I read the judicial discipline order alone in my office, on the day my Senate-confirmed former supervisor was removed from the D.C. bench. I felt part relief that the former judge could no longer mistreat law clerks like myself, part satisfaction that he had been disciplined for some of his misconduct, and part frustration that the D.C. judicial regulatory body did not recognize the full scope of the former judge’s misbehavior.
I was clerking in the Superior Court of the District of Columbia in the fall of 2019 when the judge called me into his chambers and began to describe what he referred to as my “personality issues.” He told me, “You’re bossy! And I know bossy because my wife is bossy!” On multiple occasions, he said that I made him “uncomfortable” and that he “just felt more comfortable” with my male co-clerk. Often he called me “aggressive” or “nasty” or “a disappointment.” I cannot remember a day during my clerkship when I did not cry on the walk to work, cry in the bathroom, or cry myself to sleep.
Finally, the judge told me he was “ending my clerkship term of appointment” four months early because I “made him uncomfortable” and “lacked respect for” him but he “didn’t want to go into it.” He disapproved of the fact that I did not conform to gender stereotypes about women in the workplace—because I was assertive, confident, and voiced my opinions.
Just over a year after my clerkship abruptly ended, I had started working in the D.C. U.S. Attorney’s Office when I received several heartbreaking calls that altered the course of my legal career. The USAO alerted me that the judge had made negative statements about me during my background investigation. I was told that I “would not be able to obtain a security clearance” and therefore my job offer was being revoked. I was devastated. I had no opportunity to defend myself. The decision was final.
As I explained in my written statement for the record at today’s House Judiciary Committee hearing about protecting judicial branch employees from harassment, judges mistreat their clerks with impunity, and they rarely face accountability. Law clerks seldom file complaints against judges, because they fear retaliation by the judge and reputational harm. Members of the legal community dissuade law clerks from reporting misconduct, especially if the clerk hopes to practice in the circuit where the misbehaving judge works. Unfortunately, this infrequent reporting means that data on complaints against judges represent a small fraction of the judges engaging in misconduct.
In July 2021, I filed a formal complaint against the then-judge with the D.C. Commission on Judicial Disabilities and Tenure, the regulatory body for D.C. judges. I hired attorneys, and I participated in the investigation of my former supervisor—while continuing to job-search in the jurisdiction where he presided. During this challenging time, I was told by at least one attorney that “the right professional decision would have been not to report” the mistreatment I experienced. Several female attorneys mirrored the former judge’s language, blaming me for not being able to make things work during my clerkship and telling me that I had a “personality issue.” One even told me that I must have done something wrong, because the judge “hired me in the first place.”
Even after receiving formal complaints against federal judges under the Judicial Conduct and Disability Act, the judiciary often dismisses them. Complaints are reviewed by the chief judge of the circuit where the misbehaving judge works (the judge’s boss) and, in rare cases, by a special committee of district and circuit judges from the misbehaving judge’s circuit (the judge’s colleagues). Judiciary leadership rarely takes formal disciplinary action, such as a public reprimand or reassigning a judge’s cases. When judiciary leaders issue a disciplinary order, they take great pains to protect judges’ reputations and legacies, often redacting judges’ names and identifying disciplinary orders by case number. Life-tenured federal judges can only be removed by congressional impeachment, which is exceedingly rare.
Federal law clerks have no legal recourse against judges who harass them, because the federal judiciary is excluded from Title VII of the Civil Rights Act of 1964. There are no effective safeguards to prevent workplace mistreatment, nor are there real remedies for victimized clerks.
Following high-profile allegations of misconduct against notoriously misbehaving judges like Judge Alex Kozinski and Judge Stephen Reinhardt, members of Congress proposed the Judiciary Accountability Act of 2021, which would begin to address the lack of workplace protections in the federal judiciary. The JAA would empower judiciary employees (as well as federal public defenders, whose workplaces are similarly exempt from anti-discrimination laws) to sue judges under Title VII. It would also revise the formal judicial complaint process, and it would create both a confidential reporting system and a standardized employee dispute resolution plan. These are urgently needed reforms. The right to sue one’s harasser and the ability to recover monetary damages are crucial. However, fresh-out-of-law-school clerks may not feel empowered to sue their life-tenured supervisors. The judiciary needs to take forceful steps to reduce the incidence of harassment.
Importantly, the JAA would require the judiciary to collect and publish data on judicial misconduct complaints, judiciary workplace culture, and (the lack of) diversity in clerkship hiring—areas that are notoriously shrouded in secrecy. These data collection provisions have not received enough attention. Using data from the confidential reporting system and the workplace culture assessment, the judiciary will finally be able to quantify the scope of judicial misconduct, the first step toward punishing judges who mistreat their clerks. Judiciary leaders continue to bury their heads in the sand, both insisting that harassment in the judicial branch is not a problem and refusing to conduct a workplace culture assessment. Data will combat the dangerous narrative that harassment in the judiciary is just committed by “a few bad apples” and that the judiciary is generally able to self-police.
Additionally, the JAA would require the judiciary to collect and publish annual data about the number of individuals interviewed and hired for clerkship positions, disaggregated by gender, race, and disability. There is very little recent data about clerkship hiring. However, according to the most recent survey data from 2019, white applicants obtained nearly 80 percent of clerkships. Thorough annual numbers will better quantify the scope of the problem.
Collecting and publishing data are just the first steps. Increasing law clerk diversity is important, because incorporating diverse perspectives leads to fairer judicial decision-making. However, as previous congressional testimony, pending legal actions, and “whisper networks” have revealed, judges continue to harass their nonmale, nonwhite clerks. In my conversations with female, nonwhite, and LGBTQ clerks, many have voiced concerns that, absent real discipline for misbehaving judges, simply increasing diversity in the law clerk population will subject the token diverse clerks to increased victimization in judicial chambers. Neither increasing diversity in chambers nor increasing diversity on the bench will solve the problem of harassment in the judiciary. This will be solved by disciplining and removing harassers from the bench.
Judiciary employees deserve the same access to the court system as the litigants who appear before them every day. Furthermore, judges who preside over anti-discrimination cases should be subject to those laws themselves.
Congress should pass the JAA this year. Vulnerable judiciary employees cannot wait another year for basic workplace protections. My experience with harassment in the judiciary is not rare. For every law clerk who speaks out, many more are suffering in silence in courthouses across the country. It is time to send misbehaving judges a message: Workplace misconduct will no longer be tolerated, and judges will be held accountable for their poor behavior.