Federal
judges
are
some
of
the
most
unaccountable
members
of
the
government,
since
they
are
exempt
from
Title
VII
of
the
Civil
Rights
Act
of
1964.
Judges,
simply
put,
are
above
the
anti-discrimination
laws
they
interpret.
And
law
clerks
—
the
public
servants
who
support
the
daily
functioning
of
our
courts
—
lack
basic
workplace
protections.
Not
for
much
longer,
if
Congress
acts.
Thanks
to
sustained
advocacy
and
public
consciousness-raising,
last
week,
with
little
fanfare,
Congress
reintroduced
the
Judiciary
Accountability
Act
(JAA)
(House/Senate),
legislation
that
will
extend
federal
anti-discrimination
protections
to
more
than
30,000
federal
judiciary
employees,
including
law
clerks
and
federal
public
defenders.
Importantly,
Article
I
federal
courts
—
including
the
D.C.
courts,
where
I
clerked
—
are
included,
thereby
ensuring
those
who
clerk
in
courts
created
by
Congress,
for
judges
who
are
confirmed
by
the
Senate
for
terms
of
15
years
or
less,
also
enjoy
basic
workplace
protections.
The
federal
judiciary,
unlike
the
two
other
branches
of
government
and
most
private
workplaces,
is
uniquely
exempt
from
not
just
Title
VII,
but
also
from
the
Americans
with
Disabilities
Act,
the
Rehabilitation
Act,
and
the
Age
Discrimination
Act.
The
JAA
would
correct
this
injustice
by:
-
Extending
protection
against
discrimination
based
on
gender,
gender
identity,
race,
disability,
and
age;
as
well
as
whistleblower
protection
against
retaliation. -
Standardizing
internal
Employee
Dispute
Resolution
(EDR)
Plans
in
all
federal
circuits. -
Revising
the
judicial
complaint
process
under
the
Judicial
Conduct
and
Disability
Act
so
judicial
misconduct
investigations
can
continue
even
after
judges
step
down. -
Creating
confidential
reporting
channels
for
clerks. -
Requiring
the
federal
judiciary
to
collect
and
report
data
—
publicly
and
to
Congress
—
annually
on
demographics
in
law
clerk
hiring,
outcomes
of
judicial
misconduct
complaints,
an
annual
workplace
culture
assessment,
and
an
assessment
of
the
EDR
Plan’s
effectiveness,
since
quantifying
the
scope
of
these
problems
is
the
first
step
toward
crafting
effective
solutions.
What
does
it
mean,
in
practice,
to
work
in
an
environment
that’s
exempt
from
anti-discrimination
laws?
If
you
are
a
disabled
clerkship
applicant,
judges
can
legally
refuse
to
hire
you.
As
a
clerk,
they
can
refuse
to
provide
you
reasonable
accommodations,
or
fire
you
rather
than
accommodate
your
disability.
Suppose
you
are
a
female
clerk
who,
like
me,
presents
as
“bossy”
or
assertive.
In
that
case,
the
judge
can
fire
you
—
and
you
have
no
legal
recourse
for
harm
done
to
your
career,
reputation,
or
future
earning
potential.
If
you
get
pregnant
during
your
clerkship,
or
you
have
childcare
responsibilities,
it
is
up
to
the
judge’s
discretion
whether
to
offer
any
parental
leave.
Too
often,
judges
consider
this
a
“disruption”
to
chambers
and
opt
for
the
“easier”
path
—
telling
the
clerk
to
leave.
And,
of
course,
because
the
judiciary
refuses
to
collect
and
report
any
data
on
the
demographics
of
law
clerk
hiring,
we
know
very
little
about
the
demographics
of
judges’
chambers
or
their
hiring
practices
—
except
when
judges
announce
who
they’re
boycotting
that
day.
As
long
as
judges
are
immune
from
accountability,
there
will
be
no
guardrails
in
place
to
protect
against
some
of
the
worst
human
impulses,
particularly
in
small,
secluded,
stressful,
hierarchical
work
environments
—
such
as
screaming
at
and
berating
subordinates,
throwing
things,
and
even
firing
clerks
in
moments
of
frustration
—
because
judges
cannot
be
held
legally
accountable
for
abusive
conduct.
Title
VII
sets
a
bare
minimum
for
workplace
conduct
standards
—
one
the
judiciary
falls
short
of,
even
as
judges
preside
over
Title
VII
cases
themselves.
This
exemption
also
reinforces
the
warped
idea
of
a
judge’s
chambers
as
their
little
“fiefdom”
—
where
each
individual
judge
is
hiring
coordinator,
human
resources
director,
and
DEI
manager,
even
though
they
often
lack
the
training
and
expertise
for
these
roles.
