Kindred court debacle shows need to end secrecy on federal judge selections
I have little to add to the disastrous conclusion of the brief career of former federal judge Josh Kindred, except to point out that Sens. Lisa Murkowski and Dan Sullivan praised him as a great choice for the federal bench just four-and-a-half years ago.
They said they trusted the former attorney for the Alaska Oil and Gas Association and former regional attorney for the Department of Interior. They said they knew Kindred, then 41, to be a man of good character who was committed to justice. They had asked President Donald Trump to nominate him for the federal court.
“I commend this body, particularly Leader McConnell, for prioritizing putting good, solid, young federal judges in seats in districts and circuit courts all across the country—188 so far since the Trump administration took office, and now it is Alaska’s turn,” Sullivan said on February 12, 2020. The judgeship had been vacant for nearly four years.
Former federal judge Josh Kindred
“I have known Josh since he was a young assistant district attorney for the State of Alaska when I was attorney general,” Sullivan told the Senate.
Sullivan said he was impressed with Kindred from the start and continued “to be impressed with his fierce commitment to upholding the law, the concept of equal access to justice for all, and his keen awareness of Alaska’s unique legal landscape.”
Kindred prosecuted sexual assault crimes and did “pro bono work to stem this very significant crisis that my state has with these heinous crimes of sexual abuse,” the junior senator said.
“I believe he will serve with honor and integrity on the federal court,” Sullivan said.
Murkowski was also effusive. She said Kindred was raised in Alaska, came from a good family, married into a good family and was a good Alaskan. She said she was proud of his “commitment to public service and his willingness to serve our state.”
“I know that he will do well in his new role, as he has done in all his others,” Murkowski said.
What opposition there was to Kindred in the Senate was on environmental grounds. His comment during an AOGA conference in 2017 about the “passionate ignorance” of environmental advocates was cited by opponents. He also said he could be “accused of being apathetically ignorant.”
Asked about this during his confirmation, Kindred gave this written reply: “If I recall correctly, I believe those phrases were used as preface to a question to the panelists. The ultimate gist of the question focused on the difficulty to engage in meaningful discourse in pursuit of solutions to important issues related to both the oil and gas industry and the environment. In other words, people are often extremely passionate about these topics, but sometimes ill-informed as to the underlying facts. I used my sister as an example of someone who coupled passion with ignorance on environmental issues, and thus felt that describing myself as ‘apathetically ignorant’ in a self-deprecating manner was a fitting, although possibly failed, attempt at humor.”
The Senate approved him for the court job on a 54-41 vote.
Four years into his lifetime job, Kindred resigned under pressure after a comprehensive investigation of inappropriate behavior regarding women in his office. He made the case against him much stronger by lying.
Here is the press release and court order that ended Kindred’s time on the bench.
This blistering 29-page report on Kindred reveals the private communications of a man without the maturity or wisdom to hold any leadership position, let alone a key government appointment in which he was authorized to make crucial decisions that will impact life in Alaska for decades to come.
In more than 700 pages of text messages between Kindred and his law clerks, Kindred displayed abysmal judgment and preserved it for posterity. It was Kindred unfiltered.
“He discussed his past dating life, his romantic preferences, his sex life, the law clerks’ boyfriends and dating lives, his divorce, his interest in and communications with potential romantic or sexual partners, and his disparaging opinions of his colleagues,” a special committee wrote after its investigation.
The complaint was filed against him in late 2022, when Kindred had been a federal judge for all of two-and-a-half years.
In a 2021 profile of him in the Federal Lawyer, Kindred said he only applied for the judgeship after “people began reaching out and encouraging him to do so.”
Kindred scored low on a poll taken by the Alaska Bar Association in 2017, ranking 16th out of 20 candidates mentioned on the poll. Only 15 percent of respondents ranked him as qualified or extremely qualified, a low rating that could have been due to many Alaska attorneys not knowing anything about him.
He told the Federal Lawyer, he didn’t think he had a chance to get the job because he wasn’t well known. He applied on the last day, one of the youngest applicants.
In the first go-around, Jon Katchen, a former employee of Sullivan, was selected and nominated for the judgeship, but opposition to his appointment was so widespread that Katchen withdrew his name.
After Katchen was out, Kindred “was in D.C. for work when staff members from Sen. Dan Sullivan’s office contacted him to assess his interest.”
“I’d be honored if you called my name,’” Kindred said, according to the article.
A Kindred conversation with Sullivan in May 2019 about judicial philosophy led to an interview. “They asked questions about judicial philosophy and my thoughts on statutory interpretation,” he said.
