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How to Update the Judicial Misconduct Statute to Include Sexual Harassment

Fix the Court’s recommendations to fix the act are as follows:

– Right from the start (28 U.S.C. §351), “sexual harassment” should be added to the definition of what constitutes misconduct (currently, it’s not specifically mentioned), and Supreme Court justices should be included in the definition of who is a “judge” in this statute, much as they are in the recusal statute.

– Any determinations made by the chief judge and the judicial council (28 U.S.C. §352) should be made public (currently, they can remain private) 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 (28 U.S.C. §354), 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 (currently, the judicial council process is stacked against those bringing complaints). Namely complainants should have:

  • An opportunity to appear at proceedings conducted by the investigating panel in person or by counsel (28 U.S.C. §358);
  • 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 (28 U.S.C. §358); and
  • An opportunity to petition for reimbursement for costs incurred during this process (28 U.S.C. §361).

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