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Victims of harassment by federal judges often find the judiciary is above the law
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Four years ago, Olivia Warren made a choice that would change her life.
Warren described to Congress how Stephen Reinhardt, a prominent federal appeals court judge who died in 2018, left a drawing of women's body parts at her desk, demeaned her appearance, and questioned her husband's masculinity while she served as his law clerk.
Looking back now, Warren said, she would not recommend others follow her path and speak out about abuse by federal judges. In fact, she said, she advises young lawyers not to pursue elite clerkship opportunities, because she thinks the risks are too great.
"I don't think anything has changed," she said. "I still have not received an apology from the judiciary about what happened to me. I no longer expect one. I'm not holding my breath."
Above the law?
Millions of people who experience harassment on the job enjoy workplace protections, whether they report to private companies, nonprofit groups or even the U.S. Congress. But that's not the case for some 30,000 people who work for the federal judiciary. That branch of government is largely exempt from the civil rights law that protects workers and job applicants from discrimination.
"I think the judiciary sees itself in a lot of ways as above the law," said Gabe Roth, executive director of the watchdog group Fix the Court, a group that advocates for more transparency and accountability in the federal court system. "It sees itself as separate and different."
Jeremy Fogel, who served as a state and federal judge for 37 years, explained why judicial employees have been considered different.
"The history of that distinction is separation of powers and the concerns for judicial independence and worrying that Congress would over-regulate how the judiciary conducts its business," Fogel said.
Fogel, who now runs the Berkeley Judicial Institute, said he does not think Congress necessarily needs to act.
"But I think if you don't legislate something, then the judiciary has to be proactive," he added.
Office monitoring complaints hampered is by staffing
In 2017, Chief Justice John Roberts appointed a working group after #MeToo allegations emerged in the federal courts. He also created the Office of Judicial Integrity to monitor workplace issues and serve as a source for what he called confidential guidance and counseling.
Today, that office has just three employees. Its leader, Michael Henry, came from SafeSport, the nonprofit group formed to help reduce sexual abuse in Olympic sports programs but which has drawn controversy over its actions and effectiveness.
Peter Kaplan, a spokesman for the Administrative Office of the U.S. Courts, declined to identify the other employees at that office, except to say one is an "administrative analyst," and defended the courts' response to #MeToo complaints.
"The Judiciary has long-standing, enforceable policies protecting its employees against discrimination, harassment, and retaliation consistent with federal employment discrimination statutes applicable in the executive and legislative branches," Kaplan said in a written statement.
The judiciary publishes annual reports about complaints against judges. Usually those reports contain no names, just numbers. For the last few years, the number of sexual harassment complaints has vacillated between zero and six. It can take a long time for the court system to say what those judges did, and to tell if any of the complaints has merit.
"Whatever disciplinary measures are happening, ethics training, being temporarily taken off cases...it's almost impossible to find out because...it's very easy for the judiciary to bury it and the public to maybe never even learn about it," said Roth, of Fix the Court.
'A band-aid over a bullet hole'
A rare glimpse into the process emerged last month, when the courts resolved a two-year-old complaint from a law clerk.
An unnamed federal judge agreed to receive counseling and watch training videos after a clerk reported a hostile workplace environment. The clerk was offered the chance to transfer into another job. A subsequent investigation by the judiciary uncovered concerns about the judge being "overly harsh" to other clerks, too.
Aliza Shatzman, who advocates for law clerks, said transferring to a new judge is not an option for some of them, for financial or logistical reasons.
"It's a band-aid over a bullet hole," she said. "That's not solving the problem."
Shatzman said the court system's typical practice, which does not identify judges involved the disciplinary process, could expose more unwitting young lawyers to more abuse.
The system for reporting problems can vary depending on where in the country a judge is based, a tangle of rules and procedures that can be hard even for trained lawyers to navigate.
Shatzman told NPR she's heard of officials around the nation who are designated to receive complaints dissuading people from filing them, because "not enough clerks" are reporting abuse, or because the judge's behavior "doesn't meet the standard for abusive conduct."
Glenn Fine, who served as inspector general at the Justice Department and the Pentagon, said the judiciary needs an independent watchdog, too.
"Self-policing is not working," Fine said. "It is hard for judges and anyone to investigate their colleagues."
The toughest sanction against a federal judge is impeachment. But it's been 14 years since a judge was impeached and convicted for corruption and false statements.
Most discipline issues of the judiciary are handled by the judiciary. It's common for judges to resign while they're under investigation, which generally stops the probe, and allows them to collect retirement benefits.
In 2017, Alex Kozinski abruptly retired from the 9th circuit appeals court, after more than 15 women accused him of sexual harassment. At the time, Kozinski partially apologized for his behavior, noting he "had a broad sense of humor and a candid way of speaking," but that it "grieves me to learn that I caused any of my clerks to feel uncomfortable; this was never my intent."
Kozinski collected his pension and is now practicing as a lawyer in the same courts he once dominated as a judge.
Warren, who complained about a different 9th circuit judge, has shied away from even filing briefs in that court where she once clerked. She said she continues to hear harrowing stories from clerks all over the country, who are too afraid to report judges.
Those judges enjoy lifetime tenure and operate with few limits on their power, while the young lawyers who clerk for them could be blocked from other job opportunities in the legal world after they air concerns. So a judge's word of recommendation, or word of warning, carries enormous weight that extends decades into a lawyer's career.
Since her testimony, Warren said things have gotten worse because of what she calls "window dressing" by the judiciary.
Congressional legislation stalled
Congress has considered legislation, but failed to act so far, to make judges more accountable. Lawmakers are awaiting the results of two reviews of the judiciary's workplace policies and actions due out this summer, including one from the Government Accountability Office.
But there are public hints the judiciary has been less than forthcoming with those independent audits. A House Appropriations report for 2024 noted "the Committee expects the Judiciary and the Federal Judicial Center to provide regular and appropriate access to all necessary information requested by GAO and the National Academy of Public Administration so that their work can be completed in a timely manner."
The Administrative Office spokesman said in the statement that they are "working cooperatively" with the GAO.
Rep. Norma Torres, D-Calif., wrote the courts this month to express urgent concern about how little public data is available about the judiciary's systems to prevent abuse of employees.
"With no process, there is no due process; without strong systems in place to protect the vulnerable, the Judiciary will fail in its duty to protect judges and employees in the workplace," Torres wrote.
Congressional sources told NPR a new push for legislation could come later this year.
NPR Investigative Correspondent Tom Dreisbach contributed to this report.
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