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Critiques of the Judiciary
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Critiques of the Judiciary
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Complaints of Sexual Harassment by Judges May Call
Attention to Other Forms of Judicial Abuse
Only a relatively small number of individuals ever become litigants, and even fewer experience the untoward abuse of the arbitrary powers granted to, and acquired by the judges they face. That is why reports of judicial misconduct have never fully captured the public's attention.
That is, until now.
The year 2017 ushered in an extraordinary wave of allegations of sexual abuse against men in high positions in all walks of life, who used their power and influence to harass, intimidate and sexually abuse women employees and colleagues with whom they were associated. And, because every adult understands the nature of such charges, the hue and cry over sexual abuse has captured the public's attention and become a force for social change.
Now gripping the public's interest is the sexual abuse committed by judges, exemplified by the small sampling presented on this website involving Judges Walter S. Smith Jr., Samuel B. Kent, Wade McCree Jr., David Bell, Robert F. Collins, and now Judge Alex Kozinski (see below).
Faced with the growing demands of courtroom personnel to address the issue of sexual abuse by male judges, Supreme Court Chief Justice John B. Roberts Jr., in his 2017 Year-End Report, offered only disingenuous assertions about the integrity of the men and women who comprise the judiciary, their intolerance of harassment, and their dedication to providing recourse for any victims. His message is typical of the hypocrisy that predicts no change from within that branch of government allowed to discipline itself.
Occurring below the public's radar — and in contrast to judges being charged with sexual conduct — are those judges, both male and female, who exercise their extraordinary powers to allow political, personal, or professional associations to influence their rulings to favor one party in a proceeding, notwithstanding the merits of the opposing party. A noteworthy example is the judicial abuse practiced by Judge Helen G. Berrigan and tenaciously defended by the higher courts.
The author is grateful to attorney and judicial-reform activist, Dr. Richard Cordero, for bringing the following article to his attention. Dr. Cordero's website is at: http://www.Judicial-Discipline-Reform.org.
Chief Justice John G. Roberts Jr. announced an initiative Sunday to ensure there are proper procedures in place to protect law clerks and other court employees from sexual harassment, saying it is clear that the federal judiciary "is not immune" from a widespread problem.
The statement, in Roberts's 2017 State of the Judiciary Report , follows the retirement last month of Judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit. The influential 67-year-old judge stepped down after two reports in The Washington Post detailed allegations he had subjected former law clerks and other women to inappropriate sexual behavior.
"Events in recent months have illuminated the depth of the problem of sexual harassment in the workplace, and events in the past few weeks have made clear that the judicial branch is not immune," Roberts wrote.
"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."
"I have great confidence in the men and women who comprise our judiciary. I am sure that the overwhelming number have no tolerance for harassment and share the view that victims must have clear and immediate recourse to effective remedies."
Just days after Kozinski's Dec. 18 retirement, Roberts directed James Duff, director of the Administrative Office of U.S. Courts, to put together a working group to examine the issue. CNN reported at the time that Duff will report back by May 1.
A group of nearly 700 former and current law clerks also sent Roberts a letter requesting action and asking that he highlight the concern in his annual report on the state of the federal judiciary.
"I have great confidence in the men and women who comprise our judiciary," Roberts wrote. "I am sure that the overwhelming number have no tolerance for harassment and share the view that victims must have clear and immediate recourse to effective remedies."
Of particular concern has been the relationships between judges and their law clerks — usually recent law school graduates whose careers are significantly boosted by a year working with a federal judge, particularly on one of the 12 courts of appeal.
An appeals court judge usually has four clerks and a secretary, and the chambers operate independently and under a strict code of confidentiality. Some of the clerks who eventually talked to The Post about their experiences with Kozinski had wondered whether that confidentiality meant they could not report their experiences.
There is a natural reluctance to complain about a judge instrumental to their futures, the clerks said, and it was even unclear as to whom such reports would be directed.
The letter from the clerks asked Roberts and other court officials to examine "the risk that these confidentiality principles can be used to shield, if not enable, harassment," according to a copy published by the HuffPost.
In his report, Roberts said he expected the working group "to consider whether changes are needed in our codes of conduct, our guidance to employees — including law clerks — on issues of confidentiality and reporting of instances of misconduct, our educational programs, and our rules for investigating and processing misconduct complaints."
One suggestion from the clerks was a national reporting system that would allow a court employee to report harassment incidents by a judge or other court official, or to report witnessing such an incident.
The Post reports on Kozinski swiftly ended the more than three-decade tenure of the Ronald Reagan nominee, whose clerks have regularly gone on to clerk for the Supreme Court. Kozinski's conservative-libertarian opinions, especially on issues of criminal procedure, were widely quoted.
The Post reported Dec. 8 that six women, former clerks or more-junior staffers known as externs, alleged that Kozinski had subjected them to a range of inappropriate sexual conduct or comments.
Heidi Bond, who clerked for Kozinski from 2006 to 2007, said Kozinski once called her into his chambers and showed her pornography on his computer, unrelated to any case they were working on. He asked whether she found it arousing.
In an initial statement to The Post, Kozinski said he would "never intentionally do anything to offend anyone, and it is regrettable that a handful have been offended by something I may have said or done."
Later, the California-based judge, who like all federal judges had a lifetime appointment, told the Los Angeles Times, "If this is all they are able to dredge up after 35 years, I am not too worried."
But other former clerks, law professors and even journalists wrote or spoke about their experiences with Kozinski, with some saying it was an "open secret" that female law clerks had to be careful about interactions with him.
The Post reported more allegations in a second story, and the chief judge for the 9th Circuit asked Roberts to assign to another court an investigation of the charges. Roberts did so, but days later Kozinski announced his retirement. That almost surely ends the investigation.
Roberts did not mention Kozinski by name in the year-end report, and the announcement about the review of procedures was a two-paragraph addendum to his main message. It was about how federal courts had remained open and handled business following hurricanes that devastated Puerto Rico, the Virgin Islands, Texas and Florida.
"Court emergency preparedness is not headline news, even on a slow news day," Roberts acknowledged. "But it is important to assure the public that the courts are doing their part to anticipate and prepare for emergency response to people in need."
Copyright 1996-2018, The Washington Post
From: Robert Barnes, "Chief Justice Roberts says courts will examine protections against sexual harassment," The Washington Post, December 31, 2017, https://www.washingtonpost.com/politics/chief-justice-roberts-says-courts-will-examine-protections-against-sexual-harassment/2017/12/31/94a55d00-ee40-11e7-97bf-bba379b809ab_story.html?utm_term=.f243ee4293a3, accessed 01/20/2018. Reprinted in accordance with the "fair use" provision of Title 17 U.S.C.§ 107 for a non-profit educational purpose.
Law Clerks Say Federal Judiciary Isn't Equipped To Handle Sexual Harassment — They Want “Significant Changes”DANA LIEBELSON, JENNIFER BENDERY, and RYAN J. REILLYDecember 20, 2017WASHINGTON — The federal judiciary is ill-equipped to handle allegations of sexual harassment, and "significant changes" are necessary to ensure those working for the third branch of the U.S. government are protected, a group of nearly 700 current and former federal judicial clerks and employees wrote in a letter to Supreme Court Chief Justice John Roberts and other key members of the judiciary on Wednesday.
The letter, obtained by HuffPost, was sent two days after Alex Kozinski, one of the nation's most high-profile federal appeals court judges, announced his retirement following accusations from multiple former female clerks of inappropriate sexual behavior. (He has since apologized.) Kozinski forced the federal judiciary into the national conversation about sexual harassment in the workplace, but his case also highlights why tackling this problem can be particularly difficult for those working for powerful judges.
Federal judges have life tenure, and just a handful throughout U.S. history have been removed through impeachment. There is a significant power imbalance between judges and clerks, and between clerks and other court staff. Clerks are typically young attorneys working in highly sought-after positions that could make or break their legal careers, and federal judges work with them in close quarters. It's a system that stresses confidentiality, and employees may feel there's nowhere to turn if they run into problems.
There's a risk that this secrecy can be used to shield or even enable harassment, the signatories of Wednesday's letter argue. Those who signed the letter — 695 people in all, including 480 former judicial clerks, 83 current clerks and 120 law professors, according to organizers — say the Federal Judicial Center's Law Clerk Handbook needs more specific guidance on these issues, and they are unaware of a central place for employees to turn when faced with harassment.
"In the past, clerks have been told to report any harassment to their judge or that any reports of harassment will be provided to their judge," the letter states. "This system is flawed for a number of reasons, including that the judge may be the perpetrator of the misconduct or the clerk may be new to the environment."
There is already a formal system to handle misconduct complaints against federal judges. A person can file a complaint, and a chief circuit judge decides whether to appoint a special committee of judges to investigate and, if warranted, issue sanctions. (A judge may also resign before that happens.) But while the misconduct complaint system covers workplace conduct, employees may not be adequately informed about it, or may not be sure if a complaint rises to a level that warrants reporting. Additionally, the system is only designed to handle complaints against judges, so it's not a venue for complaints against other court employees.
The federal judiciary "doesn't want Congress interfering in this process or taking it over, so they have a pretty strong self-interest in self-policing," said Arthur Hellman, a law professor at the University of Pittsburgh and an expert on federal judicial ethics. However, he noted there is still room for improvement. "It's essential that the Circuit Chief Judge make two things clear: first, that if a judge in the circuit is doing something wrong, the chief judge wants to know about it; and second, that anyone filing a good-faith complaint will be protected from retaliation," Hellman said.
