Judge Kindred’s resignation leaves Alaska with just one active federal judge

After former U.S. District Court Judge Joshua Kindred resigned in disgrace last week, Alaska is down to just one active federal judge — risking delays for litigants and redoubling political pressure to fill a long-vacant seat.

Alaska is allotted three district court judges, but Kindred’s resignation means the court is now down to one – U.S. District Court Chief Judge Sharon Gleason.

Former Chief Judge Timothy Burgess retired at the end of 2021, taking a reduced caseload. His seat has been vacant ever since, and his seat is tied for the sixth-longest vacant judgeship in the federal system.

Kindred was confirmed in 2020, and, at just 42 years old, was expected to serve his lifetime appointment as a federal judge for decades to come. He resigned last week after a blistering disciplinary order by a Ninth Circuit judicial council described sexual harassment and inappropriate contact with law clerks.

His departure immediately put almost all of his docket of 77 open criminal cases — involving 102 defendants — and 148 civil cases to Gleason.

Candice Duncan, chief clerk at the District Court of Alaska, said through a prepared statement after Kindred’s resignation that one active district court judge working in Alaska “will lead to some delays due to the reassigned judge’s availability and/or due to the reassigned judge’s increased caseload.”

The District Court of Alaska has five “senior” judges who are in semi-retired status with a reduced caseload, and a handful of magistrate judges assisting Gleason, Duncan said Friday.

[‘Abusive, oppressive and inappropriate’: Alaska federal judge lied about sexual misconduct, inquiry finds]

It’s not yet clear exactly how having just one full-time judge will affect criminal defendants with cases in Alaska, said Jamie McGrady, the Alaska federal public defender.

It will likely mean a patchwork of cases being reassigned to visiting or senior judges who can come back to help the system continue to run until vacancies are filled, McGrady said.

U.S. Sens. Lisa Murkowski and Dan Sullivan, both Alaska Republicans, said in interviews Tuesday that they were shocked and disgusted by the allegations about Kindred, and said they were moving cautiously to fill both open seats.

Meanwhile, the public censure may not be yet over for Kindred. In a news release, the 9th Circuit’s judicial council said it may yet refer the 46-year-old’s case to the Judicial Conference, which could lead to an impeachment in Congress.

The whole situation is unusual, said Carl Tobias, a law professor at the University of Richmond in Virginia and an expert on the federal judiciary. He said the descriptions of what Kindred was found to have done — including a sexual relationship with a clerk that he lied about to investigators — violated “all the rules the federal judiciary has about interactions between judges and clerks and any staff.”

The council may want to make an example of his case, even if he has already resigned, Tobias said, as a warning that such behavior won’t be tolerated.

“It may be that people are satisfied that he’s resigned and out of the system,” Tobias said. “I have a sense that’s not going to be enough.”

Tobias said incidents of workplace harassment and abuse of law clerks have been higher profile in recent years, amid the Me Too movement. An impeachment would be rare — just 15 federal judges have been impeached in the history of the judiciary. But it could still happen because of the federal judiciary’s desire to crack down on potential abuse of the delicate judge and law clerk relationship, he said.

“I think it’s being condemned at the highest levels in the federal judiciary, partly because it’s an embarrassment, partly because of measures they’ve taken so far just have not proved to be sufficient,” Tobias said.

Kindred did not respond to an email request for comment.

Senators say they’re ‘shocked’ and ‘disgusted’ with Kindred

Federal judges are nominated by the president and confirmed by the full U.S. Senate for a lifetime appointment. But home-state senators play an influential role in the process. By convention, those senators forward names to the White House, which has the final call on advancing a nominee. Historically, either of a state’s two senators can block a nominee through what’s known as the “blue slip” process.

Murkowski said in a Tuesday interview that her process to vet nominees is “rigorous” before additional vetting is done by the White House and the FBI. Murkowski said she’d known Kindred personally when he worked as an attorney at the Alaska Oil and Gas Association. Her parents were close friends with Kindred’s ex-wife’s family, she said.

Murkowski said she vetted Kindred and saw nothing that would have foretold the kind of sexual misconduct allegations detailed in the Judicial Council’s 29-page order, released Monday.

Murkowski described herself as “shocked,” “disappointed” and “disgusted” by the revelations.

“I’m really mad, because I feel like he let me down,” she said, adding, “he let Alaskans down. He let the bench and the bar down.”

