Less
than
a
year
ago,
in
July
2024,
former
Alaska
federal
judge
Joshua
Kindred
resigned
after
the
Ninth
Circuit
Judicial
Council
found
that
he
sexually
harassed
his
law
clerks
and
created
a
hostile
work
environment
during
his
five
years
on
the
bench.
I
was
literally
jolted
out
of
bed
by
a
late-night
message
from
The
New
York
Times
seeking
comment.
Kindred’s
resignation
was
startling
—
federal
judges
rarely
relinquish
lifetime
appointments
—
and
it
triggered
a
wave
of
soul-searching
within
the
legal
community.
This
was
a
rare
moment
in
which
a
federal
judge
stepped
down
amid
misconduct
allegations,
perhaps
the
biggest
judicial
misconduct
scandal
since
notorious
harasser
Alex
Kozinski
stepped
down
seven
years
earlier
from
the
same
circuit.
Yet
some
suggested
Kindred
was
merely
a
“bad
apple,”
and
the
judiciary
itself
cast
his
departure
as
an
example
of
its
commitment
to
curbing
misconduct.
Recent
events
tell
a
more
ominous
story.
Last
month,
National
Public
Radio
released
the
results
of
a
year-long
investigation,
in
which
42
current
and
former
judiciary
employees
described
pervasive
harassment,
bullying,
and
abusive
conduct
by
24
federal
judges
appointed
by
both
political
parties.
Law
clerks
are
notoriously
fearful
of
speaking
with
the
press.
The
judiciary
was
big
mad
about
the
reporting,
considering
how
hard
they
work
to
keep
these
issues
secret
and
how
they’ve
weaponized
“confidentiality”
to
prevent
law
clerks
from
speaking
up
about
mistreatment.
They
pushed
back,
arguing
two
of
the
three
judges
profiled
in
the
piece
are
no
longer
on
the
bench,
as
evidence
they
take
these
issues
seriously
and
encourage
the
most
abusive
judges
to
step
down.
The
judiciary
claims
they’ve
“strengthened
protections
considerably”
to
create
safe
and
respectful
judicial
workplaces.
Despite
their
assurances
of
reform,
judicial
leaders
offered
little
detail
about
concrete
steps
to
protect
law
clerks
or
to
hold
judges
accountable.
Indeed,
the
judiciary
continues
to
rely
on
suspiciously
low
numbers
of
formal
complaints
to
claim
its
workplace
culture
is
thriving
—
when
many
law
clerks,
in
reality,
feel
too
intimidated
to
come
forward.
A
curious
benchmark,
considering
the
judiciary
rarely
initiates
an
independent
investigation
absent
a
misconduct
complaint
initiated
by
a
law
clerk.
The
Administrative
Office
of
the
U.S.
Courts
(AO)
and
Judicial
Conference
regularly
point
to
their
suspiciously
low
misconduct
numbers
—
just
seven
Employee
Dispute
Resolution
(EDR)
complaints
from
law
clerks
over
two
years
between
2021
and
2023,
and
just
two
Judicial
Conduct
and
Disability
(JC&D)
Act
complaints
filed
by
judiciary
employees
(law
clerks
or
permanent
court
staff)
in
2024,
as
evidence
that
they
do
not have
a
widespread
problem.
In
truth,
these
figures
reflect
a
system
that
discourages
reporting
by
signaling
that
complaints
are
unwelcome
and
unlikely
to
succeed.
Too
many
clerks
simply
suffer
in
silence
because
they
see
no
meaningful
alternative.
A
low
number
of
misconduct
complaints
does
not
necessarily
indicate
a
safe
workplace.
In
fact,
it
often
suggests
reporting
mechanisms
are
broken
or
nonexistent,
and
employees
do
not
feel
safe
reporting
misconduct.
The
judiciary
fails
to
understand
what
most
mistreated
clerks
tell
me:
they
have
not
and
would
not
report
misconduct
to
the
federal
courts
because
they
do
not
believe
their
concerns
will
be
taken
seriously
and
robustly
investigated.
The
headwinds
against
reporting
misconduct
are
enormous.
When
clerks
do
speak
up
—
filing
a
complaint
or
otherwise
calling
attention
to
misconduct
—
the
institution
often
responds
by
quietly
reassigning
them
to
different
judges,
rather
than
addressing
the
root
of
the
problem.
In
the
most
egregious
cases,
judges
are
encouraged
to
retire
or
resign
instead
of
facing
real
scrutiny.
