The #MeToo movement reached the federal judiciary last month. Alex Kozinski, a longtime judge on the Ninth Circuit Court of Appeals in Pasadena, Calif., abruptly resigned after some 15 former law clerks and staffers said he had engaged in sexual misconduct. With more 3,000 federal judges spread among 13 circuit courts, there will almost certainly be more cases like Judge Kozinski’s.
So how should the notoriously secretive and clubby branch of government respond?
Chief Justice John G. Roberts Jr. took a long overdue step toward answering that question on Sunday when he announced that a working group would assess whether the judiciary’s disciplinary procedures are capable of addressing sexual harassment complaints and taking corrective action. The governing statute, passed by Congress in 1980, holds federal judges responsible for disciplining one another, save for the nine Supreme Court justices who are immune from any oversight.
But this process is shrouded in secrecy, with embarrassing allegations swept under the rug and sanctions that are inadequate to the offense. If the judiciary is going to better police itself, it must overcome its historical impulse to shield bad actors from consequences they would not hesitate to mete out to people who don’t wear black robes.
Federal judges have lifetime tenure under Article III of the Constitution. So removing a judge requires impeachment by the House of Representatives and conviction by the Senate after a trial. It’s no surprise that Congress has meted out this punishment only eight times in our country’s history, and never for sexual misconduct.
For this reason, the only realistic way to hold judges to account for the kind of allegations that have torpedoed the careers of power brokers in other professions in the post-Weinstein era is through an internal process that allows judges to punish their colleagues with lesser sanctions like suspension, public rebuke or a recommendation that the offender step aside.
The problem is this is wholly inadequate. A 2006 report by a committee of judges found that federal judges bungle high-profile investigations of bad behavior by other judges nearly 30 percent of the time, an error rate it deemed “far too high.” An employee who is called to police a fellow employee is likely to cut them slack and try to protect the reputation of their workplace.
Consider the case of Samuel B. Kent, a Federal District Court judge in Galveston, Tex., which is part of the Fifth Circuit.
After a female employee, Cathy McBroom, filed a complaint against Judge Kent in 2007, a panel of judges from his circuit responded with a terse two-page public order characterizing the allegations as mere “alleged sexual harassment” and directing Judge Kent to take four-month leave of absence. The order made reference to a confidential report produced by a special committee but said nothing about the report’s contents.
As it turned out, Ms. McBroom’s allegations were far more serious than “alleged sexual harassment.” In her account, Judge Kent pushed up her shirt and bra, put his mouth on her bare breast, forced her head toward his crotch and used obscene language to tell her sexual things he wanted to do to her.
After the media exposed the sexual assault allegations, other women came forward with stories of harassment and abuse dating back to 2002. Fifteen months later, federal prosecutors indicted Judge Kent for aggravated sexual abuse, abusive sexual contact and lying to the disciplinary committee about his actions.
It was only after Judge Kent was charged that the disciplinary panel agreed to conduct a further investigation, claiming to be “unaware” of how serious the misconduct was. In the end, there was no need: Judge Kent resigned after pleading guilty to obstructing justice under threat of impeachment.
This ordeal makes it clear that the chief justice’s working group must overhaul the process to make it more robust and transparent. This is no easy task. The law mandates that all evidence, testimony and hearings relating to misconduct investigations be kept secret. But judges can — and should — publish detailed, well-reasoned opinions about the outcome of those cases to inform the public and maintain confidence in the integrity of the proceedings.
Also crucial to ensuring fairness is giving both sides the same procedural rights. The statute allows for equal treatment, but as enforced it is biased against the person who brings the complaint. An accused judge has the right to be present at a disciplinary hearing, to present testimony and witnesses, and to have a lawyer in any disciplinary case that is subject to investigation. The working group should provide the same rights to the person accusing the judge.
Sexual misconduct cases should also be automatically transferred from the circuit where they arose to a court in a different region of the country so that judges won’t have to pass judgment on a close colleague whom they see on a regular basis. (Before he resigned, Judge Kozinski was set to be judged by his colleagues on the Second Circuit, but only because Chief Justice Roberts had ordered that transfer.)
Finally, the working group should hold the nine Supreme Court justices accountable under the same standards. The fact that Congress exempted them when it passed the disciplinary law in 1980 is no excuse for refusing to play by the same rules as everyone else.
Not everyone will go quietly like Judge Kozinski. And the Kent case has taught us that it is grossly unfair to the accusers for judges to convene in secret, shut one side out and issue written orders designed to obscure more than they inform. This coddling of undeserving colleagues undermines public confidence in the judiciary and makes hypocrites of the judges themselves, whose job is to ensure equal justice under the law.
Lara Bazelon is an associate professor at the University of San Francisco School of Law. Her book about wrongful convictions and restorative justice is to be published this year.