The Washington PostDemocracy Dies in Darkness

Group tasked with examining harassment in the judiciary recommends sweeping changes

Then-Judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit, shown in Washington in March 2017.
Then-Judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit, shown in Washington in March 2017. (Justin Sullivan/Getty Images)

The group tasked by Chief Justice John G. Roberts Jr. with examining harassment in the federal judiciary found inappropriate conduct, while not pervasive, is also “not limited to a few isolated instances” and recommended sweeping changes to help ferret out wrongdoing, according to a report made public Monday.

The 45-page report from the judiciary’s working group to address workplace misconduct did not detail specific instances of wrongdoing but laid out how policies and procedures left concerning gaps in how courthouse misconduct could be reported and policed.

It recommended revising written codes in several key respects, as well as creating offices at the national level and in each judicial circuit to help employees navigate the process of complaining about workplace malfeasance.

The report is the latest in the judiciary’s effort to impose changes in the wake of sexual misconduct allegations against Alex Kozinski, a once powerful and well-known judge in the U.S. Court of Appeals for the 9th Circuit.

Last year, Kozinski stepped down from the bench amid reports in The Washington Post about 15 women who said the judge subjected them to a broad range of sexual misconduct, ranging from showing them explicit images in his chambers to touching them inappropriately. He has 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.”

Prominent appeals court judge Alex Kozinski accused of sexual misconduct

The judiciary initiated an investigation of Kozinski but closed it in February, saying his retirement effectively took away its jurisdiction. Meanwhile, Roberts initiated a more systemic look at sexual harassment.

The report released Monday is the product of that review. It focuses mostly on broad policies, rather than scrutinizing particular allegations, and says that “of the inappropriate behavior that does occur, incivility, disrespect, or crude behavior is more common than sexual harassment.”

Former clerks who have been involved in the process said the report was a significant step forward.

“For right now, an important focus point is this shows in the past five months, the judiciary has really dug in on these issues in a really meaningful way, and they’re focusing on the right points and the right tensions,” said Jaime Santos, a former 9th Circuit clerk who helped organize a letter, signed by hundreds of current and former clerks, calling on top judiciary officials to overhaul how they handle harassment claims.

The report found that the judiciary’s “codes and publications were not developed with the aim of addressing the particular issues of workplace harassment or incivility, and they do not take full account of the nuances of these problems.” In particular, it said, the policies left some with the misunderstanding that judicial confidentiality rules prevent reporting misconduct and the judiciary’s code of conduct could “make clearer that judges cannot turn a blind eye to a colleague’s mistreatment of employees.”

Emily Murphy, a law professor and former 9th Circuit clerk who was among those who publicly described her experience with Kozinski, said: “I think that’s really, really important to recognize. I think judges have to be accountable to each other for the rest of us to believe in the judiciary, with the amount of public trust and power it has.”

Federal judiciary to track and release data on sexual harassment complaints in wake of judge’s resignation

The report recommended that all circuits expand one system for reporting wrongdoing — known as the Employee Dispute Resolution program — so it could be used by interns, externs and anyone who works in a judge’s chambers to report wrongdoing. Previously, such employees had been excluded from the program in some circuits.

It also recommended creating a process so employees could make alternative work arrangements “when egregious conduct by a judge or supervisor makes it untenable for the employee to continue to work for that judge or supervisor.”

“The absence of such a remedy can be a significant deterrent to reporting misconduct,” the report said.

The judiciary already has implemented some of the recommended changes — for example, establishing an Office of Judicial Integrity to provide advice to employees who have complaints, updating the handbook for law clerks to encourage reporting sexual harassment and expanding workplace conduct training provided by the Federal Judicial Center. The report’s other recommendations, though, must still be approved and implemented by the Judicial Conference of the United States, which is essentially the policymaking body for the federal court system.