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We Submitted a Comment to the Judiciary Ahead of its Hearing on Improving Misconduct Rules

** Read the comment here **

Fixing the judiciary’s misconduct rules requires working with Congress to amend outdated legislation, Fix the Court executive director Gabe Roth wrote to the Administrative Office of U.S. Courts today ahead of the AO’s hearing on proposed changes to its codes of conduct and JC&D regulations.

Roth began his comment by applauding the leadership of AO Director Jim Duff and Chief Justice John Roberts, who, in contrast to the leaders of our elected branches, have taken concrete actions to improve how their institution handles complaints of sexual misconduct.

Nevertheless, Roth added, improving the misconduct process in a lasting way would require amending the Judicial Conduct and Disability Act of 1980 to include several discrete fixes:

First, the Act should be amended to call out harassment by name by adding the EEOC definition of harassment to the first section.

Second, transparency should be the default in the Act, and neither a judge’s written response to a complaint nor any disciplinary action should remain private, as is possible under the current law.

Third, those who bring misconduct complaints against judges should be afforded the same resources and opportunities as those judges, namely the ability to present evidence, to compel the attendance of witnesses and to present argument.

Fourth, and though Chief Justice Roberts has himself done this administratively, the Act should automatically require a change of circuit for the adjudication of misconduct complaints.

Finally, and though this requires a larger discussion at a future date, that Supreme Court justices are exempt from the misconduct process is no longer acceptable.

Quoting Duff’s Dec. 20 memo, Roth concluded the comment: “The seriousness with which the judiciary has taken its directive to ‘examine the sufficiency of the safeguards […] to protect court employees, including law clerks, from wrongful conduct in the workplace’ has been laudable. I hope that the changes to the Codes of Conduct are implemented as soon as possible and that the AO and JCUS work with Congress to amend the Judicial Conduct and Disability Act in a way that reflects a more holistic view of what constitutes misconduct and how to remedy it.”

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