But
a
resignation
is
hardly
a
cure
if
the
judge
remains
free
to
mistreat
new
subordinates
in
private
practice
—
or
to
punish
former
clerks
by
offering
bad
references
or
otherwise
undermining
their
careers.
Indeed,
those
who
strive
to
hold
abusive
judges
accountable
can
face
extensive,
behind-the-scenes
retaliation.
And,
in
smaller
legal
markets
—
like
the
Minnesota
bankruptcy
bar
—
judges
wield
enormous
power
over
clerks’
careers
and
reputations.
The
fear
of
retaliation
or
retribution
by
a
powerful
judge
silences
clerks
from
speaking
up
or
filing
complaints.
Just
ask
them.
Today,
the
District
of
Minnesota
faces
its
own
reckoning.
Less
than
a
year
after
Kindred’s
high-profile
resignation,
federal
bankruptcy
judge
Kesha
Tanabe
—
appointed
by
judicial
colleagues
—
is
attempting
to
resign
quietly
on
March
31,
2025,
allegedly
amid
serious
misconduct
allegations,
apparently
to
evade
accountability.
Under
the
current
application
of
the
JC&D
Act
and
its
accompanying
Rules
for
Judicial
Conduct
and
Disability
Proceedings,
once
a
judge
steps
down,
the
judiciary
loses
jurisdiction
over
the
judge,
halting
an
investigation
in
its
tracks.
Disturbingly,
Judge
Tanabe
is
not
the
only
example
in
this
district:
another
Minnesota
judge,
Wilhelmina
Wright,
allegedly
retired
last
year
under
similar
circumstances
of
apparent
misconduct.
The
pattern
suggests
that
quiet
resignations,
rather
than
thorough
investigations,
have
become
the
norm.
Rather
than
take
this
opportunity
to
signal
a
newfound
commitment
to
transparency
and
accountability,
the
federal
judiciary
is,
as
usual,
doing
everything
they
can
to
keep
this
quiet.
Not
just
to
protect
their
colleague.
But
perhaps
more
importantly,
the
judiciary
would
prefer
not
to
read
another
story
about
pervasive
and
unaddressed
misconduct
in
the
federal
courts,
one
that
would
shine
a
public
spotlight
—
again
—
on
the
outrageous
lack
of
guardrails,
accountability,
reporting
processes,
and
transparency
in
the
federal
courts.
While
the
judiciary
claims
to
have
made
changes,
the
series
of
events
that
allegedly
led
to
Tanabe’s
resignation,
as
well
as
the
judiciary’s
attempts
to
cover
it
up,
suggest
otherwise.
To
be
clear,
there
is
no
suggestion
here
that
Tanabe’s
alleged
wrongdoing
mirrors
the
same
type
of
sexual
harassment
described
in
the
Kindred
case.
But
there
is
no
question
that
both
matters
reflect
a
larger
problem:
judges
who
mistreat
their
staff
or
violate
professional
norms
are
rarely
subject
to
meaningful
discipline.
More
troubling
still,
clerks
who
seek
accountability
are
sometimes
urged
not
to
file
complaints
—
or
pressured
to
withdraw
them
if
they
do.
In
some
instances,
those
dissuading
clerks
from
reporting
are
themselves
judicial
employees
entrusted
with
offering
impartial
support.
And
it’s
worth
reiterating
that
judicial
misconduct
is
a
bipartisan
issue:
both
Democratic
and
Republican
judicial
appointees
mistreat
their
clerks,
and
both
liberal
and
conservative
clerks
have
been
mistreated
by
powerful
judges,
with
no
legal
recourse.
Kindred
is
a
Republican;
Tanabe
is
a
Democrat.
Tanabe,
a
liberal
appointee,
served
for
merely
three
years.
During
that
time,
she
allegedly
mistreated,
fired,
and
retaliated
against
several
employees
—
and
judges
typically
only
have
two
clerks
and
one
judicial
assistant
at
a
time.
Tanabe
has
allegedly
been
under
scrutiny
by
the
Eighth
Circuit
for
several
years,
though
you
would
not
know
that
from
the
press
release
announcing
her
resignation:
According
to
District
of
Minnesota
Chief
Judge
Schiltz:
Judge
Tanabe
has
contributed
much
over
the
past
three
years,
in
her
work
as
a
bankruptcy
judge,
as
a
frequent
speaker,
as
a
mentor
to
countless
lawyers
and
judges,
and
as
a
member
of
our
“federal
family.“
We
will
miss
Judge
Tanabe,
but
she
will
resume
her
role
as
one
of
the
leading
bankruptcy
attorneys
in
Minnesota,
so
we
will
see
her
often.