Sullivan, who also vetted Kindred before he was appointed to the judiciary, echoed Murkowski in a separate Tuesday interview. He described Kindred’s alleged behavior as “a disgusting, outrageous development.”

”Someone gets the honor of being a judge for life on the federal bench, and he abuses that power over women. It’s absolutely outrageous,” he said.

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.

”I guarantee you would not — we wouldn’t be having these issues right now, because I know him very well,” Sullivan said about Katchen.

In a federal bar magazine article from 2021, Kindred said he had never considered a judicial career before his name was floated for the opening created by the retirement of U.S. District Court Judge Ralph Beistline.

“I realized I was one of the youngest people in the applicant pool, and I made peace with it,” he said. “I felt that they had a lot of good candidates and that I definitely wouldn’t be the one chosen.”

Kindred was nominated and confirmed at a time when Trump was looking for “very young and conservative” people to join the federal bench, in hopes of shaping its decisions for decades to come, Tobias said. He was given a rating of “qualified” by the American Bar Association, Tobias said. The Alaska Bar Association ranked him 16th of 20 applicants.

“He probably wasn’t the strongest judicial nominee,” Tobias said. But neither was he particularly controversial. His confirmation hearing went smoothly.

For at least 20 years, Alaska’s U.S. senators have gotten recommendations for federal judicial nominees from the Alaska Bar Association. Murkowski said that she had forwarded the names of two potential nominees to the White House. She said it was her practice not to name a nominee until they were then chosen by the president.

On Tuesday, Sullivan said he also had forwarded two names of potential nominees to the White House who are different from those submitted by Murkowski. One name was submitted in January, another in June, a Sullivan staff member said. He, too, kept those names confidential.

Last year, Sullivan established the Alaska Federal Judicial Council to help him pick nominees to the federal bench, which sparked concerns from Murkowski about further delays in filling Burgess’ seat, open since 2021.

Sullivan said the council has a broader cross-section of members than just attorneys on the bar association, including high-profile Republican politicians such as former Gov. Sean Parnell, who was named chair, and former Lt. Gov. Loren Leman. Katchen is also a member of the council.

A federal judge is a lifetime appointment that requires thorough vetting, said Sullivan, a former Alaska attorney general. He said Kindred’s resignation showed why the bar association’s vetting could potentially be insufficient with a poll of attorneys, an interview and nominees submitting their resumes.

“I think this is an example of why we actually need a much better, thorough, detailed process of due diligence,” he said.

An extended vacancy

With the November presidential election just four months away, Alaska faces the vacancy of two-thirds of its federal judicial seats. Both Murkowski and Sullivan denied they have slow-rolled the nomination process to fill Burgess’ seat with hopes that former President Donald Trump gets reelected and control of the Senate flips to a Republican majority.

“My process has not been slow-rolled. My process has been deep diligence, which is what is needed for someone who’s going to get life tenure to the federal bench,” Sullivan said, adding that senior judges could help ease Gleason’s caseload as a temporary measure.

Murkowski said she has been “aggressive” in trying to fill Burgess’ seat, but after submitting her two names by last September, she said her part in that process was now complete.

“I think it’s important for litigants to know that their matters are going to be handled in an expeditious way, that our judges are not going to be overburdened because we have vacancies in the courts,” she said.

Despite the approaching election, the Biden administration has continued efforts to fill judicial vacancies. In May, Biden confirmed his 200th federal judge, ahead of Trump at the same time in his presidency.

Murkowski said that she had recently spoken to Sen. Dick Durbin, an Illinois Democrat and chair of the Senate Judiciary Committee, who assured her the committee would work to advance a nominee for the District Court of Alaska.

“I think given the second vacancy and the pressures that it’s going to place, I think there is new impetus to try to advance not only one name but two names,” she said on Tuesday.

Last year, the bar association’s board wrote to Murkowski and Sullivan with concerns about the then-18-month vacancy of Burgess’ seat. Executive Director Danielle Bailey said by email on Tuesday that the Alaska Bar Association was confident Gleason and the court’s clerk could provide case management and courtroom support after Kindred’s resignation.

“The Alaska Bar Association continues to have concern about the length of delay associated with our federal judicial vacancies in Alaska and the impact of the delay on the administration of justice more broadly,” Bailey continued to say. “We hope that the current vacancies do not remain needlessly vacant and that the nominations proceed as expediently as possible.”