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FTC Responds to Updates from the Judiciary's Working Group on Sexual Harassment

Timeline: On Dec. 8, 2017, six women accuse Ninth Circuit Judge Alex Kozinski of sexual harassment. By Dec. 15, nine more women have come forward with harassment allegations against the judge

That same day, Fix the Court joins several law professors in asking Chief Justice Roberts to use his year-end report to address the problem of sexual misconduct in the judiciary. On Dec. 20, 695 current and former law clerks sign a letter asking the judiciary to take immediate steps to end workplace harassment and offer several suggestions on how to do so.

The next day, Roberts calls for the creation of a working group to review of the judiciary’s procedures for protecting court employees from harassment, and on Dec. 31, Roberts addresses sexual misconduct in his year-end report.

On Jan. 12, the working group forms, and it meets for the first time on Feb. 7. On Feb. 9, the chairman and the ranking member of the Senate Judiciary Committee, Chuck Grassley and Dianne Feinstein, write to Jim Duff, the chairman of the working group, to answer several questions about the group and its proposed solutions. Duff on Feb. 16 responds to the senators’ letter.

The working group meets for a second time on March 1, this time inviting current and former clerks to present their thoughts, and Fix the Court calls on the Judicial Conference of the U.S., meeting on March 13 in Washington, to address sexual harassment as part of its biannual meeting.

The following is FTC’s response to Duff’s Feb. 16 letter, and below that are suggestions on how to improve judiciary policy on harassment.

Page 3: Duff writes that “the Judicial Conference” will “act[] upon” some of the working group’s recommendations. He does indicate which part, as the Conference comprises more than two dozen committees, a few of which handle conduct. The next meeting of the Conference’s Executive Committee is scheduled for March 12, and an agenda for which has yet to be released to the public, though harassment is likely to be a topic of conversation. (According to the Federal Register, it does not seem as if the Conference’s Judicial Conduct and Disability Committee ever has formal meetings.)

Page 4 (top): One outgrowth of President Trump’s desire to “remake the judiciary” and the speed at which new federal judges are being nominated and confirmed is that it has given the AO and the FJC ample opportunity to implement new harassment-focused training programs. That already seems to be occurring, with the first new judge workshop specifically devoted to harassment being held “earlier this month,” as Duff reports.

Page 4 (bottom): Several times in the letter Duff refers to the “Employment Dispute Resolution” process that already exists within the federal judiciary. Our question is whether that process is one in which victims of harassment feel confident that their complaints are being seriously considered or if the formal complaint process that exists with the chief judge and judicial councils is preferable.

Pages 5-6: Duff notes several current programs for sexual harassment training within the judiciary. (If the courts were subject to FOIA, we’d ask for the curriculum, but they’re not, so no such luck for now.)

Page 7: Duff breaks the news that in 2016 there was one complaint filed by a law clerk alleging sexual harassment by a judge. In this case, the two were able to achieve “an equitable resolution of the matter during the EDR counseling process, which concluded the matter.” This almost raises more questions than it answers. Why did this case go to EDR and not through the formal complaint process outlined in the Judicial Conduct and Disability Act? Was the judge punished for his or her actions? Was the clerk reassigned?

Pages 9-12: This section details the harassment allegations against six judges – five of which were physical in nature; one of which comprised racist and sexist jokes – that have come to light in the last decade. To our knowledge, all six judges remain on the federal payroll.

Page 13: Duff responds to Grassley and Feinstein’s question about recommendations for improving the judicial misconduct statute by stating that the working group “does not have any […] at this time.”

This is a problem, and Fix the Court’s recommendations are as follows:

– In the first section of the statute, “sexual harassment” should be added to the definition of what constitutes misconduct, and Supreme Court justices should be included in the definition of who is a “judge” in this statute.

– Any determinations made by the chief judge and the judicial council should be made public unless a majority of the council votes against publication due to privacy or due process concerns.

– If a judge is punished for misconduct by censure, that should not potentially remain private, as the statute allows.

– There should be an automatic change of venue for judicial misconduct proceedings. Though this happens in practice nowadays (e.g., the Kozinski complaints were moved from the Ninth Circuit to the Second Circuit Judicial Council), it’s by custom and not statute, and that should change.

Complainants should be afforded the same rights and privileges as the judges accused of misconduct, namely they should have:

  • An opportunity to appear at proceedings conducted by the investigating panel (in person or by counsel);
  • An opportunity to present oral and documentary evidence, to compel the attendance of witnesses or the production of documents, to cross-examine witnesses, and to present argument orally or in writing; and
  • An opportunity to petition for reimbursement for costs incurred during this process.

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