Chief Justice John G. Roberts Jr. said Monday that the federal judiciary has made strides in protecting law clerks and other employees from sexual harassment and other workplace misconduct, but he added that too often, such behavior is still unreported.
Roberts said he will keep in place a working group of judges and others to monitor the implementation of recommendations and initiatives started in the past year, after he announced an investigation of misconduct in the judiciary.
“The job is not finished until we have done all that we can to ensure that all of our employees are treated with fairness, dignity, and respect,” Roberts wrote in his annual Year-End Report on the Federal Judiciary.
But Roberts did not address two issues that have drawn criticism: that investigations of federal judges end if a judge retires or resigns, and that the rules do not apply to Supreme Court justices.
In December, a judicial council that reviewed dozens of misconduct claims against Justice Brett M. Kavanaugh said that it found the allegations “serious” but that it could not pursue them because its authority does not extend to the Supreme Court.
The 83 claims filed by lawyers, doctors, professors and others accused Kavanaugh of making false statements during his Senate confirmation hearings, displaying a lack of judicial temperament, making inappropriate partisan statements and treating members of the Senate Judiciary Committee with disrespect, according to the 10-page order from the Judicial Council of the 10th Circuit.
Roberts had referred the complaints — which sprang from last year’s acrimonious confirmation hearings before the Senate voted narrowly to confirm Kavanaugh — to the Colorado-based council from the U.S. Court of Appeals for the D.C. Circuit, where Kavanaugh previously served.
The larger examination of judicial misconduct began after The Washington Post reported in 2017 about sexual misconduct allegations against Alex Kozinski, a once-influential and well-known judge on the U.S. Court of Appeals for the 9th Circuit.
Kozinski stepped down from the bench amid reports from 15 women who said he subjected them to a wide range of sexual misconduct, from showing them explicit images in his chambers to touching them inappropriately.
Kozinski apologized, saying that he “had a broad sense of humor and a candid way of speaking to both male and female law clerks alike” and that, “in doing so, I may not have been mindful enough of the special challenges and pressures that women face in the workplace.”
A judicial investigation of Kozinski closed in February, with judges saying his retirement effectively eliminated its jurisdiction. In the meantime, Roberts initiated a more systemic look at sexual harassment.
The report submitted in June recommended revising written codes in several key respects, as well as creating offices in each judicial circuit and at the national level to help employees with workplace complaints.
It made clear that the confidentiality expected of law clerks in their dealings with judges did not extend to remaining quiet about inappropriate behavior.
“The very qualities that make the position of law clerk attractive — particularly, the opportunity to work with a senior member of the legal profession in a position of mentorship and trust — can create special risks of abuse,” Roberts wrote in his year-end report.
Roberts said that the working group he put together “found that the judiciary compares favorably to other government and private sector workplaces.”
But he noted it also found that while “inappropriate workplace conduct is not pervasive” in federal courthouses, “it also is not limited to a few isolated instances involving law clerks.”
It is “more likely to take the form of incivility or disrespect than overt sexual harassment, and it frequently goes unreported,” Roberts wrote.
While he did not address the fact that the judicial code of conduct does not extend to the Supreme Court, which is established by the Constitution, Roberts said that “the Supreme Court will supplement its existing internal policies and training programs for all of its employees based on the initiatives and experience of the other federal courts.”
At a public hearing last fall, some criticized the changes as not going far enough, and some members of Congress pondered whether they should step in.
Roberts, as he often does, gently noted the judiciary’s independence.
“The judiciary is, of course, an independent and self-governing branch of government, but it has nevertheless sought input from all interested quarters,” he wrote.
Ann E. Marimow and Matt Zapotosky contributed to this report.