Government

Congress To Federal Judges: You Are Not Above The Law

Last week, Congress reintroduced legislation that will extend federal anti-discrimination protections to more than 30,000 federal judiciary employees, including law clerks and federal public defenders.

By  
on

justice-2060093_1920

Federal judges are some of the most unaccountable members of the government, since they are exempt from Title VII of the Civil Rights Act of 1964.

Judges, simply put, are above the anti-discrimination laws they interpret. And law clerks — the public servants who support the daily functioning of our courts — lack basic workplace protections.

Not for much longer, if Congress acts.

Thanks to sustained advocacy and public consciousness-raising, last week, with little fanfare, Congress reintroduced the Judiciary Accountability Act (JAA) (House/Senate), legislation that will extend federal anti-discrimination protections to more than 30,000 federal judiciary employees, including law clerks and federal public defenders.

Importantly, Article I federal courts — including the D.C. courts, where I clerked — are included, thereby ensuring those who clerk in courts created by Congress, for judges who are confirmed by the Senate for terms of 15 years or less, also enjoy basic workplace protections.

The federal judiciary, unlike the two other branches of government and most private workplaces, is uniquely exempt from not just Title VII, but also from the Americans with Disabilities Act, the Rehabilitation Act, and the Age Discrimination Act.

Sponsored

The JAA would correct this injustice by:

  1. Extending protection against discrimination based on gender, gender identity, race, disability, and age; as well as whistleblower protection against retaliation.
  2. Standardizing internal Employee Dispute Resolution (EDR) Plans in all federal circuits.
  3. Revising the judicial complaint process under the Judicial Conduct and Disability Act so judicial misconduct investigations  can continue even after judges step down.
  4. Creating confidential reporting channels for clerks.
  5. Requiring the federal judiciary to collect and report data — publicly and to Congress — annually on demographics in law clerk hiring, outcomes of judicial misconduct complaints, an annual workplace culture assessment, and an assessment of the EDR Plan’s effectiveness, since quantifying the scope of these problems is the first step toward crafting effective solutions.

What does it mean, in practice, to work in an environment that’s exempt from anti-discrimination laws?

If you are a disabled clerkship applicant, judges can legally refuse to hire you. As a clerk, they can refuse to provide you reasonable accommodations, or fire you rather than accommodate your disability.

Suppose you are a female clerk who, like me, presents as “bossy” or assertive. In that case, the judge can fire you — and you have no legal recourse for harm done to your career, reputation, or future earning potential.

Sponsored

If you get pregnant during your clerkship, or you have childcare responsibilities, it is up to the judge’s discretion whether to offer any parental leave. Too often, judges consider this a “disruption” to chambers and opt for the “easier” path — telling the clerk to leave.

And, of course, because the judiciary refuses to collect and report any data on the demographics of law clerk hiring, we know very little about the demographics of judges’ chambers or their hiring practices — except when judges announce who they’re boycotting that day.

As long as judges are immune from accountability, there will be no guardrails in place to protect against some of the worst human impulses, particularly in small, secluded, stressful, hierarchical work environments — such as screaming at and berating subordinates, throwing things, and even firing clerks in moments of frustration — because judges cannot be held legally accountable for abusive conduct. Title VII sets a bare minimum for workplace conduct standards — one the judiciary falls short of, even as judges preside over Title VII cases themselves. This exemption also reinforces the warped idea of a judge’s chambers as their little “fiefdom” — where each individual judge is hiring coordinator, human resources director, and DEI manager, even though they often lack the training and expertise for these roles.

Due to the dangerous combination of the lack of workplace protections, lack of outside oversight over judges’ dealings with clerks or training on management style, and decentralized nature of the judiciary, the Administrative Office of the U.S. Courts (AO) and Judicial Conference have gotten away with turning a blind eye to judicial misconduct for decades. And law clerks — the least powerful members of the judicial branch — are typically silenced due to fear of reputational harm or retaliation, and self-interest.

While the AO occasionally engages in signaling mechanisms following high-profile scandals — for example, making some window dressing changes to internal policies following notorious Ninth Circuit harasser Alex Kozinski’s 2017 resignation — they seem intent on riding out one scandal and waiting for the next, evidenced by the fact that they have used the same stock statement — claiming that they have “robust internal reporting mechanisms” in place — in response to news stories about multiple scandals this summer.

Sadly, as long as neither Congress nor the media holds the Third Branch accountable, by asking tough questions about or reporting on their repeated failures to ensure safe work environments for employees or hold judges accountable for misconduct, the judiciary will conduct business as usual, rather than engage in the hard work of implementing meaningful reform — especially if it would uncover actionable misconduct in their ranks and require disciplining their colleagues.

I — and later The Legal Accountability Project — have been sounding the alarm bells about the urgency of passing the JAA since the bill was first introduced in 2021.

When I started this work, few knew the federal judiciary was exempt from Title VII, let alone cared enough to ask about the legislation’s status. Now, broad public awareness and support extend far beyond the legal profession.

