Law clerks, ethics professors and advocates of court transparency pressed Tuesday for greater disclosure and accountability about misconduct complaints against federal judges who wield tremendous power in insular courthouses throughout the country.
Chief Justice John G. Roberts Jr. proposed revamping the disciplinary system following sexual misconduct claims against Alex Kozinksi, a once prominent appeals court judge in California. Kozinski stepped down last year after The Washington Post reported that 15 women had accused him of a range of misconduct.
The proposed changes cover the handling of workplace harassment claims and were reviewed during a day-long hearing in Washington led by appeals court judges Ralph R. Erickson and Anthony J. Scirica. Legal experts and reform advocates urged the creation of a national, confidential reporting system, independent investigations and greater disclosure to enhance public confidence in the courts.
“Transparency should be the default,” Gabe Roth, executive director of Fix the Court, said in written testimony. “Neither a judge’s written response to a complaint nor any disciplinary action should remain private.”
Charles Geyh, a legal-ethics professor at Indiana University, told a panel of 10 judges that the Kozinski controversy exposed serious gaps in the system. The process in which judges discipline each other, he said, is particularly problematic and gives judges too much discretion to look the other way.
The system should “be about promoting public confidence” rather than “self-protection,” he said.
The draft changes would not apply to the Supreme Court, which is not bound by the misconduct rules, although several people submitted testimony suggesting that any overhaul should extend to the justices.
Earlier this month, Roberts referred more than a dozen complaints filed against now-Justice Brett M. Kavanaugh to a federal appeals court in Colorado. The complaints against Kavanaugh relate to statements he made during his contentious Senate confirmation hearings and were initially filed with the appeals court in Washington, where he was a judge for 12 years.
The revised rules clearly define prohibited abusive and harassing behavior and are designed to protect employees from retaliation for reporting or disclosing judicial misconduct. Under the draft, all judges who hear about bad behavior by a colleague are required to report it to the court’s chief judge.
More than 650 law students signed a letter urging more sweeping overhaul and said the draft rules “do not go far enough to confront major gaps in information and reduce barriers to reporting.”
“As law students and future judicial employees, many of us would refuse to file a report under such conditions, for fear of facing retaliation and damaging future career prospects,” according to the letter.
Law clerks rely on relationships with the judges they serve for recommendations for higher level clerkships, positions at law firms and in academia. Clerks have been concerned that reporting would violate confidentiality policies about case work in individual judges’ chambers.
Alyssa Peterson, a third-year law student at Yale who testified Tuesday, said there is widespread concern among her peers. Without a reporting system that works, she said, the “rest of the changes don’t matter.”
Under the current system, law clerks and other judiciary employees appear reluctant to file complaints. Not one misconduct complaint came from the 30,000 people working for the federal judiciary in fiscal 2016.
Former law clerks called for an independent investigative process so that judges are not tasked with reviewing allegations filed against their colleagues on the bench.
“This arrangement not only puts judges in difficult positions; it also compromises employees’ and the general public’s confidence in the judiciary’s handling of misconduct complaints,” former clerks Kendall Turner and Jaime A. Santos wrote on behalf of Law Clerks for Workplace Accountability.
Misconduct complaints are typically confidential and do not become public until they are fully investigated. The chief judge of a circuit court normally reviews complaints against judges in that local circuit.
Complaints can be transferred “in exceptional circumstances” by the chief justice to another circuit if the local chief judge concludes it cannot properly handle the claims, for instance, because of the high visibility of the matter.
Roberts referred Kozinski’s case for review by the U.S. Court of Appeals for the 2nd Circuit. After Kozinski stepped down, the circuit announced it was closing the investigation because it no longer had jurisdiction over the former judge.
The chief justice this month referred the 15 complaints filed against Kavanaugh — that he was dishonest and lacked judicial temperament during his Senate testimony — to the 10th Circuit but because misconduct rules do not apply to Supreme Court justices it is unclear what will become of that review.
Paul Horvitz, who filed one of the complaints against Kavanaugh, told the committee in prepared testimony that the rules should require prompt public disclosure of any claim against a judge seeking confirmation to a higher court. The District of Columbia Circuit announced the complaints about Kavanaugh two weeks after the appeals court sent the first transfer request to the Supreme Court.
“The announcement came on a Saturday, hours before the judge was sworn in,” wrote Horvitz, an editor in Massachusetts. “This does not inspire confidence, but you can fix this.”
The changes proposed to the code and rules must be approved by the Judicial Conference of the United States, the governing body for the federal court system.
Matt Zapotosky contributed to this report