The Federal Judicial Center made a change earlier this week to the Law Clerk Handbook, intended to clarify that confidentiality rules shouldn't prevent employees from revealing misconduct, including sexual or other forms of harassment, by any person. Clerks, the handbook now says, "are encouraged to bring such matters to the attention of an appropriate judge or other official."
That line helps, but the letter's signatories say more needs to be done, as the handbook still provides inadequate guidance on this topic. They also want a confidential national reporting system that employees can access to report harassment. Such a system would "provide a channel for action outside of contacting the press or simply hoping that the situation goes away," they said.
It's hard to know the extent of sexual harassment in federal courts. But federal judges themselves have been formally accused of sexual misconduct before. Samuel Kent, a former U.S. district judge for the Southern District of Texas, pleaded guilty in 2009 to lying to investigators who were looking into whether he sexually abused court employees. In 2009, Kent — who was reportedly known to boast "I am the government" — was sentenced to prison and later impeached.
In a deposition taken in March 2014, a former deputy clerk said that around 1998, Walter Smith, then a judge on the U.S. District Court for the Western District of Texas, asked her to come into his office, where he put his arms around her, kissed her and said, "Let me make love to you." She said she "just panicked... I was like, how am I going to get out of here without making him angry?" She said she was told Smith had a reputation for "pushing himself on whoever he wanted."
The woman said she reported the incident to her supervisor at the time. But Smith continued to pursue her, and she cleaned out her desk. Eventually, she said in the deposition, the judge in charge of dealing with sexual harassment complaints was notified, but he called to ask her: "What do you want me to do about it?"
Ty Clevenger, an attorney known for taking on public officials, lodged a complaint against Smith in 2014. A judicial council reprimanded Smith, saying he "does not understand the gravity of such inappropriate behavior." Clevenger appealed, saying the disciplinary measures were too lenient and he believed there were other incidents. Further investigation was conducted — the council concluded that Smith's actions did not warrant a recommendation for impeachment — but Smith retired in September 2016, ending the possibility of sanctions. (Clevenger said the woman declined to comment. Smith could not be reached for comment.)
One federal judge in California, who requested anonymity to speak freely, told HuffPost that among the complaints he has seen against judges on his court over the years, there haven't been a lot of sexual misconduct allegations.
But the power imbalance is so significant, from how judges present physically — in a robe, sitting above other people, in huge chambers — to the constitutional role itself, that the judiciary must be particularly vigilant about inappropriate behavior.
The federal judge said a far bigger problem than sexual harassment, in his experience, is complaints of bullying — "when you have the power, you're under pressure, you're tired, somebody makes a mistake and you just level them. I've seen that."
And in those cases, he said, the chief judge of the court has to tell the judge: "Look, you have way too much power to do something like this. You do this, you know perfectly well she or he can't fight back."
UPDATE: Dec. 21 — On Wednesday, Roberts called for a review of the federal judiciary's procedures for protecting court employees from misconduct. He made the call as the law clerks' letter was being circulated.
Copyright 2018, Oath, Inc.
From: Dana Liebelson, Jennifer Bendery, and Ryan J. Reilly, "Law Clerks Say Federal Judiciary Isn't Equipped To Handle Sexual Harassment — They Want “Significant Changes”," HuffPost, December 20, 2017, https://www.huffingtonpost.com/entry/federal-court-clerk-sexual-harassment-judges_us_5a3acf5ae4b025f99e1449f8, accessed 01/20/2018. The authors can be reached at: dana.liebelson@huffpost.com, ryan.reilly@huffpost.com, and jen.bendery@huffpost.com. Reprinted in accordance with the "fair use" provision of Title 17 U.S.C.§ 107 for a non-profit educational purpose.
Additional Reading
- Joan Biskupic, "Sexual misconduct by judges kept under wraps," CNN Investigation, January 26, 2018, http://www.cnn.com/2018/01/25/politics/courts-judges-sexual-harassment/index.html, accessed 01/30/2018.
Update
The complaint of judicial misconduct against Alex Kozinski, former Chief Judge of the Ninth Circuit, was referred to the Judicial Council of the Second Circuit by Chief Justice John Roberts Jr.1 The Council ruled that, because Kozinski had resigned his judgeship, he could no longer be investigated for past acts of misconduct.1 The Council's ruling is consistent with the Judiciary's policy of allowing judges to escape accountability for misconduct by retirement.
Reference
- Marcia Coyle, "Judiciary Closed Kozinski Misconduct Probe, Saying It Can't 'Do Anything More'," New York Law Journal, February 5, 2018, https://www.law.com/newyorklawjournal/sites/therecorder/2018/02/05/judiciary-closes-kozinski-misconduct-probe-saying-it-cant-do-anything-more/, accessed 02/07/2018.
Censure Judge Berrigan?
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