There has been much digital ink spilled lately about judicial ethics. Most of the focus has been on the highest court in the land. But some scrutiny for those federal courts below the apex is deserved as well.

In July 2024, Judge Joshua Kindred, serving at the time in Alaska on the Ninth Circuit Court of Appeals, resigned in shame.[1] The Judicial Council of the Ninth Circuit conducted a thorough investigation via a Special Committee appointed by Chief Circuit Judge Mary H. Murguia.[2] The Committee uncovered a multitude of ethical lapses by Judge Kindred. The Judicial Council’s report included, among other things, a text where he told law clerks, “who gives a f*** about ethics, we need to get you paid.”[3] Furthermore, the report cited instances of him contemplating assault on Supreme Court justices and his illicit substance abuse within chambers.[4]

Worst of all, however, the Council found that:

(1) Judge Kindred created a hostile work environment for his law clerks by engaging in unwanted, offensive, and abusive conduct, and treating the law clerks in a demonstrably egregious and hostile manner.
(2) Judge Kindred engaged in misconduct by having an inappropriately sexualized relationship with one of his law clerks during her clerkship and shortly after her clerkship while she practiced as an Assistant United States Attorney in the District of Alaska.[5]

Stories of harassment in the federal judiciary persist, though most often spoken only privately behind closed doors. Even in the case of Kindred, NPR noted in its coverage that:

In fact, it appears the initial tip may have come to the chief judge from someone other than one of Kindred’s law clerks. The report said the clerks “suffered in silence” and expressed deep reluctance to cooperate with investigators. It’s not clear whether the judge continued to supervise his clerks during the lengthy investigation, or whether the judiciary made any moves to help them.[6]

In 2017, the federal judiciary was rocked by a different resignation, that of Judge Alex Kozinski, following his own sexual harassment allegations.[7]

Whispers of other judicial misconduct stories also percolate. Yet few, if any, clerks come forward. Perhaps this is due to the lack of legal protections law clerks and other workers in the federal judiciary face. The federal judiciary is exempt from Title VII of the Civil Rights Act of 1964, the main piece of federal legislation that protects employees against discrimination based on sex, race, color, religion, or national origin.[8] The other two branches of the federal government are not immune to workplace protections—yet the judiciary has much fewer.[9]

Instead, employees of the federal judiciary facing a hostile work environment must resort to the institution’s internal dispute resolution process.[10] This is done through the Administrative Office of the U.S. Courts, an internal body of the judiciary itself.[11] This process is known as EDR, or Employee Dispute Resolution. But EDR is “stacked” against employees—even in “textbook sexual harassment” cases, employees are instead advised to find another job or even call in sick to protect themselves.[12]

Clerks and other employees must navigate the maze of the EDR process. Unlike in a Title VII complaint, the burden to assert and enforce rights is upon the complainant.[13] After the clerk files a complaint, a judge in the courthouse where the harassment is taking place is assigned.[14] The presiding judge reviews it and then has full control over whether to allow the process to proceed or stop then and there. This judge, who works with the accused daily and is likely close friends with them, has sole control over whether to order any discovery, contact witnesses, or even hold a hearing. This seems facially suspect as far as any notion of due process is concerned. And indeed, criticism is both warranted and easily found: “…fellow judges are notoriously unwilling to discipline their colleagues. Employment attorneys who have represented clerks in EDR characterize it as a ‘kangaroo court’ that ‘lacks even the appearance of impartiality.’”[15] Furthermore, should a complainant manage to succeed through this system, they are completely unable to recover any monetary remedies, unlike under Title VII.

Because this process is inadequate, harassed clerks are often given an alternative, even less stellar option. They instead are directed to a Director of Workplace Relations for advice. Reports say that these officials often dissuade clerks from filing EDR complaints—and no wonder, considering their weaknesses.[16]

So here and now, what changes can be made to improve things? One, Congress can pass the proposed Judiciary Accountability Act. And two, prospective clerks can sign up for the Legal Accountability Project’s Clerkship Database and proactively defend themselves by being better informed about judges they apply to work for.

The Judiciary Accountability Act

In September of 2024, Rep. Hank Johnson along with Rep. Jerrold Nadler, Rep. Norma Torres, Sen. Mazie Hirono, and Sen. Lisa Murkowski reintroduced the Judiciary Accountability Act of 2024 (JAA).[17] According to Johnson’s accompanying press release, the JAA would:

• Give judicial branch employees the same anti-discrimination rights and remedies private sector and government employees have had for decades. . . .

• Protect judicial branch employees from retaliation against them by providing them with the right to sue for relief if they are retaliated against. Unlike most other federal employees, judicial branch employees currently have no statutory protection against retaliation. At a House Judiciary Committee hearing in 2020, multiple witnesses testified that they and others were afraid to come forward about the sexual harassment they suffered or witnessed.

• Establish a comprehensive workplace misconduct prevention program overseen by an improved and expanded Office of Judicial Integrity. The Office’s Board of Directors would include members experienced in investigating and enforcing civil rights laws against workplace discrimination, as well as experience assisting victims of discrimination, retaliation, sexual harassment, and sexual assault. The Office would administer a nationwide, confidential reporting system and a comprehensive training program addressing workplace behavior and bystander intervention, among other duties.

