Written By Nicolette J. Zulli
“Does this kind of thing turn you on?” Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit allegedly asked his law clerk, Heidi Bond, while showing her a pornographic photo on his computer screen.
“No,” she responded, later explaining in a blog post that she remembers “feeling that [she] needed to not move, either physically or emotionally, that if [she] just treated this like this was normal it would stay normal and not get worse.”
Bond is one of several law clerks that have come forward – either anonymously or on-the-record – with allegations against Kozinski. In addition to Bond, law clerks and externs in the Second Circuit also came forward with allegations.
The Ninth Circuit commenced an investigation in early December of 2017, until the Chief Judge of the Ninth Circuit, Chief Judge Sidney Thomas, petitioned Supreme Court Chief Justice John Roberts to transfer the complaint and investigation to another Circuit to ensure confidence in impartiality. Chief Justice Roberts agreed, and the investigation and complaint were transferred on December 15, 2017, to the Second Circuit. Pending the inquiry into Kozinski’s conduct by the Second Circuit, Kozinski resigned from the bench on December 18, 2017.
A National Conversation
In the wake of Kozinski’s resignation, the federal judiciary has been thrust into the ongoing national conversation surrounding workplace sexual harassment and necessary reform measures. However, unlike the cases of powerful executives, such as Harvey Weinstein, or even Congressional leaders, like Senator Al Franken, a case of sexual harassment by a federal judge is a breed of particularly insidious abuse. This is, in part, due to the “open secret” nature of the law clerk-judge relationship, as well as the use of the doctrine of judicial confidentiality as a shield.
With this, the problem becomes the type of environment that is fostered in the judge’s chambers. If a harassing or abusive environment develops, it lends itself to potential claims of “judicial confidentiality” for personal misconduct in the course of a judge’s official duties. Unfortunately, there is no means of directly addressing this at the moment, as there are no individuals or institutions currently set up to specifically review whether the claimed-confidential information is actually “confidential” or not, as well as what the motive is for claiming that “confidentiality.”
Consequently, in devising an effective means of addressing these issues, preventative measures against abuse and sexual harassment in the federal judiciary should try to provide a way for complainants to safely pierce the veil of constitutionally-derived tenants of judicial confidentiality.
Revising the Handbook
The issue the Kozinski Scandal has presented in the court of public opinion is whether the federal judiciary is currently equipped to handle sexual harassment. A large group of current and former law clerks and law professors have answered with a resounding “No.”
Prior to Kozinski’s resignation, the language of the Law Clerk Handbook read as follows:
“Law clerks should be careful about publicly discussing their judge and chambers-related activities beyond case-related matters. For example, clerks should not publicly discuss their judge’s personal views about political, social, or other matters that could arise in litigation, nor should clerks reveal a judge’s travel plans. In general, clerks should respect and protect the privacy of their judge.”
This language did not make clear that confidentiality rules do not protect sexual harassment complaints against judges. Consequently, on December 18th, the same day as Kozinski’s resignation, the Federal Judicial Center revised the Law Clerk Handbook (Handbook) to address sex harassment complaints against judges. To achieve greater clarity, the revision qualified the above cited Handbook section with, “However, nothing in this handbook, or in the Code of Conduct, prevents a clerk, or any judiciary employee, from revealing misconduct, including sexual or other forms of harassment, by their judge or any person. Clerks are encouraged to bring such [harassment] matters to the attention of an appropriate judge or other official.”
Two days after the revision was added to the Handbook, 695 people – including 480 former judicial clerks, 83 current clerks, and 120 law professors – signed off on a letter to Chief Justice Roberts and other key members of the judiciary, calling for several changes to the federal judicial system that would better address possible sexual misconduct moving forward.
While there already exists a formal system to handle misconduct complaints against federal judges, it is a frail one. Employees are often not informed about reporting procedures and may not be sure if their complaints rise to a level that warrants reporting. Moreover, once a complaint is filed, a chief circuit judge must decide whether to appoint a special committee of judges to investigate, and if warranted, issue sanctions.
In addition to all of this, the Handbook neither specifies what constitutes “sexual harassment” or “misconduct,” nor details how to report it. The letter to Chief Justice Roberts states that “in the past, clerks have been told to report any harassment to their judge.” The problem, of course, is if the perpetrator happens to be the judge the clerk must report the harassment to.
