This piece first appeared on NBC News.
The #MeToo movement has spurred a reckoning in Hollywood and on Capitol Hill, and now it’s time for the judiciary to step up and make sure our courts are a safe place to work.
On Thursday, attorney Olivia Warren delivered deeply personal testimony in the House about the sexual harassment she allegedly faced as a law clerk for 9th Circuit Court of Appeals Judge Stephen Reinhardt, who died in 2018. She lamented that she struggled to find a confidential way to communicate what happened to her and worried that reporting it could affect her future in the legal profession.
Testimony of attorney Olivia Warren before the House Judiciary Committee
“The consequences of miscalculating the risk of possibly offending a judge are fraught with a peril that does not dissipate with time and can hang over one’s entire professional career,” Warren said in her prepared remarks. “For a law clerk, at the precipice of his or her legal career, alienating a federal judge can spell doom for their life in the law.”
Warren’s story exposes a major accountability gap in the federal judiciary: The very branch of government charged with enforcing federal discrimination and harassment laws does not police its own. Congress should step into this accountability void and change current laws to explicitly include law clerks and other judicial branch employees in workplace protection statutes.
Not all judiciary employees are covered by standard workplace laws that protect the rest of us from discrimination and other kinds of malfeasance, such as the Civil Rights Act and the Americans with Disabilities Act. In fact, even the law that governs federal employees and their rights and responsibilities, the Civil Service Reform Act, does not protect many workers employed by the courts. These laws don’t cover federal employees in the the “excepted service” category of federal employment, a bucket that many judiciary employees, including law clerks, fall into, likely because they serve such short terms.
Federal court employees are also uniquely susceptible to retaliation because their boss is a judge: a powerful figure with job protection whose reference is often essential for success. Clerks are particularly vulnerable given that they are usually at the beginning of their careers as lawyers. They understandably may not want to risk losing a recommendation that could determine the trajectory of their entire legal career to report harassment.
Even those employees willing to speak up have to navigate avenues for reporting transgressions that are murky and risky for low-level employees. There is no independent body in the judiciary to which staff can report misconduct. The process for filing complaints is different at every courthouse, but they are generally filed to someone who ultimately reports to the judges. This means that complaints may be seen by the very judge who is its subject.
There is also a troubling lack of accountability for federal judges, who are virtually untouchable unless they face the extraordinary measure of impeachment. The horrendous allegations against former 9th Circuit Court of Appeals Judge Alex Kozinski in 2017, accusing him of engaging in a long-running pattern of harassment and misconduct against his subordinates, exemplifies the challenges in holding federal judges accountable.
Despite a dozen different accusers, Kozinski faced no formal punishment. (He has said he meant no harm and apologized for any discomfort he caused.) This lack of accountability reached an ironic low point recently when Kozinski argued a case before his former colleagues on the 9th Circuit in his new capacity as a private-sector attorney.
This fall, the 10th Circuit's Judicial Council, which is tasked with investigating judicial misconduct, released a report on allegations leveled against federal Judge Carlos Murguia in Kansas. The report said that Murguia engaged in "sexually harassing Judiciary employees," yet the judge faced zero consequences for his misconduct. The Judicial Council report said it was giving the strictest punishment it could offer, a “public reprimand.” Even so, Murguia continues to hear cases.
Those employees who are brave enough to speak up about misconduct are also not protected by the existing matrix of whistleblower laws, including the Whistleblower Protection Act, because these laws only cover executive branch employees.
The hearing held Thursday by a subcommittee of the House Judiciary Committee on protecting federal judiciary employees from workplace harassment was a good first step. But Congress must now enact legislation to close the gaps that leave judiciary employees so vulnerable. All judicial branch employees should be covered by standard anti-discrimination laws, and we must eliminate the option of retirement as a "get out of jail free card" for judges who have committed misconduct. Congress should also codify protections against retaliation for whistleblowers.
The federal judiciary must also do some self reflection on creating a culture that has discouraged employees from reporting misconduct and allowed judges to harass staff with impunity. The courts have thus far failed to adequately admit that problems exist or show a sincere willingness to reckon with the past.
It’s time for Congress and the American public to step in and demand these critical reforms. Otherwise, the courts will continue to fail in their core mission: to ensure the fair administration of justice for all, including for their own employees.
The Constitution Project seeks to safeguard our constitutional rights when the government exercises power in the name of national security and domestic policing, including ensuring our institutions serve as a check on that power.