Why now?

This legislation has garnered renewed attention — and the federal judiciary, renewed scrutiny — this summer, in the wake of former Alaska federal judge Joshua Kindred’s resignation.

Kindred resigned in scandal in July after a rare 20-month Ninth Circuit Judicial Council investigation revealed appalling — but not surprising — abuse and sexual harassment in his judicial chambers. And, in another rare move by the Judicial Conference, the federal judiciary’s policy-making body, even after Kindred resigned, recommended the U.S. House of Representatives consider potential impeachment proceedings. If successful, impeachment would bar Kindred from holding public office again.

This may also be why the JAA garnered support from Alaska Republican Sen. Lisa Murkowski, who has been vocal about the need for reform since Kindred’s resignation. Of course, judicial accountability is not a partisan issue: both Democratic and Republican judicial appointees mistreat their clerks, and both liberal and conservative clerks are mistreated by the most powerful members of the profession, with no legal recourse. Yet this issue warrants a broader bipartisan legislative response.

Soon after Kindred’s resignation, back to back reports were released — from the Federal Judicial Center and National Academy of Public Administration, then by the U.S. Government Accountability Office — underscoring enormous deficiencies in the federal judiciary’s internal mechanism of “self-policing,” the Employee Dispute Resolution (EDR) Plan. These reports highlighted a lack of standardized processes, metrics for success, data collection, and transparency — as well as a lack of training for the EDR Coordinators and Directors of Workplace Relations tasked with enforcing the plan in courthouses nationwide. Mistreated clerks’ courthouse and circuit points of contact are not there to represent their interests or help them navigate the byzantine reporting and complaint processes. Rather, they serve as “HR for the judiciary.”

The federal judiciary’s insular insistence on strictly “self-policing” — eschewing any attempts by Congress at outside oversight — has led to an outrageous lack of accountability for judges who commit misconduct, including those who mistreat their clerks.

Sexual and gender-based harassment, discrimination, bullying, abusive conduct, and retaliation are pervasive and unaddressed in the federal courts. Yet the judiciary has historically been unwilling to collect and report any data — the first step toward crafting effective solutions, nor admit the scope of these problems — let alone enact the sweeping reforms necessary to fix them.

My nonprofit, The Legal Accountability Project, runs a nationwide Centralized Clerkships Database, compared to “Glassdoor for Judges,” containing over 1,300 candid reviews about more than 900 federal and state judges. I also spend extensive time counseling clerks on their options and speaking with law school clerkship advisors, federal judges, and occasionally others within the federal courts about how to foster transparency and accountability in judicial clerkships and the judiciary.

It’s clear these problems run much deeper than anyone would care to admit. Clerks who were bullied, harassed, or terminated (or quit rather than endure abuse), or retaliated against, overwhelmingly have not and would not report the mistreatment to the federal judiciary, either under the EDR Plan or the Judicial Conduct and Disability Act. Clerks believe their concerns will not be taken seriously. And perhaps even more importantly, they are not legally protected under Title VII against retaliation by judges — their powerful, life-tenured bosses who wield enormous power over their careers and reputations. When the stakes are high and the likelihood of success is low, they’re unlikely to stick their necks out by reporting misconduct.

A wholly internal mechanism of dispute resolution that relies on subordinates — fresh-out-of-law-school clerks, in their first legal jobs, totally dependent on judges for references and career advancement — reporting on their powerful superiors — life-tenured federal judges, the most powerful (and unaccountable) members of our profession — does not and will not work, unless clerks are legally protected against retaliation.

It is the height of injustice that law clerks — who support the daily functioning of our courts — lack basic workplace protections. There is no better time to pass the JAA — when these issues are particularly salient in the public consciousness — to finally ensure legal accountability for judges who mistreat clerks, as well as safe work environments for law clerks.

The JAA is a forceful step toward ensuring safe, supportive work environments for judiciary employees through legal accountability. As someone who not only could have benefited from these protections myself, but who now works to fix the systems that failed me when I was a clerk, I hope Congress will make passing this legislation a priority.

There is no substitute for congressional action. Correcting this injustice has never been more urgent, as another class of eager young attorneys are embarking on federal clerkships, and thousands more are about to begin the clerkship application process.

We should hold the federal judiciary to the highest ethical standards, not the lowest. And in the face of repeated evidence of egregious misconduct and repeated failures to enact change, we should demand not just answers, but action — from both the judiciary and lawmakers.

Judges should not be above the laws they interpret. And, if we can inspire some steely spines and congressional action, they won’t be any longer.

Aliza Shatzman is the President and Founder of The Legal Accountability Project, a nonprofit aimed at ensuring that law clerks have positive clerkship experiences, while extending support and resources to those who do not. She regularly writes and speaks about judicial accountability and clerkships. Reach out to her via email at [email protected] and follow her on Twitter @AlizaShatzman.

Topics

, , ,