The Washington PostDemocracy Dies in Darkness

Opinion What happens when judges misbehave? Not enough.

A judge's gavel. (iStock)

Federal judges are among the most powerful — and unaccountable — people in the United States, ruling on contentious disputes with none of the checks that the political branches of government face. This insulates them from political pressure. But it also means they get little pushback and much flattery from lawyers, clerks and others seeking their favor. Because judicial independence is a vital norm, judges must hold themselves to a high standard.

Unfortunately, they do not always do so. See, for example, the leaked results of a survey of staff in the U.S. Court of Appeals for the District of Columbia Circuit, which The Post’s Ann E. Marimow revealed last month. The survey found widespread satisfaction among the surveyed staff, but also that some employees “have personally experienced repeated incidents of wrongful conduct,” such as sex discrimination and bullying. The survey turned up 57 reports from individuals claiming to have personally experienced problematic behavior, and 134 who said they saw or heard about misconduct.

Four, for example, pointed out that D.C. Circuit Judge Karen L. Henderson hires only male clerks. The Post dug through records dating back to 1990 and could find only a single instance of Ms. Henderson hiring a female clerk. Other allegations include yelling at staff, retaliation after an employee had to leave work early for a family emergency and cruel comments.

Such issues are not unique to the D.C. Circuit. According to The Post, “In January, the Administrative Office of the U.S. Courts scrambled to contain the fallout after nearly three dozen judges’ staffers indicated on a training registration form that they had observed some form of inappropriate behavior.” And in a lawsuit filed last summer, more than 20 current and former staff members described an inadequate system to protect judicial employees from, for example, female clerks receiving comments about their body parts.

Federal judicial clerks and those applying for these elite positions trade intelligence about which judges are unreasonable to staff — even to the point of abuse or harassment. Ambitious young lawyers covet these spots anyway, because they lead to top jobs and big payouts from law firms. Their incentive is to endure the experience, rather than upsetting judges who can determine their futures.

Judge Alex Kozinski from the U.S. Court of Appeals for the 9th Circuit resigned in 2017 following allegations of sexual misconduct, leading to calls for better workplace protections for federal judicial staff. But D.C. Circuit survey respondents said the system still relies too much on judges punishing colleagues.

Congress has gotten involved. Lawmakers have proposed extending federal antidiscrimination protections to courthouse employees and creating a special counsel to handle misconduct claims. Federal judges decry the proposal as an improper intrusion by the legislative branch on judicial independence; two warned in March congressional testimony that the proposed system “could be used by the political branches or others to influence, intimidate, harass, or punish judges, or could target its investigative resources at judges based on their decisions.”

These are serious concerns. For the sake of the legal system’s legitimacy and proper functioning, judges must show in the coming months and years that they can treat everyone — those before the court and those working behind the scenes — with fairness and respect.

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