Due
to
the
dangerous
combination
of
the
lack
of
workplace
protections,
lack
of
outside
oversight
over
judges’
dealings
with
clerks
or
training
on
management
style,
and
decentralized
nature
of
the
judiciary,
the
Administrative
Office
of
the
U.S.
Courts
(AO)
and
Judicial
Conference
have
gotten
away
with
turning
a
blind
eye
to
judicial
misconduct
for
decades.
And
law
clerks
—
the
least
powerful
members
of
the
judicial
branch
—
are
typically
silenced
due
to
fear
of
reputational
harm
or
retaliation,
and
self-interest.
While
the
AO
occasionally
engages
in
signaling
mechanisms
following
high-profile
scandals
—
for
example,
making
some
window
dressing
changes
to
internal
policies
following
notorious
Ninth
Circuit
harasser
Alex
Kozinski’s
2017
resignation
—
they
seem
intent
on
riding
out
one
scandal
and
waiting
for
the
next,
evidenced
by
the
fact
that
they
have
used
the
same
stock
statement
—
claiming
that
they
have
“robust
internal
reporting
mechanisms”
in
place
—
in
response
to
news
stories
about
multiple
scandals
this
summer.
Sadly,
as
long
as
neither
Congress
nor
the
media
holds
the
Third
Branch
accountable,
by
asking
tough
questions
about
or
reporting
on
their
repeated
failures
to
ensure
safe
work
environments
for
employees
or
hold
judges
accountable
for
misconduct,
the
judiciary
will
conduct
business
as
usual,
rather
than
engage
in
the
hard
work
of
implementing
meaningful
reform
—
especially
if
it
would
uncover
actionable
misconduct
in
their
ranks
and
require
disciplining
their
colleagues.
I
—
and
later
The
Legal
Accountability
Project
—
have
been
sounding
the
alarm
bells
about
the
urgency
of
passing
the
JAA
since
the
bill
was
first
introduced
in
2021.
When
I
started
this
work,
few
knew
the
federal
judiciary
was
exempt
from
Title
VII,
let
alone
cared
enough
to
ask
about
the
legislation’s
status.
Now,
broad
public
awareness
and
support
extend
far
beyond
the
legal
profession.
Why
now?
This
legislation
has
garnered
renewed
attention
—
and
the
federal
judiciary,
renewed
scrutiny
—
this
summer,
in
the
wake
of
former
Alaska
federal
judge
Joshua
Kindred’s
resignation.
Kindred
resigned
in
scandal
in
July
after
a
rare
20-month
Ninth
Circuit
Judicial
Council
investigation
revealed
appalling
—
but
not
surprising
—
abuse
and
sexual
harassment
in
his
judicial
chambers.
And,
in
another
rare
move
by
the
Judicial
Conference,
the
federal
judiciary’s
policy-making
body,
even
after
Kindred
resigned,
recommended
the
U.S.
House
of
Representatives
consider
potential
impeachment
proceedings.
If
successful,
impeachment
would
bar
Kindred
from
holding
public
office
again.
This
may
also
be
why
the
JAA
garnered
support
from
Alaska
Republican
Sen.
Lisa
Murkowski,
who
has
been
vocal
about
the
need
for
reform
since
Kindred’s
resignation.
Of
course,
judicial
accountability
is
not
a
partisan
issue:
both
Democratic
and
Republican
judicial
appointees
mistreat
their
clerks,
and
both
liberal
and
conservative
clerks
are
mistreated
by
the
most
powerful
members
of
the
profession,
with
no
legal
recourse.
Yet
this
issue
warrants
a
broader
bipartisan
legislative
response.
Soon
after
Kindred’s
resignation,
back
to
back
reports
were
released
—
from
the
Federal
Judicial
Center
and
National
Academy
of
Public
Administration,
then
by
the
U.S.
Government
Accountability
Office
—
underscoring
enormous
deficiencies
in
the
federal
judiciary’s
internal
mechanism
of
“self-policing,”
the
Employee
Dispute
Resolution
(EDR)
Plan.
These
reports
highlighted
a
lack
of
standardized
processes,
metrics
for
success,
data
collection,
and
transparency
—
as
well
as
a
lack
of
training
for
the
EDR
Coordinators
and
Directors
of
Workplace
Relations
tasked
with
enforcing
the
plan
in
courthouses
nationwide.
Mistreated
clerks’
courthouse
and
circuit
points
of
contact
are
not
there
to
represent
their
interests
or
help
them
navigate
the
byzantine
reporting
and
complaint
processes.
Rather,
they
serve
as
“HR
for
the
judiciary.”
