A sad judicial family story

I just read last month’s Michigan Supreme Court decision in In re McCree (Mich. Mar. 26, 2014), which involved some pretty shocking judicial misconduct. I at first focused on it because the penalty quoted in the Westlaw Bulletin summary — six years’ suspension — seemed both odd for a judge, and too slight given the offenses, but it turns out that the court imposed both removal and a conditional suspension, because removal alone wasn’t enough. “We agree with the [Judicial Tenure Commission] that a removal, without more, would be an insufficient sanction in this case. If we were to remove respondent and he was reelected in 2014, that would amount to a less than one-year suspension (less than two years including his interim suspension), which we believe is clearly insufficient given the seriousness of his misconduct.”

In any event, here’s a brief summary of the facts, from the court opinion:

The evidence establishes that respondent [Wade H. McCree] (a) had a sexual relationship with a complaining witness in a case pending before him without recusing himself for several months, (b) engaged in numerous ex parte communications with her concerning the case, as well as concerning another case in which one of her relatives was a party, (c) violated various policies of the courthouse by permitting his mistress to enter the facility through an employee entrance without going through security, allowing her to remain alone in his chambers while he was on the bench, arranging for her to park her vehicle in an area reserved for judges, and sneaking her cell phone into the courthouse for her, (d) transmitted numerous text messages to her while he was on the bench that contained inappropriate and derogatory references to defendants, litigants, and witnesses appearing before him, (e) lied about when and why he finally did recuse himself from the case in which his mistress was the complaining witness, (f) sought to use the prosecuting attorney’s office as leverage against his then ex-mistress by concocting charges of stalking and extortion against her, and (g) lied under oath during the JTC proceedings.

On top of that, “Respondent was just recently publicly censured by this Court and yet continued to engage in misconduct, with his attitude toward the instant … investigation perhaps being best summarized by his remark that although ‘Wade should have recused himself,’ ‘no harm no foul.’”

The sad twist in the incident, which I noticed only because the judge’s name seemed familiar, is that the judge was the son of the extraordinarily illustrious Judge Wade H. McCree. Judge McCree graduated near the top of his class at Harvard in 1948, and became one of the earliest black judges in the country, serving on the Wayne County (Michigan) Circuit Court from 1954 to 1961, on the federal district court in Michigan from 1961 to 1966, and on the U.S. Court of Appeals for the Sixth Circuit from 1966 to 1977, at which point he was appointed U.S. Solicitor General, a post in which he served until 1981. It’s hard to be the son of a great man, it is said, but at least one can have some care for the family’s reputation.

Those who know some American judicial history may see this as an echo of another case, though in reverse — Justice Cardozo’s father had been a New York state trial judge, but had allegedly taken bribes and was forced out of office; some think that Justice Cardozo’s achievements were driven in part by his desire to compensate for that stain on the family name. Indeed, some have speculated that a stray example from one of Justice Cardozo’s tax cases, Welch v. Helvering (1933), “One man has a family name that is clouded by thefts committed by an ancestor,” was a conscious or subconscious allusion to his family history. Justice Cardozo spared his family any future McCree-like reversals by having no children.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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