WASHINGTON ― The federal judiciary is ill-equipped to handle allegations of sexual harassment and “significant changes” are necessary to ensure those working for the third branch of the U.S. government are protected, a group of nearly 700 current and former federal judicial clerks and employees wrote in a letter to Supreme Court Chief Justice John Roberts and other key members of the judiciary on Wednesday.
The letter, obtained by HuffPost, was sent two days after Alex Kozinski, one of the nation’s most high-profile federal appeals court judges, announced his retirement following accusations from multiple former female clerks of inappropriate sexual behavior. (He has since apologized.) Kozinski forced the federal judiciary into the national conversation about sexual harassment in the workplace, but his case also highlights why tackling this problem can be particularly difficult for those working for powerful judges.
Federal judges have life tenure, and just a handful throughout U.S. history have been removed through impeachment. There is a significant power imbalance between judges and clerks, and between clerks and other court staff. Clerks are typically young attorneys working in highly sought-after positions that could make or break their legal careers, and federal judges work with them in close quarters. It’s a system that stresses confidentiality, and employees may feel there’s nowhere to turn if they run into problems.
There’s a risk that this secrecy can be used to shield or even enable harassment, the signatories of Wednesday’s letter argue. Those who signed the letter ― 695 people in all, including 480 former judicial clerks, 83 current clerks and 120 law professors, according to organizers ― say the Federal Judicial Center’s Law Clerk Handbook needs more specific guidance on these issues, and they are unaware of a central place for employees to turn when faced with harassment.
“In the past, clerks have been told to report any harassment to their judge or that any reports of harassment will be provided to their judge,” the letter states. “This system is flawed for a number of reasons, including that the judge may be the perpetrator of the misconduct or the clerk may be new to the environment.”
There is already a formal system to handle misconduct complaints against federal judges. A person can file a complaint, and a chief circuit judge decides whether to appoint a special committee of judges to investigate and, if warranted, issue sanctions. (A judge may also resign before that happens.) But while the misconduct complaint system covers workplace conduct, employees may not be adequately informed about it, or may not be sure if a complaint rises to a level that warrants reporting. Additionally, the system is only designed to handle complaints against judges, so it’s not a venue for complaints against other court employees.
The federal judiciary “doesn’t want Congress interfering in this process or taking it over, so they have a pretty strong self-interest in self-policing,” said Arthur Hellman, a law professor at the University of Pittsburgh and an expert on federal judicial ethics. However, he noted there is still room for improvement. “It’s essential that the Circuit Chief Judge make two things clear: first, that if a judge in the circuit is doing something wrong, the chief judge wants to know about it; and second, that anyone filing a good-faith complaint will be protected from retaliation,” Hellman said.
The Federal Judicial Center made a change earlier this week to the Law Clerk Handbook, intended to clarify that confidentiality rules shouldn’t prevent employees from revealing misconduct, including sexual or other forms of harassment, by any person. Clerks, the handbook now says, “are encouraged to bring such matters to the attention of an appropriate judge or other official.”
That line helps, but the letter’s signatories say more needs to be done, as the handbook still provides inadequate guidance on this topic. They also want a confidential national reporting system that employees can access to report harassment. Such a system would “provide a channel for action outside of contacting the press or simply hoping that the situation goes away,” they said.
It’s hard to know the extent of sexual harassment in federal courts. But federal judges themselves have been formally accused of sexual misconduct before. Samuel Kent, a former U.S. district judge for the Southern District of Texas, pleaded guilty in 2009 to lying to investigators who were looking into whether he sexually abused court employees. In 2009, Kent ― who was reportedly known to boast “I am the government” ― was sentenced to prison and later impeached.
In a deposition taken in March 2014, a former deputy clerk said that around 1998, Walter Smith, then a judge on the U.S. District Court for the Western District of Texas, asked her to come into his office, where he put his arms around her, kissed her and said, “Let me make love to you.” She said she “just panicked... I was like, how am I going to get out of here without making him angry?” She said she was told Smith had a reputation for “pushing himself on whoever he wanted.”
The woman said she reported the incident to her supervisor at the time. But Smith continued to pursue her, and she cleaned out her desk. Eventually, she said in the deposition, the judge in charge of dealing with sexual harassment complaints was notified, but he called to ask her: “What do you want me to do about it?”
Ty Clevenger, an attorney known for taking on public officials, lodged a complaint against Smith in 2014. A judicial council reprimanded Smith, saying he “does not understand the gravity of such inappropriate behavior.” Clevenger appealed, saying the disciplinary measures were too lenient and he believed there were other incidents. Further investigation was conducted ― the council concluded that Smith’s actions did not warrant a recommendation for impeachment ― but Smith retired in September 2016, ending the possibility of sanctions. (Clevenger said the woman declined to comment. Smith could not be reached for comment.)
One federal judge in California, who requested anonymity to speak freely, told HuffPost that among the complaints he has seen against judges on his court over the years, there haven’t been a lot of sexual misconduct allegations.
But the power imbalance is so significant, from how judges present physically ― in a robe, sitting above other people, in huge chambers ― to the constitutional role itself, that the judiciary must be particularly vigilant about inappropriate behavior.
The federal judge said a far bigger problem than sexual harassment, in his experience, is complaints of bullying ― “when you have the power, you’re under pressure, you’re tired, somebody makes a mistake and you just level them. I’ve seen that.”
And in those cases, he said, the chief judge of the court has to tell the judge: “Look, you have way too much power to do something like this. You do this, you know perfectly well she or he can’t fight back.”
UPDATE: Dec. 21 ― On Wednesday, Roberts called for a review of the federal judiciary’s procedures for protecting court employees from misconduct. He made the call as the law clerks’ letter was being circulated.
Read Wednesday’s letter below: