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The first impeachment hearing for a federal judge in nearly 20 years took place in the House of Representatives last week. Call it Jim Sensenbrenner’s farewell gift to the federal judiciary. Term limits will force the irascible Wisconsin Republican to give up his chairmanship of the House Judiciary Committee in January, after a six-year tenure notable for Sensenbrenner’s efforts to enforce the constitutional dictum that Congress “ordains and establishes” the federal judiciary, not the other way around. This summer the panel’s Subcommittee on Courts, the Internet and Intellectual Property held a hearing on a Sensenbrenner bill that would create a judicial inspector general to investigate judicial misconduct and detect fraud and abuse. And on Sept. 21 that same subcommittee, headed by Texas Republican Lamar Smith, who is the front-runner to succeed Sensenbrenner as full committee chairman, brought Los Angeles federal Judge Manuel Real to town to explain why the committee should not prepare articles of impeachment against him for alleged misconduct. “It’s another Sensenbrenner dog-and-pony show to intimidate the federal judiciary and encourage passage of his inspector general bill,” says New York University legal ethics professor Stephen Gillers, who has been following the Real case. “Sensenbrenner’s on a crusade to bring the federal courts into line and make sure there’s more political control over judges.” Not so, responds committee spokesman Jeff Lungren, who says that Sensenbrenner is merely taking the panel’s oversight responsibility seriously. “It doesn’t have anything to do with the substance of their opinions, but rather appropriate behavior.” Among the handful of Democratic subcommittee members who attended the hearing, however, there was a real question as to why it was being held. That’s because a special committee of the 9th Circuit Judicial Council is already investigating allegations that Real improperly seized control of a bankruptcy proceeding involving a woman whose criminal probation he was overseeing. “None of us on the subcommittee relishes this undertaking,” said Smith as he opened the hearing. “I think we should have held off on this hearing to allow the special committee to do its job,” said the subcommittee’s ranking member, California Democrat Howard Berman. Last week’s hearing, he added when it ended, “wasn’t a wise thing to do.” Real, 82, is a Lyndon Johnson appointee who this November will have spent 40 years on the federal bench, where he has a reputation as a tough and autocratic judge. “There are a lot of people who dislike you,” said subcommittee member Chris Cannon (R-Utah) at one point during the hearing. “No,” responded Real, who spoke slowly but forcefully. “I don’t think there are many people; I think there are a few.” One of those, the man who first filed the original complaint more than two and a half years ago, is Stephen Yagman, a Venice, Calif., civil rights attorney whom Real fined $250,000 in 1984 for his conduct in a defamation case Real was handling. The sanction was reversed by the 9th Circuit, but, Real noted, Yagman has had a “personal vendetta against me for over 20 years.” “He insanely sanctioned me for a quarter of a million dollars, and nobody knows what it was for,” Yagman said in a telephone interview the day before the hearing. Indeed, Yagman has no connection to the underlying bankruptcy case. But under the 1980 Judicial Conduct and Disability Act, anyone, whether he is connected to the underlying case or not, can file a complaint against a federal judge. “The issue for me is not what he did now, but the fact that he has been tormenting lawyers and litigants for 40 years and no one did anything about it and everyone knows about it,” he added. During the morning hearing, Real, who spoke about the allegations publicly for the first time, vehemently defended his conduct. “I am here to tell you I categorically deny any misconduct on the bench,” said Real, who was seated next to his wife, Elizabeth, and lawyer and longtime friend, Donald Smaltz, the former independent counsel who a decade earlier headed the investigation into former Clinton Agriculture Secretary Mike Espy. “I have never been sanctioned for any type of judicial misconduct.” Yagman, on the other hand, he noted in his written testimony, has been “suspended from practicing law by the California State Bar on two different occasions, and again by the New York State Bar.” This summer, Yagman was indicted on 19 counts of tax evasion, bankruptcy fraud, and money laundering, charges he says were politically motivated. He is also alleged to have evaded a tax bill of $158,000. THE REAL WORLD If you were going to pick an alleged judicial-misconduct case to use as an example of the federal judiciary’s inability to investigate complaints against one of its own, the case against