Following reports of sexual harassment involving a federal judge published by the Washington Post last December, several current law clerks and I believed that the federal judiciary’s policies were ineffective and needed significant change. As current clerks, however, we are somewhat constrained in our ability to engage in public advocacy; thus, we sought help from former law clerks. While all the members of our group are fortunate to have worked for judges who treat us with respect and value our contributions, many of us knew other clerks who were subjected to abusive chambers environments.
In December 2017, we wrote a letter offering modest suggestions to address workplace harassment in the federal courts, including: revising the Federal Judicial Center’s Law Clerk Handbook and Judicial Conference’s Codes of Conduct; improving the judiciary’s training regarding harassment, confidentiality, and avenues for reporting misconduct; developing a confidential national reporting system; and forming a working group of judges, law clerks, and judiciary employees to further develop ways to address these issues.
The Working Group has addressed the power dynamics in the judiciary that make reporting misconduct difficult
We also asked Chief Justice Roberts to address this issue in his year-end report. At the same time, we began communicating with the Chief Judge of the Ninth Circuit and other members of the judiciary about our suggestions. More than 695 individuals had signed the letter at the time we sent it; and as of today, more than 850 individuals have done so.
When the Chief Justice asked Director James C. Duff, the head of the Administrative Office of the U.S. Courts, to form a working group to examine these issues, we immediately contacted the members of the Working Group to ask for a seat at the decision-making table. The Working Group declined that request, but solicited our input and invited us to meet on three occasions to discuss our recommendations and the Working Group’s proposals. We also met with the Ninth Circuit’s working group twice and will be meeting with the D.C. Circuit’s working group later this month.
As can be seen in the Working Group’s Report to the Judicial Conference of the United States, the Working Group has dealt with issues of harassment in a meaningful way. The Working Group has addressed the power dynamics in the judiciary that make reporting misconduct difficult, the lack of transparency that undermines the public trust, the lack of clear policies and reporting avenues for employees, and abusive workplace behaviors beyond sexual harassment that are just as unacceptable.
The Working Group has also suggested that the Judicial Conference undertake the following changes:
- Changing the Code of Conduct for judicial employees, including precise language about when to report misconduct by others, and clarifying when confidentiality obligations do or do not apply;
- Broadening the definition of misconduct and allowing complainants to come forward who are not themselves the subject of alleged misconduct;
- Making the Model Employee Dispute Resolution (EDR) Plans more user-friendly by giving “plain English” explanations of the EDR processes and broadening the plans to cover more employees, including externs;
- Creating new training programs for all federal employees that address harassment and reporting; and,
- Establishing a national Office of Judicial Integrity to provide counseling and assistance regarding workplace conduct to all judiciary employees.
On Wednesday, June 13, the Senate Judiciary Committee will be holding a hearing about the Working Group’s recommendations and other ways to address harassment in the judiciary. One of our colleagues, Jaime Santos, will be speaking about next steps to address harassment in the judiciary, including a discussion about how to ensure that all circuits employ best practices in a uniform manner, how to convert the Working Group’s general suggestions into practical solutions, how law schools can improve reporting of harassment in the judiciary, and how current and recent law clerks still need a seat at the decision-making table to ensure lasting change.
Jaime Santos, Kendall Turner, Sara McDermott, Claire Madill, Priya Srinivasan, myself, and others continue to encourage any interested individuals to reach out to us with additional feedback concerning the judiciary’s policies.
You can watch Wednesday’s hearing live on C-SPAN at 10 a.m. EDT.