And,
from
Chief
Bankruptcy
Judge
Constantine:
“We
are
thankful
for
Judge
Tanabe’s
service,
particularly
her
endeavors
to
educate
both
bench
and
bar.”
Despite
these
misleading
claims,
it’s
my
understanding
that
many
of
Tanabe’s
clerks
and
other
subordinates
do
not
share
these
judges’
sentiments. Once
a
brave
clerk
raised
a
complaint,
the
judge
apparently
agreed
to
resign.
While
chief
judges
are
theoretically
empowered
to
open
JC&D
investigations
into
judges,
absent
formal
JC&D
complaints
—
which
could
result
in
public
or
private
reprimand,
sanction,
or
even
impeachment
—
they
rarely
launch
such
investigations,
and
such
investigations
rarely
lead
to
discipline.
This
court
apparently
opted
not
to
even
try.
These
practices
skew
the
data
regarding
judicial
misconduct,
allowing
the
AO
to
insist,
mistakenly,
that
harassment
is
rare.
In
effect,
the
system
protects
its
own
at
the
expense
of
vulnerable
clerks.
And
while
the
judiciary
insists
it
has
made
progress,
the
experiences
of
the
clerks
involved
in
the
Tanabe
and
Kindred
matters
raise
real
doubts
that
such
reforms
have
true
force.
Judges
are
basically
immunized
against
accountability
for
misconduct.
Even
after
they
resign,
they
can
retaliate
against
clerks
who
they
believe
complained.
In
light
of
the
ongoing
threats
posed
by
judges
even
after
they
resign,
a
clerk
contacted
the
Eighth
Circuit
Director
of
Workplace
Relations
(DWR),
known
to
both
dissuade
clerks
from
filing
complaints
and
to
offer
misleading
advice
to
clerks,
to
express
interest
in
also
filing
a
JC&D
complaint.
The
DWR
dissuaded
the
clerk
from
filing
in
writing,
stating
that
she
did
not
think
they
needed
to
file
a
JC&D
complaint
because
their
EDR
complaint
was
sufficient.
Yet
Tanabe’s
clerk,
undeterred,
filed
anyway.
But,
when
the
clerk
contacted
the
Eighth
Circuit
Clerk
of
Court’s
Office
to
confirm
receipt,
someone
in
the
office
outrageously
convinced
the
law
clerk
to
withdraw
the
complaint.
The
reason:
the
complaint
would
probably
be
dismissed
because
the
judge
is
resigning
anyway.
To
be
clear,
both
the
DWR’s
and
Clerk
of
Court’s
Office’s
actions
appear
to
be
obstruction
of
justice.
Court
employees
should
not
weigh
in
on
the
sufficiency
of
a
judicial
misconduct
complaint:
that’s
for
the
chief
judge
to
decide.
These
appalling
actions
by
federal
judiciary
employees
offend
their
public
framing
of
the
courts
as
committed
to
the
fair
and
impartial
administration
of
justice.
Perhaps
it’s
counterintuitive
to
some
lawyers
and
law
professors
still
claiming
that
the
courts
will
save
us,
that
judges
and
their
defenders
will
hold
themselves
to
the
lowest
ethical
standards,
not
the
highest.
But,
as
someone
who
routinely
confronts
the
irony
between
the
judiciary’s
public
messaging
and
private
conduct,
I
was
outraged
but
not
surprised
to
learn
of
this
latest
attempt
to
gaslight
a
vulnerable
law
clerk.
These
actions
would
be
reprehensible
if
they
were
a
one-off.
But
this
is
just
another
data
point
in
an
ongoing
pattern
of
misconduct.
Clerks
routinely
tell
me
they
are
dissuaded
by
DWRs,
circuit
executives,
and
others
in
the
judiciary
from
filing
both
EDR
and
JC&D
Act
complaints.
Some
clerks
were
even
pressured
to
withdraw
their
complaints
—
with
their
jobs
threatened.
In
light
of
these
revelations,
we
should
view
the
federal
judiciary’s
2024
JC&D
complaint
data
(just
two
complaints
by
clerks
and
permanent
court
staff),
and
EDR
report
(only
seven
complaints
by
clerks
over
a
two-year
period),
with
heightened
scrutiny
and
deep
skepticism.
This
is
how
the
federal
judiciary
keeps
their
misconduct
data
low
and
misleads
the
public
—
by
dissuading
clerks
from
filing
complaints
and
pressuring
them
to
withdraw
them
once
filed;
and
by
offering
misleading
advice
to
clerks
about
their
likelihood
of
success
in
the
complaint
process
—
all
while
hanging
threats
of
firings
over
clerks’
heads,
if
they
complain.