Manuel Real would be difficult to ignore. The misconduct allegation against Real is now in its fourth year and has followed a torturous path. The original complaint was filed by Yagman in February 2003, then dismissed by the chief judge of the 9th Circuit, Mary Schroeder, six months later. The 9th Circuit’s Judicial Council, which handles misconduct complaints, sent the case back to Schroeder, who dismissed it again, in November 2004. The Judicial Council upheld the dismissal in September 2005, by a 7-3 vote, but it included a blistering dissent from Alex Kozinski, a judge on the 9th Circuit and a Judicial Council member. Yagman then appealed his complaint to Washington, to the Judicial Conference Review Body, which reluctantly determined that it lacked jurisdiction to review the 9th Circuit case because Schroeder had failed to appoint a so-called special committee to investigate the allegations. Less than a month later, on May 23, 2006, Schroeder appointed a special committee to investigate the complaints against Real. That committee’s work is still in progress. The case itself is equally complicated. It began in 1999 with Deborah Canter’s guilty plea to loan fraud and making false statements under oath. Canter was placed under the probation supervision of Real. Canter and her husband, Gary, an owner of Canter’s Deli, a Los Angeles landmark since 1931, had separated two months before Deborah’s plea. Gary Canter moved out of the house, which was owned by a Canter family trust. Twenty-four minutes before the trust was to go to trial seeking to evict Deborah Canter from the house, she filed for bankruptcy, which automatically stayed the eviction case. A few months later, Real summarily took control of the bankruptcy case. “Without notice, without warning, without giving the Trust an opportunity to oppose, without so much as a motion,” Kozinski wrote in his dissent, “the district judge who is now the subject of this disciplinary complaint withdrew the case from the bankruptcy court.” Real subsequently enjoined a state court judgment evicting Deborah Canter, added Kozinski, “a raw exercise of judicial power, the net effect of which was to let Deborah Canter live in the Highland Avenue property rent-free.” When the trust asked Real why he wouldn’t lift the stay, he told the trust’s lawyer, “Just because I said it, Counsel.” Real told the committee he assumed control of the bankruptcy case — something he is entitled to do as a federal judge — because he believed that a confidential pre-sentencing report (a document that only a probation officer and the supervising judge are supposed to see) had been wrongly entered into the bankruptcy record. “I took over the bankruptcy case because I wanted to see if her [Canter's] pre-sentencing form had been misused,” said Real. “I did not make any ruling in her bankruptcy case . . . for the purposes of benefiting her personally.” BY THE BOOK By the time the hearing ended, some two hours later, it was not at all clear when there would be a second hearing, if ever. “The next step is up to Chairman Sensenbrenner,” said Smith, deftly. Sensenbrenner was instrumental in the last three impeachments of federal judges — Harry Claiborne, in 1986, and Walter Nixon and Alcee Hastings, in 1989 — all of whom were subsequently convicted and removed from office by the Senate. They represent nearly half of the seven federal judges who have ever been impeached and removed from office. And it was Sensenbrenner who introduced the resolution of impeachment against Real on July 17, singling out the failure of the 9th Circuit to discipline Real as his reason. Coincidentally or not, the hearing came just two days after a panel headed by Supreme Court Justice Stephen Breyer released a long-awaited report on judicial discipline, one that not only called for improvements in the process but singled out the handling of five highly publicized cases as “problematic.” Among those cases was Real’s alleged misconduct. That panel was set up in 2004, shortly after Sensenbrenner publicly questioned whether the judiciary should continue to discipline itself. Still, the Judiciary subcommittee’s two expert witnesses, Indiana University School of Law professor Charles Geyh and Pittsburgh School of Law’s Arthur Hellman, agreed that it would be tough for the allegations against Real, if proved true, to reach the bar needed for impeachment, much less conviction, by the Senate. “An isolated act of simple favoritism, absent a pattern, doesn’t rise to the level of an impeachable offense,” Geyh told the half-dozen subcommittee members in attendance. Added Hellman after the hearing, “I don’t understand why Real didn’t simply call up the bankruptcy judge and ask him whether he used the [pre-sentencing] report and how it got into the file.”
T.R. Goldman can be contacted at [email protected].

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