason, Duncan said Friday.

(‘Abusive, oppressive and inappropriate’: Federal judge in Alaska lied about sexual misconduct, investigation finds)

It’s not yet clear what impact hiring just one full-time judge will have on criminal defendants in Alaska, said Jamie McGrady, a federal public defender in Alaska.

That will likely mean some cases will be assigned to visiting or senior judges, McGrady said, who can come back and help keep the system running until the vacancies are filled.

U.S. Senators Lisa Murkowski and Dan Sullivan, both Republicans from Alaska, said in interviews Tuesday that they were shocked and disgusted by the allegations involving Kindred and said they were moving carefully to fill both vacancies.

Meanwhile, the public criticism of Kindred may not be over yet. In a press release, the 9th Circuit Judicial Council said it could still refer the 46-year-old’s case to the Judicial Conference, which could lead to congressional impeachment.

The whole situation is extraordinary, said Carl Tobias, a law professor at the University of Richmond in Virginia and an expert on the federal judiciary. He said the descriptions of what Kindred allegedly did — including a sexual relationship with an official that he lied to investigators about — violated “every federal judiciary rule about interactions between judges and officials and staff.”

Tobias said the council may want to use his case, even though he has already resigned, as a warning that such behavior will not be tolerated.

“It may be that people are happy that he has resigned and is out of the system,” Tobias said. “I have a feeling that it won’t be enough.”

Tobias said incidents of workplace harassment and abuse of judicial clerks have become more visible in recent years amid the Me Too movement. Impeachment would be rare — only 15 federal judges have been impeached in the history of the judiciary. But it could still happen because of the federal judiciary’s desire to curb potential abuses of the delicate relationship between judge and judicial clerk, he said.

“I think this is being condemned at the highest levels of the federal judiciary, partly because it is embarrassing and partly because the measures taken so far have proven to be insufficient,” Tobias said.

Kindred did not respond to an emailed request for comment.

Senators say they are ‘shocked’ and ‘disgusted’ by Kindred

Federal judges are nominated by the president and confirmed by the full U.S. Senate for lifetime appointments. However, home-state senators play an influential role in the process. By convention, home-state senators submit names to the White House, which has the final say on whether to advance a candidate. Historically, any two state senators can block a nominee through a process known as a “blue slip.”

Murkowski said in an interview Tuesday that her vetting process for candidates is “rigorous” before the White House and FBI conduct additional background checks. Murkowski said she knew Kindred personally when he worked as a lawyer for the Alaska Oil and Gas Association. Her parents were close friends with Kindred’s ex-wife’s family, she said.

Murkowski said she reviewed Kindred’s case and found nothing that presaged the sexual harassment allegations outlined in the 29-page Judicial Council order released Monday.

Murkowski described herself as “shocked,” “disappointed” and “disgusted” by the revelations.

“I’m really mad because I feel like he let me down,” she said, adding, “he let Alaskans down. He let the bench down and the bar down.”

Sullivan, who also vetted Kindred before his appointment as a judge, echoed Murkowski in a separate interview Tuesday. He described Kindred’s alleged conduct as a “disgusting, outrageous development.”

“Someone is given the honor of being a lifetime judge on a federal court, and he abuses that power over women. It’s absolutely outrageous,” he said.

In the interview, Sullivan emphasized that Kindred was not his first choice for the position. Sullivan wanted Anchorage lawyer Jonathan Katchen, then 43, to be appointed to the federal judgeship, but he said he failed to gain consensus on his selection.

“I guarantee you we wouldn’t — we wouldn’t have these problems now because I know him so well,” Sullivan said of Katchen.

In a 2021 federal law journal article, Kindred said he never considered a judicial career until his name appeared on a list of vacancies created by the retirement of U.S. District Court Judge Ralph Beistline.

“I realized I was one of the youngest people in the pool, and I accepted that,” he said. “I figured they had a lot of good candidates and I definitely wasn’t going to get elected.”

Kindred was nominated and confirmed at a time when Trump was looking for “very young and conservative” people to join the federal bench, hoping to shape its decisions for decades to come, Tobias said. He received a “qualified” rating from the American Bar Association, Tobias said. The Alaska Bar Association ranked him 16th out of 20 candidates.

“He probably wasn’t the strongest candidate for judge,” Tobias said. But he wasn’t particularly controversial either. His confirmation hearing went smoothly.

For at least 20 years, U.S. senators from Alaska have received recommendations for federal judicial nominations from the Alaska Bar Association. Murkowski said she submitted the names of two potential candidates to the White House. She said her practice is not to name nominees until they are selected by the president.

On Tuesday, Sullivan said he had also sent the White House the names of two potential candidates who differed from those put forward by Murkowski. One name was submitted in January, the other in June, a Sullivan staffer said. He also kept those names confidential.

Last year, Sullivan appointed the Alaska Federal Judicial Council to help him select federal judicial candidates, prompting Murkowski to worry about further delays in filling Burgess’ seat, which will be vacant starting in 2021.

Sullivan said the council has a broader cross-section of members than just lawyers in the bar association, including prominent Republican politicians such as former Gov. Sean Parnell, who was appointed chairman, and former Lieutenant Governor Loren Leman. Katchen is also a member of the council.

A federal judgeship is a lifetime position that requires rigorous vetting, said Sullivan, the former Alaska attorney general. He said Kindred’s resignation showed why the bar association’s vetting can be potentially inadequate when it comes to surveying lawyers, interviewing them and applying for résumés.

“I think this shows why we really need a much better, more detailed and thorough due diligence process,” he said.

Extended vacancies

With the November presidential election just four months away, Alaska faces vacancies on two-thirds of federal court seats. Both Murkowski and Sullivan have denied that they slowed down the nomination process to fill Burgess’ seat, hoping that former President Donald Trump would be reelected and control of the Senate would shift to a Republican majority.

“My trial was not slowed down. My trial was thoroughly diligent, which is necessary for someone who is going to get lifetime tenure on the federal bench,” Sullivan said, adding that older judges could help ease Gleason’s caseload as a temporary measure.

Murkowski said she had been “aggressive” in trying to fill Burgess’ seat, but after submitting two names by September last year, she said her role in the process was now over.

“I think it is important for litigants to know that their cases will be heard expeditiously and that our judges will not be overloaded with work due to vacancies in the courts,” she said.

Despite the upcoming election, the Biden administration has continued its efforts to fill judicial vacancies. In May, Biden confirmed his 200th federal judge, surpassing Trump at the same time in his presidency.

Murkowski said she recently spoke with Sen. Dick Durbin, an Illinois Democrat and chairman of the Senate Judiciary Committee, who assured her the committee would work to nominate a candidate for a judgeship on the U.S. District Court of Alaska.

“I think given the second vacancy and the pressure that brings, there is a new impetus to try to promote not just one but two names,” she said on Tuesday.

The bar association board wrote to Murkowski and Sullivan last year with concerns about Burgess’ 18-month vacancy. Executive Director Danielle Bailey wrote in an email Tuesday that the Alaska Bar Association is confident Gleason and the clerk of the court will be able to provide case management and courtroom support after Kindred resigns.

“The Alaska Bar Association continues to have concerns about the length of the delay related to our federal judicial vacancies in Alaska and the impact of the delay on the judiciary more broadly,” Bailey continued. “We hope that the current vacancies will not remain unfilled unnecessarily and that appointments will proceed as expeditiously as possible.”

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