They
utilize
all
avenues
to
chill
complaints
in
order
to
immunize
judges
from
scrutiny.
Contrary
to
the
AO
director’s
dubious
claims
that
these
suspiciously
low
numbers
suggest
the
judiciary
does
not
have
a
misconduct
problem,
in
fact,
their
low
numbers
are
likely
due
to
the
AO’s
own
obstruction
and
misconduct,
presumably
to
mislead
the
public,
lawyers,
and
lawmakers,
and
to
misleadingly
deflate
their
publicly
reported
data.
Because,
were
the
AO
to
collect
and
publicly
report
data
on
the
actual
occurrence
of
judicial
misconduct
(which
they
possess,
in
an
internal
workplace
survey
whose
results
they
refuse
to
release
publicly),
lawmakers
might
insist
on
outside
oversight
and
haul
some
AO
administrators
before
Congress
to
answer
tough
questions.
Tanabe’s
resignation
amid
allegations
of
misconduct
is
the
biggest
judiciary
scandal
since
Kindred’s
resignation.
Two
judges
resigning
amid
misconduct
allegations
within
12
months
is
significant:
judges
rarely
resign
and,
frankly,
most
serve
until
they
die,
long
beyond
their
capacity
to
serve.
Lest
you
think
Tanabe
and
Kindred
are
just
a
few
“bad
apples,”
ask
yourself:
if
Tanabe
were
a
rare
exception,
why
wouldn’t
the
federal
judiciary
take
this
opportunity
to
signal
their
newfound
commitment
to
transparency
and
accountability
by
disciplining
her,
thereby
sending
a
message
to
the
legal
profession
that
they
take
these
issues
seriously
by
swiftly
disciplining
their
own?
They
could
then
point
to
Tanabe’s
and
Kindred’s
discipline
as
evidence
that
no
outside
congressional
oversight
is
necessary
because
their
internal
self-governance
mechanisms
work
just
fine.
I
suspect
the
Eighth
Circuit
is
trying
to
keep
this
quiet
because
they
know
—
or
at
least
suspect
but
would
prefer
not
to
acknowledge
—
that
they
have
a
more
widespread
problem.
The
Tanabe
situation
is
not
even
an
isolated
incident
in
this
court.
Rather,
it’s
a
pattern
of
misconduct.
Federal
judge
Wilhelmina
Wright
was
able
to
retire
quietly,
under
similar
circumstances
and
amid
allegations
of
misconduct,
just
one
year
earlier.
This
is
just
the
tip
of
the
iceberg
in
the
federal
courts.
If
every
mistreated
clerk
I’ve
spoken
with
filed
a
complaint,
and
if
the
judiciary
swiftly
and
robustly
investigated
each
one,
they
wouldn’t
have
time
to
do
the
courts’
important
work
because
they’d
spend
all
their
time
reviewing
misconduct
complaints!
Sadly,
the
judiciary
benefits
from
clerks’
silence
and
fear.
Tanabe
is
scheduled
to
resign
on
March
31,
2025.
She
is
still
on
the
bench.
The
Eighth
Circuit
should
reject
Tanabe’s
resignation
and
open
a
JC&D
investigation
into
her
misconduct.
The
judiciary
could
take
disciplinary
action
against
Tanabe
right
now,
and
they
should.
This
would
send
a
much-needed
message:
wrongdoing
on
the
bench
will
not
be
swept
under
the
rug,
and
the
judiciary’s
professed
commitment
to
ethical
standards
is
more
than
hollow
talk.
But
at
the
moment,
it
appears
the
resignation
will
be
accepted,
and
the
matter
closed.
It
is
important
to
remember,
too,
that
Congress
has
the
power
to
impose
reforms.
Legislation
like
the
Judiciary
Accountability
Act
(JAA)
would
extend
federal
antidiscrimination
protections
to
more
than
30,000
exempt
federal
judiciary
employees
and
revise
the
complaint
process
to
allow
investigations
to
continue
even
after
judges
step
down.
Congress
extended
these
protections
to
itself
and
to
the
executive
branch
back
in
1995:
there
is
no
reason
judges
should
stand
alone
in
an
ethical
blind
spot.
Yet
lawmakers
have
not
seized
the
opportunity
to
investigate
this
particular
case,
to
hold
hearings,
or
to
demand
improvements
from
the
judiciary.
This
is
a
rare
bipartisan
opportunity
to
solve
a
historically
intractable
issue.
Yet
I’ve
been
disheartened,
after
raising
this
with
several
congressional
offices,
to
see
the
issue
of
judicial
accountability
fall
on
deaf
ears.
