Bankruptcy as an Impeachable Offense

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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8 Responses

  1. I don’t think society will ever have to call into question a judge who files BK. Judges salaries/bennies/side deals enable them to live quite high on the hog, so to speak.

  2. A Non-E Mous says:

    The issue isn’t entirely hypothetical. While not one of The Supremes, a District Court judge in CDCa just filed for bankruptcy. And his filing seems to stem from “poor financial investments,” namely department store purchases.

    http://losangeles.cbslocal.com/2012/04/26/federal-judge-who-made-171k-last-year-files-for-bankruptcy/

    The conflict I think is relevant for this particular judge is filing in his own district, among his colleagues. As for your suggestion that a Justice in bankruptcy would have to recuse himself from any bankruptcy cases, I dont think it follows. I think it is similar to the erroneous assertions that any gay judge would have to recuse himaelf in DOMA cases or a black judge from EPC cases. You need a tighter nexus with the case holding and the Justice’s assets.

  3. Scott Pryor says:

    I suspect enough Representative are sufficiently close to the financial edge that they wouldn’t vote to impeach a federal judge who files bankruptcy. Doing so might come back to haunt them.

  4. Steven Lubet says:

    District Judge Thomas Porteous (EDLa) was impeached and convicted in 2010, in part on the basis of perjury in his personal bankruptcy.

    http://en.wikipedia.org/wiki/Thomas_Porteous

    Regarding recusal, a SCOTUS justice would be disqualified from hearing any individual bankruptcy cases during the pendency of his or her own bankruptcy proceeding. The situation is not the equivalent of a gay or minority judge, because a bankruptcy proceeding is not a personal status. See Aetna Life Ins. v. Lavoie, 475 US 813 (1986).

  5. Bob Lawless says:

    What is about a personal bankruptcy filing that means the person does not “exude authority and generate confidence?” Is it because the bankruptcy evidences some character flaw? Is it because the bankruptcy suggests a lack of ability or competence? Is is it something else, or a combination of these?

    I am not necessarily challenging the assertions people have made. Rather, I am interested in the analyses that are underlying them.

  6. Joe says:

    The answer would be no unless they have some other “high crime and misdeameanor” in relation to to bankruptcy. Tom Clark resigned to avoid conflict when his son became AG, but he wasn’t required to do so. There aren’t that many bankruptcy cases. Back then, bankruptcy was more serious with debtor prison & he was on the run — he was breaking the law. If he was on the run, I also don’t know how he would be able to do his job (once he went to court, he could be seized). That would be a problem too though a few experts suggest there is doubt that simply not showing up is a HCM.

  7. Moderate says:

    In some states (e.g., New York), one can fail the character and fitness test for reasons of personal finance.

  8. TS says:

    Scott Pryor said “I suspect enough Representative are sufficiently close to the financial edge that they wouldn’t vote to impeach a federal judge who files bankruptcy. Doing so might come back to haunt them.” Under the Senator Blount precedent at least, neither House Representatives nor Senators would appear to be “officers of the United States” within the meaning of the impeachment clauses and accordingly would not not impeachable. The Senate could repudiate the Blount precedent, though.