Code of Silence: Sexual Misconduct by Federal Judges, the System that Protects Them, and the Women Who Blew the Whistle by Lise Olsen

Review by Walter Cummins

The lengthy subtitle to Lise Olsen’s exposé explains what the book is all about but doesn’t reveal the outcome of the long process that followed the initial whistle. Recent years have exposed the stories of many powerful men with long histories of sexual abuse whose actions were finally penalized. Men like Harvey Weinstein and Jeffrey Epstein had gotten away with dozens of sexual violations because of great wealth and a coterie of coverup lackies until victims were finally heard and the law imposed. But a federal judge enjoys an even greater shield than money and connections, the full protection of the U.S. constitution.

A federal judge can only be removed though impeachment and removal by Congress. Olsen explains that after nomination by a President, vetting by the FBI, and confirmation by the Senate, such a judge, like a Supreme Court justice, enjoys a lifetime appointment. Removal seems an impossibility. As a result, the women Olsen writes about encountered special barriers in taking on abusers who believed themselves untouchable in their power. The tests of those powers give this book a unique force.

The judge at the center of Olsen’s investigation was US District Judge Samuel Bristow Kent, who wielded almost total authority at the federal courthouse on Galveston Island, Texas. A long-time senior staff reporter at the Houston Chronicle newspaper, Olsen was there figuratively at the beginning, in the newsroom the very day a source at the courthouse passed on news of a woman running from Kent’s chambers, crying, her clothing is disarray. That was Cathy McBroom, Kent’s top assistant.  It happened in 2007. Olsen and a colleague, Harvey Rice, began literally knocking on doors to find people who might know more, including the home of a reluctant McBroom, an encounter that developed into a ten-year association though the painful stages of achieving a resolution for McBroom and eventually other women.

While Kent’s abuse was actually physical, usually the result of a drunken groping, Olsen chose to establish a context of other types of violation federal judges had been getting away with. Her book’s opening chapter shifts away from the prologue about Kent to the situation of Circuit Judge Alex Kozinski, a national celebrity whose opinions were often in the news and whose articles were published in major magazines. The chapter’s central incident is a dinner he had with a group that included Leah Litman, who taught at the University of California-Irvine School of Law and wrote about legal matters. Kozinski’s conversation was blatantly sexual. Litman avoided him but didn’t make a formal protest. It turned out that Kozinski had a history of sexual innuendo with his clerks, even displaying pornography to them. When women finally began complaining publicly, he chose to retire and collect a large pension rather than endure a misconduct probe.

A third judge Olsen writes about is G. Thomas Porteous, Jr., of Louisiana, whose abuses were financial rather than sexual, accepting undisclosed gifts from cronies that amounted to payoff and bribes, a man with a drinking and gambling problem who went bankrupt and committed perjury. He avoided criminal charges but eventually was impeached by the House and convicted by the Senate in 2010 even though he tried to resign to avoid the Senate trail.

The Kozinski and Porteous rebukes establish the possibility that a federal judge can be punished. But the focus of Olsen’s book is the developing case again Kent, especially the testimony of Donna Wilkerson, Kent’s secretary, who had suffered more severe and ongoing abuse than McBroom but kept Kent’s secrets to protect her job and income. The turning point in Kent’s downfall was Wilkerson’s willingness to go public. But both she and McBroom endured physical and psychological traumas while the case pended. Enemies at the start, they became friends and worked together once Kent was gone.

In 2009 Kent was sentenced to 33 months in federal prison and impeached by the House, but he resigned his position as a judge to avoid a Senate trial.

Olsen’s book provides a sense of relief when Kent was finally caught and punished. But with the addition of stories about two other federal judges, it raises disturbing questions about a life appointment system that gives such men authority to make decisions in cases that affect others and may impact society at large. Are there other delinquent judges still protected by the system?

In her final chapter, Olsen brings in new material concerning several Senate investigations and the handling of sexual harassment accusations against now Supreme Court justice Brett Kavanaugh, a one-time clerk for Kozinski who testified that he had never seen Kozinski engage in inappropriate behavior. The chapter also details the inability of Liv Warren, a former clerk of Judge Stephen Reinhardt, to get an official response to claims about his inappropriate conduct despite a statement signed by seventy-three former Reinhardt clerks, including one who became the dean of the Yale Law School.

In the Epilogue, Olsen tells of meeting McBroom for coffee. “Unfortunately, we both agreed, attitudes about sexual misconduct by members of the federal judiciary did not appear to have changed enough in the decades since she reported Kent’s misconduct, though these days many more women were beginning to speak out.”