Four months after the federal judiciary was jolted into a #MeToo moment by allegations of sexual harassment against California US appeals court judge Alex Kozinski, officials are moving toward a new complaint channel for court employees.
Yet they may also be forgoing action to enhance the transparency of the overall system for grievances against judges.
The Kozinski ordeal helped expose a system in which courthouse employees virtually never make formal complaints, some for fear of retaliation. A separate CNN special report in January revealed that the process sets hurdles for potentially valid grievances and is so opaque that it defies public assessment of whether allegations are effectively resolved.
Chief Justice John Roberts has established a working group to explore how the judiciary handles harassment complaints. The group’s recommendations are expected to be made public in May.
As part of its work, officials are considering a new “less formalistic” reporting option, James Duff, director of the Administrative Office of the US Courts and a member of the eight-member working group, told a congressional committee last week.
“Many employees just want guidance, counseling and, we think, intervention earlier on in the process, so you don’t need to get to the formal complaint process,” Duff said.
“So we are going to create other outlets for employees at both the national level and throughout the (regional court) circuits,” Duff added, providing no other details on how the system would work.
The new channel could make it easier for some victims to come forward. But it could also reinforce the secrecy of the system and potentially hide wrongdoing. It is not known whether information related to the number of complaints in a new process would become public or whether it would include a mechanism for sanctioning abusive judges.
“We think it’s great that the judiciary is considering an additional, less formal, reporting option through which individuals concerned about the behavior they witness or experience can receive guidance about harassment and how to report harassment through formal channels,” said Jaime Santos, a former law clerk on the 9th Circuit where Kozinski served until his December retirement.
But Santos, now serving at a Washington law firm, added that former clerks seeking reform want to ensure that “the informal option does not become a well of secrecy from which no information ever emerges.”
She said the former clerks have suggested that whoever oversees the new complaint avenue compile data and identify patterns of employee questions and complaints about individual judges. Santos said officials in the working group she has met with seemed receptive to such ideas.
Under the current system, it is difficult for the public to know the level of harassment in the judiciary or whether certain individuals are repeat offenders. According to the judiciary’s own stated goals, the misconduct-reporting system is supposed to be transparent.
Yet, the various steps, from filing a complaint to interpreting judicial orders in cases, differ among the circuit websites and in general are not easily carried out. Law professors who encourage students to jump at a chance for a coveted judicial clerkship said they often feel in the dark about potential misbehavior among individual judges.
In February, judicial officials said they would begin tracking how many sexual harassment complaints were formally filed each year against judges.
During a US House appropriations hearing on the judiciary’s budget last week, Rep. Matt Cartwright, D-Pennsylvania, captured the courthouse atmosphere that can make it difficult for some employees to make complaints against judges. He suggested that workers may fear retribution or harm to their careers if they publicly complain.
“I think about the close-knit confines of judicial chambers,” Cartwright said, as he asked Duff about reforms to the disciplinary system. “You have a brand-spanking-new lawyer out of law school … (who) regards the federal judge that he or she works for as part of the pantheon of demigods.”
The former law clerk who first went public against the Pasadena-based Kozinski said she did not know where to turn with her claims, which included that he called her into his office to look at pornographic images on his computer and asked whether she was aroused. The woman wrote in a separate blog post in December that she worried about rules of confidentiality.
Since then, judicial leaders have tried to send the message that judges’ misbehavior, as opposed to work on cases, may be revealed.
The CNN special report found that very few complaints against judges are deeply investigated and rarely are judges disciplined. When judges do face internal scrutiny, they often retire, ending the investigation. Overall, however, it is extraordinarily rare for federal judges, appointed by the President for life, ever to resign under pressure.
Kozinski, who had been serving on the powerful appeals court since 1985, stepped down 10 days after the first allegations were published in The Washington Post, saying that he “may not have been mindful enough of the special challenges and pressures that women face in the workplace.” Kozinski has had no further public comment.
A judicial panel announced in February that it would not investigate the complaint from women cited in the Post and other publications because Kozinski had left the bench. The US Judicial Conference’s top disciplinary committee relayed that order dismissing the Kozinski complaint to Congress last week without any recommendation for action.
The system is not easy for the public to monitor. Orders related to the hundreds of claims filed annually are collected on court websites with little description of the allegations and no way for the public to distinguish those with merit and without, CNN found.
The files are mostly provided to the public as non-searchable, scanned documents, which means they cannot be easily searched for names, offenses or keywords. It is difficult to detect patterns among judges in various circuits.
Lodging a complaint can be as difficult as figuring out the final judicial orders, because complaint forms are buried on most circuit websites.
University of Pittsburgh law professor Arthur Hellman, who has long tracked judicial policy and the misconduct process, has suggested that circuit chief judges post some sort of message that would convey an interest in receiving complaints.
“You have to have someone who is seen as responsible,” Hellman said, “so that everybody knows that this is not an abstraction of the judiciary but some individual who is saying: ‘I want to hear about it. I will investigate.’”