As the US judiciary confronts its #MeToo moment, officials plan to release a highly anticipated report this month addressing potential sexual harassment in the nation’s courthouses and how complaints are handled.
Officials began examining problems after former law clerks and other staffers went public with sexual harassment claims against US Appeals Court Judge Alex Kozinski, a nationally prominent jurist who had served for more than 30 years in California.
Kozinski, who had been subject to misconduct allegations in 2009, retired after the new claims were made, beginning with a December story in The Washington Post. A formal misconduct complaint was filed, but judicial officials declined to investigate because Kozinski retired.
A CNN special report in January, examining about 5,000 judicial orders arising from misconduct complaints over the past decade, found that rarely do the judges overseeing the system find that a claim — by a lawyer, litigant or employee — warrants an investigation. Even rarer is any judge disciplined. In most cases when a judge faced serious scrutiny, the CNN report found, the judge retired and ended all disciplinary proceedings.
Judiciary officials say that is because the great majority of misconduct complaints filed each year are frivolous or related to merits of a case, rather than a judge’s behavior. According to the Administrative Office of the US Courts, no employee filed a sexual harassment claim last year.
The misconduct reporting system, dating to a 1980 law, has long been shrouded in secrecy and been difficult for the public to evaluate.
More than 1,000 orders related to misconduct are posted annually on the websites of the nation’s 13 US judicial circuits. They contain scant details and are not categorized in a way to separate the frivolous from those with merit.
Simply filing a legitimate grievance can be difficult, too, as forms and instructions are not easily retrieved and deciphered across the circuits. Generally, the complaint forms are to be printed out and submitted in person or by mail. Most of the websites highlight in bold print that those with a grievance must not put the judge’s name on the envelope but then offer little guidance for how to get the complaint into the right hands, beyond standard language about submitting to “the appropriate clerk of court.”
Some former court employees who publicly complained about Kozinski said they were wary about making complaints or feared retaliation. Kozinski has not spoken publicly since an early statement that he “may not have been mindful enough of the special challenges and pressures that women face in the workplace.”
After the news media attention, Chief Justice John Roberts established an eight-member working group to assess problems with sexual harassment in the judiciary. David Sellers, spokesman for the Administrative Office of the US Courts, said the working group remains on schedule for a report by the end of May.
House and Senate leaders have been following the group’s progress. Among their concerns, according to a May 8 letter from House Judiciary Committee Chairman Bob Goodlatte and Ranking Democrat Jerrold Nadler, are whether the “power imbalance between judges and employees” and “unknown procedures for pursuing a complaint against a judge” discourage victims from coming forward.
The nation’s nearly 900 federal judges are appointed for life.
In the Senate, Judiciary Committee Chairman Chuck Grassley and Ranking Democrat Dianne Feinstein have been in regular contact with judicial officials asking for progress updates.
James Duff, director the Administrative Office of the US Courts, responded to their queries in February by saying officials would begin tracking and releasing annual data on sexual harassment complaints.
Duff separately told a House committee in April that an option under consideration would provide a new “less formalistic” reporting channel for employees who might be seeking guidance and counseling.
Whether the nature or number of complaints made through such a process would become public had not been determined.
“While the specific structure and details for this new process are being worked out,” Sellers wrote in an email to CNN, “the informal nature may make it difficult to capture data.”