The Judiciary Accountability Act: Dismantling the Myth of the Untouchable Judge – N.Y.U. Journal of Legislation & Public Policy

By: Aliza Shatzman

April 25, 2022

Over a month has passed since I submitted a Statement for the Record for a House Judiciary Subcommittee hearing detailing my personal experience of harassment and retaliation by a former DC judge.¹ The judge for whom I clerked told me I was “aggressive” and “nasty” and “a disappointment” and that I made him “uncomfortable” because I did not conform to gender stereotypes about women in the workplace. On the day I passed the DC Bar Exam, he called me into his inner chambers and told me, “You’re bossy! And I know bossy because my wife is bossy!” I cried on the walk to work; cried in the courthouse bathroom; and cried myself to sleep.

I wanted to be reassigned to a different judge. However, the DC Courts did not have an Employee Dispute Resolution (EDR) plan in place that might have provided for a reassignment—it was adopted one year after my clerkship ended. I knew that if I complained, the judge could retaliate and fire me. Eventually, the judge ended my clerkship four months early because I “made him uncomfortable” and “lacked respect for” him. Human Resources for the DC Courts told me there was nothing they could do because “HR doesn’t regulate judges” and “judges and law clerks have a unique relationship.”

One year later, I was finally back on my feet, having secured my dream job as a federal prosecutor in the D.C. U.S. Attorney’s Office (USAO), when I received life-altering news. Just two weeks into training, the USAO alerted me that the judge had made negative statements about me during my background investigation. They told me that I “would not be able to obtain a security clearance” and that my job offer was being revoked.² An interview offer for a different position with the USAO was revoked a few days later, based on the same negative reference. I was only two years out of law school when I discovered that the judge had limitless opportunities to trash my reputation and destroy my career.

The Judiciary Accountability Act

Much has changed since the February 2020 House Judiciary Subcommittee hearing about protecting federal judiciary employees from sexual harassment, discrimination, and misconduct. I now stand on the shoulders of the brave law clerks who first spoke out. I am using my platform to advocate for the Judiciary Accountability Act (JAA), legislation that would protect federal law clerks in courthouses across the country who are being harassed by the most powerful members of the legal profession and suffering in silence.³

The JAA would extend basic workplace protections to more than 30,000 judiciary employees, including particularly vulnerable law clerks. Harassment in the judiciary is one of the most urgent and under-addressed issues facing the legal profession. Judicial clerkships place recent graduates in workplaces that are particularly conducive to harassment, given the enormous power disparity between judge and clerk and the physical isolation of judicial chambers.⁴ Fresh-out-of-law-school clerks, perhaps a Judicial Assistant, and a life-tenured judge working in close quarters for long hours in stressful circumstances, all behind closed doors. A judicial chambers is a workplace like any other, and it should not be uniquely exempt from workplace protections.

The JAA is the floor and not the ceiling for workplace protections and judicial accountability. The JAA creates a basic framework from which the legal community must build, and it underscores that further legislative reforms are necessary.

Extending Title VII to the Judiciary

The JAA would finally extend antidiscrimination protections to judiciary employees—including law clerks and federal public defenders—who are currently excluded from Title VII of the Civil Rights Act of 1964, enabling them to sue judges for discrimination and seek damages.⁵

The right to sue one’s harasser is crucial. Currently, the only remedy for law clerks who are harassed by federal judges is Employee Dispute Resolution (EDR), a highly flawed process lacking both impartiality and confidentiality, and for which financial remedies are not currently available.⁶ Every law clerk deserves a fair hearing on their claims, and for those claims to be heard by an unbiased arbiter. Furthermore, damages awards are vital for clerks who were terminated, harassed to the point of quitting, or ostracized from the legal community as a result of negative references by the judge. Judges should be forced to pay when they harm their former clerks’ future job prospects and earning potential.