• Establish an Office of Employee Advocacy to assist judicial branch employees in matters related to workplace discrimination and harassment. The Office of Employee Advocacy would advise covered judicial employees about their rights and the resources available to them, provide legal assistance where appropriate, and operate an anonymous reporting hotline for covered judicial employees.

• Require regular assessments of workplace culture to determine the effectiveness of judicial branch policies designed to prevent and remedy harassment and discrimination.

• Make clear that discrimination and retaliation constitute judicial misconduct and ensure that the judicial misconduct laws apply to all federal judges, regardless of whether they subsequently resign, retire, or pass away.[18]

Admittedly, this reintroduction occurred during the previous Congress. And with current headwinds against anything that resembles what is known as DEI, it may be an even steeper uphill battle to get the JAA passed in the new Congress we have now. It remains to be seen if the JAA will be introduced a third time.

The Legal Accountability Project’s Database

Ben Franklin said, an ounce of prevention is worth a pound of cure. While that aphorism is not offered in any way to victim blame those who have already suffered, it does point to another tool available now to current law students and perspective clerks, to help them make informed career decisions ahead of time and avoid ever having to face the awful choices that come to victims in the wake of harassment.

This tool is the Clerkship Database of the Legal Accountability Project.[19] This database consists of surveys filled out by former clerks about their judges, on an anonymous and confidential basis. This Glassdoor for judges is reliable because of this anonymity, strictly maintained by the organization, assuring participants against retaliation. Potential clerks can sign up and gain access to this information, hopefully learning about those judges who create unhelpful work environments ahead of time, and thus avoid them.

According to the Project’s FAQ page,

The Clerkships Database is populated with more than 1,450 post-clerkship survey responses about more than 1,000 judges and includes the following information:

• Judge’s name, state, court, law school alma mater, gender, race, and appointing president or governor (if applicable);

• Clerkship interview information;

• Clerkship experience information, including workplace environment, feedback provided, perspective on tasks, and work/life balance during the clerkship; and

• Ratings of the overall clerkship experience and each judge as a manager (positive, neutral, or negative).[20]

Armed with this transparent knowledge, prospective clerks can make informed career decisions. Admittedly, the database is not free. To gain access, prospective clerks can either check to see if their law school subscribes as an organization or pay a $40 annual fee for an individual subscription.[21]

The Legal Accountability Project’s database is a new, essential legal tool for law students and prospective clerks in order to make informed career decisions. Those seeking such positions would be well advised to employ it during their job search.

 

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[1]  Carrie Johnson, Alaska federal judge resigns after investigators say he created a hostile workplace, N.P.R. (July 9, 2024), https://www.npr.org/2024/07/09/g-s1-8991/joshua-kindred-judge.

[2]  Id.

[3]  Id.

[4]  Id.

[5]  In Re Complaint of Judicial Misconduct, No. 22-90121 (9th Cir. 2024), https://cdn.ca9.uscourts.gov/datastore/ce9/2024/22-90121%20News%20Release%20&%20Order%20and%20Certification.pdf.

[6]  Johnson, supra note 1.

[7]  Vanessa Romo, Federal Judge Kozinski Retires Following Sexual Harassment Allegations, N.P.R., https://www.npr.org/sections/thetwo-way/2017/12/18/571677955/federal-judge-retires-in-the-wake-of-sexual-harassment-allegations.

[8]  Aliza Shatzman, Judicial Branch Employees Have No Rights At Work. The Judiciary Accountability Act Could Change That, Balls and Strikes, https://ballsandstrikes.org/ethics-accountability/judicial-accountability-act-caryn-strickland-north-carolina/; see also Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–2000e-17 (as amended).

[9]  Shatzman, supra note 8.

[10]  Id.

[11]  Id.

[12]  Id.

[13]  Id.

[14]  Id.

[15]  Id.

[16]  Id.

[17]  Press Release, Rep. Hank Johnson, Congressman Johnson Re-Introduces Bipartisan, Bicameral Legislation to Hold Judiciary Accountable To Its Employees (Sept. 25, 2024), https://hankjohnson.house.gov/media-center/press-releases/congressman-johnson-re-introduces-bipartisan-bicameral-legislation-hold.

[18]  Id.; see also H.R. ___, 118th Cong. (2024), https://hankjohnson.house.gov/sites/evo-subsites/hankjohnson.house.gov/files/evo-media-document/H.Johnson_jaa_xml.pdf (text of the bill).

[19]  The Legal Accountability Project, https://www.legalaccountabilityproject.org/ (last visited Feb. 12, 2025); Login, https://survey.legalaccountabilityproject.org/ (last visited Feb. 12, 20205) (registration landing page for access to the database).

[20]  Clerkships Database FAQ, https://www.legalaccountabilityproject.org/clerkships-database-faq (last visited Feb. 12, 2025).

[21]  Id.