The
federal
judiciary’s
insular
insistence
on
strictly
“self-policing”
—
eschewing
any
attempts
by
Congress
at
outside
oversight
—
has
led
to
an
outrageous
lack
of
accountability
for
judges
who
commit
misconduct,
including
those
who
mistreat
their
clerks.
Sexual
and
gender-based
harassment,
discrimination,
bullying,
abusive
conduct,
and
retaliation
are
pervasive
and
unaddressed
in
the
federal
courts.
Yet
the
judiciary
has
historically
been
unwilling
to
collect
and
report
any
data
—
the
first
step
toward
crafting
effective
solutions,
nor
admit
the
scope
of
these
problems
—
let
alone
enact
the
sweeping
reforms
necessary
to
fix
them.
My
nonprofit,
The
Legal
Accountability
Project,
runs
a
nationwide
Centralized
Clerkships
Database,
compared
to
“Glassdoor
for
Judges,”
containing
over
1,300
candid
reviews
about
more
than
900
federal
and
state
judges.
I
also
spend
extensive
time
counseling
clerks
on
their
options
and
speaking
with
law
school
clerkship
advisors,
federal
judges,
and
occasionally
others
within
the
federal
courts
about
how
to
foster
transparency
and
accountability
in
judicial
clerkships
and
the
judiciary.
It’s
clear
these
problems
run
much
deeper
than
anyone
would
care
to
admit.
Clerks
who
were
bullied,
harassed,
or
terminated
(or
quit
rather
than
endure
abuse),
or
retaliated
against,
overwhelmingly
have
not
and
would
not
report
the
mistreatment
to
the
federal
judiciary,
either
under
the
EDR
Plan
or
the
Judicial
Conduct
and
Disability
Act.
Clerks
believe
their
concerns
will
not
be
taken
seriously.
And
perhaps
even
more
importantly,
they
are
not
legally
protected
under
Title
VII
against
retaliation
by
judges
—
their
powerful,
life-tenured
bosses
who
wield
enormous
power
over
their
careers
and
reputations.
When
the
stakes
are
high
and
the
likelihood
of
success
is
low,
they’re
unlikely
to
stick
their
necks
out
by
reporting
misconduct.
A
wholly
internal
mechanism
of
dispute
resolution
that
relies
on
subordinates
—
fresh-out-of-law-school
clerks,
in
their
first
legal
jobs,
totally
dependent
on
judges
for
references
and
career
advancement
—
reporting
on
their
powerful
superiors
—
life-tenured
federal
judges,
the
most
powerful
(and
unaccountable)
members
of
our
profession
—
does
not
and
will
not
work,
unless
clerks
are
legally
protected
against
retaliation.
It
is
the
height
of
injustice
that
law
clerks
—
who
support
the
daily
functioning
of
our
courts
—
lack
basic
workplace
protections.
There
is
no
better
time
to
pass
the
JAA
—
when
these
issues
are
particularly
salient
in
the
public
consciousness
—
to
finally
ensure
legal
accountability
for
judges
who
mistreat
clerks,
as
well
as
safe
work
environments
for
law
clerks.
The
JAA
is
a
forceful
step
toward
ensuring
safe,
supportive
work
environments
for
judiciary
employees
through
legal
accountability.
As
someone
who
not
only
could
have
benefited
from
these
protections
myself,
but
who
now works
to
fix
the
systems
that
failed
me
when
I
was
a
clerk, I
hope
Congress
will
make
passing
this
legislation
a
priority.
There
is
no
substitute
for
congressional
action.
Correcting
this
injustice
has
never
been
more
urgent,
as
another
class
of
eager
young
attorneys
are
embarking
on
federal
clerkships,
and
thousands
more
are
about
to
begin
the
clerkship
application
process.
We
should
hold
the
federal
judiciary
to
the
highest
ethical
standards,
not
the
lowest.
And
in
the
face
of
repeated
evidence
of
egregious
misconduct
and
repeated
failures
to
enact
change,
we
should
demand
not
just
answers,
but
action
—
from
both
the
judiciary
and
lawmakers.
Judges
should
not
be
above
the
laws
they
interpret.
And,
if
we
can
inspire
some
steely
spines
and
congressional
action,
they
won’t
be
any
longer.
Aliza
Shatzman
is
the
President
and
Founder
of The
Legal
Accountability
Project,
a
nonprofit
aimed
at
ensuring
that
law
clerks
have
positive
clerkship
experiences,
while
extending
support
and
resources
to
those
who
do
not.
She
regularly
writes
and
speaks
about
judicial
accountability
and
clerkships.
Reach
out
to
her
via
email
at [email protected] and
follow
her
on
Twitter
@AlizaShatzman.