The U.S. Court of Appeals for the Ninth Circuit (photo by David Lat)
Yesterday’s testimony of former Ninth Circuit clerk Olivia Warren rocked the legal world. Given during the House Judiciary subcommittee hearing on misconduct within the federal judiciary, Warren’s powerful testimony detailed the sexual harassment and abuse she was subjected to during her tenure at the Ninth Circuit by the supposed liberal lion of the circuit, Stephen Reinhardt.
As the shock begins to wear off, the next question on everyone’s mind is what in the hell do we do about it? Because, make no mistake, Reinhardt is far from an isolated bad actor. Disgraced retired judge Alex Kozinski was accused of pernicious sexual harassment in 2017, and more recently, district court judge Carlos Murguia was reprimanded for his “inappropriate behavior.”
But what can actually be done to federal judges (with their lifetime appointments) accused of misconduct remains an open question. Ethical inquiries are stymied when judges decide to leave their current job rather than deal with the controversy. (The inquiry into Kavanaugh’s behavior disappeared because he left the D.C. Circuit when he got elevated to the Supreme Court. The inquiry into allegations of sexual harassment in the chambers of once-prominent Ninth Circuit judge Alex Kozinski were halted, mid-controversy, when Kozinski handed in his retirement papers. Judge Maryanne Trump Barry pulled a similar move when she retired from the Third Circuit, ending all hope that an ethics inquiry would reveal whether the judge was involved in tax evasion. When federal judges embroiled in controversy retire, they do so with full pensions.) And even if judges stay on the bench amid controversy, the consequences haven’t been particularly severe. (Judge Murguia was back on the bench a week after he was reprimanded for sexual harassment, and any further repercussions remains an open issue.)
So… yeah, what should be done to federal judges accused of misconduct is a hot button issue in the legal industry.
One of the results of Warren’s testimony has been the onslaught of congresspeople coming forward to say, yes, this is an issue we need to deal with. As Law.com reports, Rep. Hank Johnson, the chairman of the courts subcommittee, said:
“[S]ystemic harassment, discrimination, and abuses of power are entrenched in our federal court system.
“Our witnesses testified that the existing sexual harassment protections, including the reporting framework, are clearly inadequate. We must create reporting avenues that protect victims and their confidentiality,” Johnson said. “I look forward to being part of the solution as we change the federal courts into a safer place to work for all employees.”
And Rep. Hakeem Jeffries — himself a former SDNY clerk — said he wanted to hear from more stakeholders as the rulemaking process moves forward:
[I]n considering future hearings, [Jeffries] would like to hear from “a panel of judges who have rulemaking authority in the context of the atmosphere that exists for clerks and other employees of the judiciary.”
Jeffries added he would also like to hear from prominent law school deans who he believes could help shape the discussion.
Rep. Martha Roby said she is “committed to rigorous oversight of the judiciary to ensure the rights of employees and the systems in place to report abuses are widely known and effective.”
And Republican Rep. Ben Cline said he supports “a discussion to further improvements to the process to make it more transparent, to protect confidentiality and to ensure that every victim is heard.”
But behind all this flowery speech from both sides of the aisle, what the actual consequences for misconduct in the federal judiciary will be remains uncertain. The Judicial Conference working group focused on misconduct reforms was formed two years ago, and though they’ve released a report on how to change policies, actual change for clerks and other court employees on the ground hasn’t been realized.
Hopefully, powerful testimony like Warren’s will spur lawmakers and courts to make some real changes — and quickly.
Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).