Accountability for Judicial Misconduct

The JAA would hold federal judges accountable for workplace misconduct. It would expand the statutory definition of “judicial misconduct” to include discrimination and retaliation.⁷ It would clarify that if a judge retires, resigns, or dies, any ongoing misconduct investigation into them will not cease.⁸ It would create a Special Counsel for Equal Employment Opportunity, who would assist with judicial misconduct investigations and conduct workplace culture assessments.⁹ Furthermore, it would create both a confidential reporting system¹⁰ and a standardized EDR Plan for all federal courthouses to follow.¹¹

The JAA would also revise the formal judicial complaint process under the Judicial Conduct and Disability Act.¹² Currently, formal judicial complaints are reviewed by the Chief Judge of the circuit (the misbehaving judge’s boss) and, in rare instances, by a special committee of judges (the misbehaving judge’s colleagues).¹³ Under the revised policy, the special committee would also include judges from outside the misbehaving judge’s circuit, and therefore reduce the risk of bias against the complainant.¹⁴

Data Collection

The JAA would require the federal judiciary to collect and publish data on workplace culture,¹⁵ judicial complaints,¹⁶ and law clerk diversity.¹⁷ These are notoriously under-scrutinized areas, and the lack of data has obscured rampant judicial misconduct for far too long. The first workplace culture assessment would span the past ten years’ of law clerks, finally providing real insight into the scope of judicial misconduct that will enable advocates to craft more effective solutions.¹⁸

The JAA is Just the First Step.

As my story and others like it illustrate, the judiciary is a uniquely unaccountable workplace, one where judges evade scrutiny and avoid accountability for mistreating their clerks. While the JAA would make real strides toward addressing the insidious problem of harassment in the judiciary, several gaps in the JAA are worth addressing.

First, the JAA should be amended to include the DC Courts—which is where I clerked. The DC Courts are Article I Courts, or “legislative courts,” which are regulated by Congress. DC Courts judges are Senate-confirmed. Although they lack life tenure, Congress nonetheless confers them many protections. In sum, they are difficult to discipline and difficult to remove. The JAA currently covers only one other Article I Court—the U.S. Court of Federal Claims—and should be extended to all other Article I Courts as well.

Second, judges who “retire” rather than “resign” following misconduct allegations should no longer be permitted to continue to collect their lifetime pensions. Under the law, countless judges receive taxpayer dollars despite committing harassment, discrimination, and other workplace misconduct.¹⁹The JAA should eliminate this distinction, such that any judge who steps down following allegations of misconduct must forfeit their lifetime pension.

Third, both formal judicial complaints under the Judicial Conduct and Disability Act and EDR actions should be removed from the judiciary’s chain of command and handled by neutral arbiters, such as investigators with civil rights experience for formal judicial complaints, and courthouse-specific Equal Employment Opportunity officials, for EDR complaints. Since very few complaints proceed to special committee review under the Judicial Conduct and Disability Act,²⁰ the JAA’s proposed revision to the formal judicial complaint process would do very little to change this outdated policy.

Fourth, the JAA should include a venue-shifting provision for antidiscrimination suits by judiciary employees.²¹ Law clerks should not be forced to sue their harassers in the jurisdiction where the misbehaving judge works, and where one of the judge’s colleagues would preside over the case.

Finally, the JAA should require the creation of a searchable judicial misconduct database. Currently, the judiciary only publicly reports instances in which judges are formally reprimanded by dumping misconduct orders onto the U.S. Courts website, redacting judges’ names, and making the orders nearly impossible to search through.²² Pursuant to the JAA, judges’ names would still be redacted when judicial misconduct data is reported to Congress, making it nearly impossible for prospective law clerks to avoid judges with a history of misconduct.²³ The legal community needs a searchable judicial misconduct database, where law clerks and attorneys can read unredacted judicial misconduct orders. Law clerks, as well as the attorneys and litigants who interact with and appear before judges every day, have a right to know about judges’ misconduct.

The Judiciary’s Opposition to the JAA is Disingenuous.

Legislation like the JAA cannot reform the legal profession’s outdated attitudes about the judiciary. The legal community’s culture of silence and blind deference to the judiciary protects misbehaving judges’ legacies and reputations, while silencing law clerks from speaking up for themselves and pointing out injustices.

The judiciary’s weak protestations against the JAA’s interference with “internal governance” and introduction of “intrusive” oversight hardly mask the underlying sentiment—many judges believe they are above the law. Former Ninth Circuit judge Alex Kozinski embodied this sentiment at a 2015 event in Washington, DC when he turned to his protégé, then-judge Brett Kavanaugh, and stated that “being a judge means never having to say you’re sorry.”²⁴

Federal Judiciary Workplace Conduct Working Group Report

The Judicial Conference of the United States announced its opposition to the JAA within a month of its introduction. Then, just hours before the March 2022 House Judiciary Subcommittee hearing, the Federal Judiciary Workplace Conduct Working Group released a report to the Judicial Conference of the United States, proposing a few toothless “reforms” and reiterating the judiciary’s opposition to the JAA.