The
more
than
30,000
judiciary
employees
who
support
the
daily
functioning
of
our
courts
nationwide
—
yet
who
lack
basic
workplace
protections
—
deserve
better.
Members
of
Congress
could
send
a
letter
to
the
AO
and
Eighth
Circuit
urging
them
to
reject
Tanabe’s
resignation
and
discipline
her.
The
House
and
Senate
Judiciary
Committees
could
reintroduce
—
and
Senate
Judiciary
Chairman
Chuck
Grassley,
whose
Eighth
Circuit
is
the
circuit
at
issue
here
—
could
hold
a
hearing
on
the
JAA.
Congress
could,
at
a
minimum,
introduce
legislation
to
amend
the
JC&D
Act,
so
investigations
into
judges
like
Tanabe
could
continue,
even
after
they
step
down
to
evade
accountability.
The
answers
are
there;
the
motivation
is
lacking.
Judges
hold
unique
power
in
our
system
of
government:
they
rule
on
matters
of
profound
national
importance,
including
cases
involving
workplace
harassment,
even
as
they
themselves
remain
exempt
from
the
rules
that
most
workplaces
must
follow.
Until
that
imbalance
is
addressed,
clerks
will
continue
to
suffer
in
silence,
fearful
of
retaliation
from
life-tenured
officials
whose
influence
does
not
end
when
they
retire.
Congress
should
act,
at
minimum,
to
require
honest
workplace
surveys
and
annual
data
disclosures
as
a
condition
of
the
judiciary’s
appropriations.
The
military
conducts
climate
surveys:
why
shouldn’t
the
judiciary?
Greater
transparency
would
help
the
public
understand
the
true
scope
of
the
problem
—
and
would
help
protect
the
many
capable,
fair-minded
judges
who
do
treat
their
clerks
respectfully
and
want
no
part
of
any
cover-up.
Absent
that
oversight,
recent
events
in
Minnesota
may
fade
from
the
public
consciousness
as
the
judge
departs,
leaving
the
root
problem
intact.
The
Legal
Accountability
Project
(LAP)
hears
from
clerks
regularly
—
often
years
after
their
clerkships
have
ended
—
who
still
fear
retribution
for
speaking
up.
Change
will
not
come
until
the
judiciary’s
internal
norms
favor
meaningful
accountability
over
quiet
resignation.
And
that
requires
Congress
to
hold
the
judiciary’s
feet
to
the
fire
and
exercise
the
power
entrusted
to
it.
Every
day,
in
courthouses
nationwide,
judges
harass
their
clerks
with
impunity
and
get
away
with
egregious
misconduct.
Clerks
suffer
in
silence:
years,
even
decades
after
their
clerkships,
they
live
in
fear
of
retaliation
or
retribution.
I
hear
about
this
often
at
LAP,
where
we’ve
basically
become
a
clearinghouse
for
clerks
who
never
previously
would
have
confided
in
anyone,
to
share
their
negative
experiences
with
me.
It’s
time
for
every
lawmaker
and
lawyer,
and
frankly,
some
of
the
judges
who
support
LAP
behind
the
scenes,
to
call
for
change.
As
the
events
involving
Kindred
and
Tanabe
demonstrate,
misconduct
on
the
bench
can
arise
at
any
time.
It
is
a
serious
matter
whenever
it
occurs,
and
the
ramifications
can
echo
across
a
clerk’s
entire
career.
With
no
sign
of
the
judiciary
policing
itself,
and
with
no
shortage
of
workable
reforms
ready
to
go,
it
is
time
for
Congress
to
step
forward
and
protect
those
who
serve
in
the
Third
Branch.
Silence
is
not
neutrality
—
it
is
complicity.
Workplace
harassment
is
always
wrong.
But
it
is
particularly
reprehensible
when
committed
by
life-tenured
federal
judges
—
some
of
the
most
powerful
members
of
the
federal
government
—
who
abuse
their
power,
ruling
on
issues
of
national
significance,
including
sexual
harassment
cases,
while
they
themselves
are
not
subject
to
the
laws
they
interpret.
It’s
despicable
for
the
federal
judiciary
to
continue
claiming
they
promote
an
“exemplary”
workplace,
while
routinely
shielding
abusive
judges
from
scrutiny
and
accountability.
Right
now,
throughout
our
justice
system,
there
is
no
justice
for
judiciary
employees.
But
Congress
can
—
and
must
—
change
that.
Because
for
every
Tanabe
who
resigns
once
in
a
blue
moon,
dozens
do
not.
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.