To remedy these flaws, the letter to Chief Justice Roberts proposes six things: (1) [further] reforms to the Handbook to provide clarification and guidance on handling sexual harassment, (2) revisions to the Code of Conduct for Judicial Employees, (3) that issues regarding harassment, confidentiality, and avenues for reporting misconduct be addressed with all law clerks during law clerk orientation, (4) the development of a confidential national reporting system, (5) that the federal judiciary take steps to reassure individuals who are considering reporting accounts of sexual misconduct or harassment against a fear of retaliation, and (6) the establishment of a working group of judges, current and former law clerks, and judiciary employees to further develop ways to address these issues.
What’s at Stake with Policy Reform
In addressing sexual harassment policy changes, it is notable that, unlike the shorter duration of status enjoyed by C-Suite executives and senators, federal judges have life tenure under Article III of the Constitution. Moreover, less than 20 federal judges throughout U.S. history have been removed through impeachment. These facts and circumstances suggest that the position of power afforded a federal judge is somewhat more “unfettered” than not.
Moreover, while career clerks are more long-term and cover a wide range of ages and experience levels, term clerks are typically younger, more inexperienced attorneys. All clerks generally work in close-quarters with their judges. In addition, within the legal profession, clerkships are considered one of the more prestigious positions available to recent law school graduates, as they often open doors to higher-paying private sector jobs and higher-level public sector positions. Indeed, some federal judges (like Kozinski) are considered Supreme Court “feeder” judges, where they are known to facilitate opportunities for their former clerks to clerk with certain Supreme Court Justices. For all of these reasons, it is understandable why clerks’ concerns with sexual misconduct reporting and investigations in the federal judiciary call for swift action and redress.
There is also a significant power imbalance between judges and clerks, as well as other court staff, that further compounds the potential threat of abuse. This is not to say that other boss-employee relationships do not prescribe to the same fundamental power-imbalance. However, the nature of the federal judge-law clerk relationship is historically insulated through well-established internal safeguards.
Thus, the ironic reality presented by the Kozinski Scandal is this: All federal judges are charged with the ultimate constitutional duty to “interpret and say what the law is.” Some, unfortunately, abuse that very duty by imposing judicial confidentiality on their subordinates as a shield. This, in turn, allows some judges to commit emotional, physical, mental, and sexual abuse against their employees, with no standardized accountability.
Members of the legal profession should back the implementation of the proposed measures in the letter presented by the 695 law clerks and professors sent to Chief Justice Roberts and members of the judiciary on December 20, 2017. Further, two challenges must be addressed in order to effectively implement the proposed reform measures presented in the letter: judicial confidentiality and judicial independence.
On December 21, 2017, Chief Justice Roberts called for a review of the federal judiciary’s procedures for protecting court employees from misconduct. He made this request as the letter was being circulated. Then, on December 31, 2017, Chief Justice Roberts, in his annual year-end report, stated that “the judiciary will begin 2018 by undertaking a careful evaluation of whether its standards of conduct and its procedures for investigating and correcting inappropriate behavior are adequate to ensure an exemplary workplace for every judge and every court employee.”
In addition, Chief Justice Roberts said he asked the federal judiciary’s director of the administrative office to form a working group to examine the courts’ practices and recommend necessary changes to codes of conduct, employee guidance on reporting misconduct and its own rules for investigating complaints.
From a practical standpoint, revisions to the Law Clerk Handbook and Code of Conduct for Judicial Employees, and requiring education on misconduct procedures to law clerks during orientation, are changes that can be made without much difficulty.
In contrast, the proposal of a national reporting system – a reform measure that stands to have the greatest impact – will likely be the most difficult to establish. The idea itself is akin to that of a Human Resources department in a corporation, or a Title IX Office on a college campus, both of which serve as watchdog entities that regulate corporate and campus abuse and sexual misconduct. The letter did not propose details on where the misconduct reports would be submitted and who or what entity would review the misconduct reports in such national system.
Moving forward into 2018, and following the completion of the judiciary’s evaluation, it will be of interest to learn whether the Third Branch is able to adopt some version of this proposed national reporting system that sufficiently balances concerns of preserving judicial confidentiality and independence against ensuring adequate workplace protections of clerks and employees of federal judges.
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Photo Courtesy of Toledo Blade.