The Report’s proposals indicate that judiciary leadership is unwilling to engage with the reality that internal workplace policies provide insufficient redress in antidiscrimination cases. The Report’s proposed reforms include: conducting a nationwide climate survey;²⁵ directing the Office of Judicial Integrity to release an annual workplace conduct report;²⁶ revising the Model EDR Plan so the Presiding Officer in an EDR case would be a judge from outside the courthouse where the complainant law clerk and respondent judge work;²⁷ and “assess[ing] incorporation” of monetary remedies into the EDR Plan.²⁸

The climate survey and annual workplace conduct report would be welcome changes, since the judiciary has been notoriously unwilling to collect and report such data in the past. However, the Report does not specify how this data will be collected, leaving many questions unanswered. Anything less than full transparency could enable the judiciary to report incomplete and misleading data that obfuscates the scope of the problem. In addition, such data is only valuable if it is comprehensive—for comparison, the JAA would require the first such workplace culture assessment to survey the past ten years’ worth of judiciary employees.²⁹

The Report’s minor revision to EDR fails to comprehend EDR’s many flaws—that the process lacks impartiality and confidentiality, that its rules are unclear and unstandardized, and that complainants lack basic due process. Rather, EDR should be fully removed from the judiciary’s chain of command. Judges should not investigate their judiciary colleagues. This creates both the appearance of, and an actual, conflict of interest.

Additionally, the Report does not propose any changes to the outdated Judicial Conduct and Disability Act. It should. Judiciary leadership continues to insist that EDR and formal judicial complaints provide sufficient redress for mistreated law clerks, while failing to recognize the hurdles that make it so difficult for clerks to file complaints against their life-tenured supervisors.

Finally, the proposed study of monetary remedies for EDR does not mean that monetary remedies will be incorporated into the Model EDR Plan, since the intent of EDR is to offer internal workplace dispute resolution, rather than monetary compensation. Furthermore, any proposed monetary remedies would likely be significantly less than the damages available in antidiscrimination suits.³⁰

As it stands, the Report’s proposed “reforms” are not serious proposals. If the judiciary were truly interested in real workplace reforms, it would follow the wisdom of most other workplaces, including Congress, and agree that Title VII protections should be extended to judiciary employees.

House Judiciary Subcommittee Hearing Testimony

The Judicial Conference sent two representatives from the Working Group, Judge McKeown of the Ninth Circuit and Judge Robinson of the District of Kansas, to testify at the subcommittee hearing the day after the Report was released.³¹ These judges offered the same hollow and unpersuasive arguments from the Report, once again claiming that the judiciary is an “exemplary workplace.”³²

Troublingly, the judges argued that “inappropriate conduct is not pervasive” within the Third Branch, even though the judiciary has been unwilling to collect and report data that would enable interested parties to reach any conclusions about the prevalence of judicial misconduct.³³ The judges claimed that passage of the JAA would disrupt the judiciary’s “internal governance” and therefore “threaten the independence of judicial decision making [and] implicate judicial autonomy,” further asserting that “the Judiciary’s internal governance system is a necessary corollary to judicial independence.”³⁴ These statements together suggest that judicial independence requires freedom from accountability for harassing clerks. The judges’ arguments make no sense, yet they expect that readers and listeners will not dig deeply into their testimony. Workplace oversight is completely distinct from the interactions between judges and the litigants who appear before them. The JAA would exert oversight over judges in their capacity as employers, not as judicial decision-makers.

Judges McKeown and Robinson also noted their opposition the JAA’s data reporting requirements and centralized oversight, touting the judiciary’s “decentralized governance and culture.”³⁵ In fact, the centralized nature of reporting would protect judiciary employees, who hesitate to report misconduct to a direct supervisor, particularly in a small or remote courthouse, recognizing that the direct supervisor would likely be the one investigating and adjudicating their complaint.

Additionally, Judges McKeown and Robinson argued that the JAA would create a “deterrent to reporting” judicial misconduct, because law clerks would worry that their confidentiality would not be protected.³⁶ That is untrue. Judiciary employees do not report judicial misconduct in part because they fear their claims will not be taken seriously, and also because the legal community actively discourages reporting.

The judges concluded their written testimony by opposing revisions to the Judicial Conduct and Disability Act, advocating instead for “judicial self-regulation and independence.” However, similar to other notoriously insular organizations like the military and police unions, the judiciary has repeatedly proven itself incapable of internal self-policing. Judges McKeown’s and Robinson’s statements, both in written and oral testimony, suggest that they do not believe harassment in the judiciary is a problem. They are incorrect.

