Pennsylvania Supreme Court Justice J. Michael Eakin's latest attempt to quell concerns about his fitness for the bench has had the opposite effect. His proposal to resolve the controversy over his offensive emails is so wrongheaded as to raise further doubts about his judgment.
Eakin said in a statement last week that the Judicial Conduct Board should abort its second investigation of his emails and refer the matter to the Court of Judicial Discipline. The justice was trying to respond to misgivings about the conduct board's premature exoneration of him last year as well as its glaring conflicts of interest - namely, a chief counsel who worked for Eakin and a member who received similar emails.
Eakin's greatest error here is his effort to dictate the terms of his own investigation. We wouldn't seek a suspected car thief's opinion about whether he ought to be investigated by state troopers or township police. Likewise, the justice's considered analysis of his own disciplinary case is not only irrelevant but arrogant.
That Eakin would deign to weigh in on the question reflects the culture of coziness afflicting the Pennsylvania judiciary, including the disciplinary system that was meant to police it. Eakin obviously feels comfortable telling judicial authorities what to do, and that's a problem.
But even if its source could be put aside, Eakin's proposal is procedurally nonsensical. The state constitution designates the Judicial Conduct Board to investigate cases and, when appropriate, present charges to the Court of Judicial Discipline. The court's role is to consider the board's case and the judge's defense and then decide what if any sanctions to impose. The Court of Judicial Discipline therefore can't do the Judicial Conduct Board's job any more than a county judge can fill in for a prosecutor. Sending the case directly to the court would preclude the thorough investigation that is the first necessary step - which may well be why the justice suggested that course.
Eakin is right about one thing: After its bungled and compromised initial investigation, the Judicial Conduct Board must be relieved of this case. Hence the growing consensus for a special prosecutor to conduct a thorough, independent investigation of the pornographic and bigoted emails exchanged by Eakin and scores of other state officials. In a statement last week noting an "erosion of public confidence in our justice system," Philadelphia Bar Association Chancellor Albert S. Dandridge III joined former Chief Justice Ronald Castille and former U.S. Attorney Peter Vaira in calling for an independent probe.
While Attorney General Kathleen Kane discovered the emails at issue on her office's servers and has pressed the matter through selective releases, she is unfit to be anywhere near an investigation of Eakin or anyone else. Facing criminal charges and removal from office, she has even less credibility than the Supreme Court.
The high court's four other justices should appoint a prosecutor of unquestioned qualifications and independence to investigate Eakin and the broader scandal. His future on the court, or lack thereof, should be a question for that investigation - not for Eakin himself.