Law clerks and other third branch staff should finally be protected by federal law

After a former law clerk detailed repeated harassment by yet another federal judge, Fix the Court is urging Congress to pass laws to make it clear that abusive behavior has consequences for members of the third branch.

Under federal law, judiciary employees remain apart from their cohorts in Congress and the executive branch by not being protected against harassment, discrimination and retaliation. What’s more, federal judges can simply retire to avoid misconduct investigations and punishment.

Both Olivia Warren, in her heart-wrenching testimony describing her clerkship with Judge Stephen Reinhardt, and Deeva Shah, a former district and circuit court clerk who co-founded Law Clerks for Workplace Accountability, told a House panel last week that the judicial misconduct statute and the judiciary’s response to numerous examples of harassment – from Kozinski to Murguia to Reinhardt – are severely lacking.

Even as some Committee members have expressed reluctance over amending the misconduct law, Thursday’s hearing should have eliminated that hesitation.

“Though the judiciary had adopted some post– Kozinski reforms, their efforts show a continued lack of appreciation for the scale of the problem and are undermined by an overconfidence in their own preexisting support structures,” FTC executive director Gabe Roth said. “Time and again we’ve heard from former clerks as to what’s needed: periodic climate surveys, a national misconduct reporting system, an internal ombudsman to oversee complaint intake and EDR reform implementation and new legislation to ensure that judiciary staff has the same protections as other federal employees. And clerks past and present should have a seat at the table as reform efforts proceed.”

Though the Judicial Conference asserted in 2019 that harassment counts as misconduct, and in 2012 stated (p. 26) that retaliation against whistleblowers is forbidden, FTC would favor applying the definition of harassment that exists elsewhere in federal law – as well as the Title VII definition of discrimination and the Whistleblower Protection Act definition of retaliation – to the Judicial Conduct and Disability Act, 28 U.S.C. §§351ff.

FTC also believes that the Act should be amended to allow misconduct proceedings to continue after a judge retires and that the Judicial Conference should have the authority to withhold the non-vested segment of a retired judges’ pension if he is found to have committed misconduct while on the bench. A 2019 FTC investigation revealed that at least 10 judges have retired in recent years in order to avoid misconduct proceedings, and at least six are still collecting pensions.

Last week’s hearing came on the heels of a bipartisan letter to the head of the Administrative Office, Jim Duff, and the chief judges of the District of Kansas and Tenth Circuit in which House members sought to learn more about the misconduct of Kansas Judge Carlos Murguia, who in 2018 was accused of harassing court employees. After a yearlong investigation, Murguia got off with a public reprimand last September and was back on the bench the following week, at which time FTC called on the House to begin impeachment proceedings against the judge.

Duff claims he was not able to attend Thursday’s hearing because the Judicial Conference’s investigation into Murguia is ongoing. Yet, like any congressional witness, Duff could have simply declined to answer any Murguia-specific questions had he been asked.

“It’s more than a bit disappointing that the judiciary would refuse to send a representative to a hearing on workplace conduct in the judiciary,” Roth added. “Is this the Ukraine investigation all over again, where instead of witnesses attending a hearing and asserting privilege in some areas, they just don’t show up altogether? This is a sad state of affairs.”