Conclusion

Congress should pass the Judiciary Accountability Act this year. The judiciary is a uniquely insular and unaccountable workplace, and vulnerable judiciary employees cannot wait another year for such urgently-needed workplace protections. Judges who enforce antidiscrimination laws should themselves be subject to them. Judiciary employees deserve the same access to justice as the litigants who appear before them every day. Failure to pass the JAA would be no more than an acceptance of the inherent injustice of the structure of the federal judiciary.

Moreover, the JAA is just the first step. Cultural change in the legal community is necessary. Attorneys—both those who look back on their clerkships fondly, and those who do not—should believe and support law clerks who blow the whistle on misconduct. Furthermore, those in positions of power should invite self-expression in the workplace. No one, regardless of their personality or their identity, deserves to be harassed at work.

Aliza Shatzman, J.D. Class of 2019, Washington University School of Law. Aliza is an attorney and advocate who writes and speaks on the subject of harassment in the judiciary.

Suggested Citation: Aliza Shatzman, The Judiciary Accountability Act: Dismantling the Myth of the Untouchable Judge, N.Y.U. J. Legis. & Pub. Pol’y Quorum (2022).

1
At the time the author filed a formal complaint against the judge with the D.C. Commission on Judicial Disabilities and Tenure in July 2021, she was unaware that the judge was already on administrative leave and under investigation, based on other allegations about his conduct. The judge has since been “involuntarily retired” from the DC judiciary, pursuant to D.C. Code § 11-1526(b), for reasons other than the way he treated the author during her clerkship and in the years following it.
2
Documentation of this exchange is on file with the author.
3
The JAA would amend various chapters of Title 28 of the United States Code (“Judiciary and Judicial Procedure”). Judicial Accountability Act, H.R. 4827, 117th Cong. (2021); Judicial Accountability Act, S. 2553, 117th Cong. (2021) [hereinafter “JAA”].
4
See Leah M. Litman & Deeva Shah, Essay, On Sexual Harassment in the Judiciary, 115 Nw. U. L. Rev. 599 (2020).
5
See JAA, supra note 3 at § 2 (amending 28 U.S.C § 964(b)(1)(A)). Compensatory damages would be administered and capped, as they are under Title VII, pursuant to Section 1977 of the Revised Statutes (42 U.S.C. 1981). Id. at § 2 (amending 28 U.S.C. § 964(b)(1)(B)).
6
See Workplace Protections for Federal Judiciary Employees: Flaws in the Current System and the Need for Statutory Change: Hearing Before the Subcomm. on Cts., Intell. Prop., and the Internet of the H. Comm. on the Judiciary, 117th Cong. (March 17, 2022) (Testimony of Caitlyn Clark), https://docs.house.gov/meetings/JU/JU03/20220317/114503/HHRG-117-JU03-Wstate-ClarkC-20220317.pdf (discussing bias in EDR); see also Workplace Protections for Federal Judiciary Employees: Flaws in the Current System and the Need for Statutory Change: Hearing Before the Subcomm. on Cts., Intell. Prop., and the Internet of the H. Comm. on the Judiciary, 117th Cong. (March 17, 2022) (Written Statement of Michelle Cohen Levy, EDR Counsel for Ms. Caitlyn Clark), https://docs.house.gov/meetings/JU/JU03/20220317/114503/HHRG-117-JU03-20220317-SD015.pdf (discussing lack of confidentiality and impartiality in EDR).
7
See JAA, supra note 3 at § 8 (amending 28 U.S.C. § 358). Under Section 8(a)(1), 28 U.S.C. § 358(a) will read as: “IN GENERAL.—Each judicial council and the Judicial Conference shall prescribe rules for the conduct of proceedings under this chapter, including the processing of petitions for review that—(1) ensure the independence, integrity, impartiality, and competence of proceedings under this chapter; (2) ensure the greatest possible public confidence in proceedings under this chapter and maintain public confidence in the Federal judiciary; (3) reflect that the judicial office is a position of public trust; and (4) effectuate sections 453 and the provisions of the Judiciary Accountability Act of 2021.” Section 8(a)(2)(C) will establish “workplace misconduct” as a violation of 28 U.S.C. § 358(b).