According to the account by Darrell Gardner, past president of the Alaska Bar Association, Kindred expected a lot of questioning from reporters after Trump nominated him for the job.
“I braced for a media onslaught, but it never really came. I was fortunate enough that there were attorneys in Alaska who think highly of me and who vouched for me, for that large segment of the Bar who saw me as an unknown. I kept waiting for the moment when it became this naked political thing, but that never really happened. It was both surprising and reassuring that no one ever asked anything that was purely political,” he told Gardner.
The “media onslaught” that never happened tells more about the state of news coverage in Alaska than anything else. That and the secrecy of the senators.
There aren’t enough news reporters in Alaska to do detailed background reporting even on a nominee for one of the most important federal jobs in the state.
Kindred began work as a federal judge in March 2020 and had nearly 100 cases assigned to him in a couple of weeks.
He “feels a special kinship to the clerks and is compelled to be a similar mentor for the clerks in his chambers,” Gardner wrote three years ago.
But some of his clerks did not see him as a mentor, but as a menace, according to the court investigation that led to his resignation last week.
In trying to salvage his career, Kindred claimed that his “original sin” was treating his law clerks as friends.
Kindred was quoted in that profile three years ago as saying something about his time working for the state that seems apt now: “Sometimes, though, I think I could have benefited from a less-rapid ascension through the ranks.”
Now there are two vacant federal judicial positions in Alaska and only one full-time judge.
Last year he set up the Sullivan Alaska Federal Judicial Council to offer him advice on judge candidates. Sullivan named former Gov. Sean Parnell and former Lt. Gov. Loren Leman to lead his council. Katchen is also on the Sullivan judge council.
The nine members of Sullivan’s council were told by Sullivan’s office that they were prohibited from speaking about their activities. Sullivan’s office has refused to say anything of substance on this for nearly nine months.
Sullivan split with Murkowski over which nominees to forward to the White House last summer. Murkowski conducted interviews and proposed two names to the White House, but Sullivan wanted a more right-wing jurist who shares Sullivan’s point of view.
This week Sullivan told the Anchorage Daily News that he submitted two names to the White House for the Alaska court this year, but refused to identify them. The two candidates are not those proposed by Murkowski, who has also refused to identify her choices.
One of Sullivan’s names was sent to the White House last month, which makes me think Sullivan had advance knowledge of what was to happen with Kindred. The court order against Kindred was dated May 23, but not released until this week.
A year ago the Alaska Bar Association wrote about the long delay in filling the vacancy created when Judge Timothy Burgess retired. Murkowski asked the bar association to submit a list of qualified candidates and recommendations.
The top four candidates in the bar poll were Anchorage Superior Court Judge Yvonne Lamoureux, U.S. Attorney S. Lane Tucker, Stoel Rives partner Tina Grovier, and Alaska Solicitor General Tamara DeLucia.
“Alaskans have waited long enough for the district court to operate at full capacity, and I look forward to the vacancy being filled without further delay,” Murkowski said nearly 10 months ago.
The Senate, by tradition that should have been abandoned long ago by the executive branch, allows a single home-state senator to block federal judicial nominations by the president.
Sullivan is the holdup.
Sullivan denies that he is the holdup.
After Kindred’s forced resignation, Sullivan said he wanted to work with his personal judicial council “for appointment of federal judges who understand Alaska’s unique role in our federal system. This is crucially important for our state. Federal judges have lifetime tenure—their decisions will positively or negatively impact Alaskans for decades.”
Sullivan and Murkowski boosted Kindred into a lifetime job with little public review.
Their public statements this week overflowed with regret about Kindred. They said they were outraged, disgusted, etc. and claimed they had done their due diligence. They didn’t take responsibility for their actions.
Sullivan told ADN that none of this would have happened had Katchen, the former Sullivan employee who was his first choice, been confirmed by the Senate.
“In the interview, Sullivan emphasized that Kindred had not been his first choice for the seat. Sullivan had wanted Anchorage attorney Jonathan Katchen, then 43, to be appointed to the federal judiciary, but said he couldn’t get consensus on his pick,” ADN reporters Sean Maguire and Michelle Theriault Boots wrote.
“I guarantee you would not — we wouldn’t be having these issues right now, because I know him very well,” Sullivan said of Katchen, they wrote.
This is not even close to the response this case demands.
The senators should learn from this debacle and the part they played in it. Kindred became a federal judge largely because of the actions of Sullivan, Murkowski and Trump.
The senators can start by making the selection of federal judges a more transparent process—which would include the advance disclosure of the names of candidates for judicial positions, public hearings on the candidates and an end to the secrecy of the Dan Sullivan Alaska Federal Judicial Council.
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