8
See JAA, supra note 3 at §§ 8(d) (amending 28 U.S.C. §§ 352–53).
9
Id. at §§ 6 (a)–(b), (e)–(f).
10
Id. at § 4(f)(2).
11
Id. at § 5(d)(1)(E).
12
Id. at § 8(e).
13
See 28 U.S.C. §§ 351–364. The Judicial Conduct and Disability Act has not undergone major revisions since it was passed in 1980. Real reforms to this legislation are necessary to address the persistent and pervasive problem of judicial misconduct.
14
See JAA, supra note 3 at § 8(f)(1). The special committee would also include some non-judicial members of the newly-created Commission on Judicial Integrity.
15
Id. at §6(f).
16
Id. at § 8(h) (amending 28 U.S.C. § 360) (“Disclosure of Information”).
17
Id. at § 4(f)(8); see also id. at§ 5(d)(1)(G).
18
Id. at § 6(f)(1)(H).
19
See Stephen B. Burbank, S. Jay Plager, and Gregory Ablavsky, Leaving the Bench, 1970–2009: The Choices Federal Judges Make, What Influences Those Choices, and Their Consequences, 161 U. Pa. L. Rev. 1–102 (2012), at 4–5. See also 28 U.S.C. §§ 371–77 (defining judicial retirement and resignation).
20
Only 4 of 1,282 complaints commenced between September 30, 2020, and September 30, 2021, were referred to Special Committee. Table S-22—Other Judicial Business, Administrative Office of the U.S. Courts (September 30, 2021), https://www.uscourts.gov/statistics/table/s-22/judicial-business/2021/09/30 (“Judicial Complaints—Complaints Commenced, Terminated, and Pending with Allegations and Actions Taken Under Authority of 28 U.S.C. 351-364 During the 12-Month Period Ending September 30”)[hereinafter “Judicial Complaints”].
21
Currently, only the whistleblower retaliation section of the JAA contains a venue-shifting provision. See JAA, supra note 3 at § 3(a) (amending 28 U.S.C. § 965(d)).
22
Even public reprimands are exceedingly rare—in fact, no federal judges were publicly reprimanded between September 2020 and September 2021. See Judicial Complaints, supra note 20.
23
See JAA, supra note 3 at § 8(h)(2).
24
Robin Pogrebin and Kate Kelly, The Education of Brett Kavanaugh (2019), at 83.
25
See Report of the Federal Judiciary Workplace Conduct Working Group to the Judicial Conference of the United States, at 21-22 (March 17, 2022), https://www.uscourts.gov/sites/default/files/report_of_the_workplace_conduct_working_group_-_march_2022_0.pdf.
26
Id. at 24.
27
Id. at 23.
28
Id. at 24.
29
See JAA, supra note 3 at § 6(f)(1)(H).
30
See 42 U.S.C. §§ 1981a(a)(l)-(3) (setting compensatory and punitive damages for intentional discrimination, subject to caps based on number of employees).
31
See Workplace Protections for Federal Judiciary Employees: Flaws in the Current System and the Need for Statutory Change: Hearing Before the Subcomm. on Cts., Intell. Prop., and the Internet of the H. Comm. on the Judiciary, 117th Cong. (March 17, 2022) (Combined Written Statement of the Honorable M. Margaret McKeown, United States Circuit Judge for the Ninth Circuit, and the Honorable Julie A. Robinson, United States District Judge for the District of Kansas), https://docs.house.gov/meetings/JU/JU03/20220317/114503/HHRG-117-JU03-Wstate-RobinsonJ-20220317.pdf [hereinafter “Working Group Statement”]. Judge McKeown made similarly hollow arguments in a 2021 Northwestern University Law Review article responding to Professors Leah Litman and Deeva Shah’s 2020 article. Hon. M. Margaret McKeown, The Judiciary Steps Up to the Workplace Challenge, 116 Nw. U. L. Rev. at 275-305 (2021); see also Litman & Shah, supra note 4.
32
See Working Group Statement, supra note 31, at 031. This written testimony also misleadingly claims that judiciary employees are protected by Title VII. Id. at 013.
33
Id. at 040. The judges may have relied on the Working Group’s 2018 Report for this proposition, but failure to mention that in the testimony suggests that the judges’ claims are unsubstantiated. Even if supported by the 2018 report, it shows that the judges’ opinions have not changed since 2018. Id. at 032. Much has changed since 2018, showing that annual data collection requirements are imperative.
34
Id. at 025.
35
Id. at 024.
36
Id. at 027-029.