Senators unhappy with judiciary's response to harassment in courthouses

Senators from both parties expressed frustration and concern on Wednesday about the US judiciary's response to sexual...

Posted: Jun 14, 2018 4:18 PM

Senators from both parties expressed frustration and concern on Wednesday about the US judiciary's response to sexual harassment in federal courthouses.

Judiciary Chairman Chuck Grassley complained that judicial officials, who studied the problem for six months after claims of misbehavior against US Appeals Court Judge Alex Kozinski became public, produced only a "vague" report with no assessment of how widespread abuse might be.

Grassley, an Iowa Republican, warned that it might be time for an independent inspector general to oversee misconduct -- a proposal judicial officials have long fought as being unnecessary and a potential violation of the Constitution's separation of powers.

James Duff, director of the Administrative Office of the US Courts, insisted that judges are sufficiently addressing sexual misconduct.

"It's not as prevalent as it is in other workplaces," Duff said.

When Sen. John Kennedy, R-Louisiana, pressed him to be more specific and use a scale of 1 to 10, with 10 being "off the charts" sexual offenses, Duff further hesitated but answered, "By comparison to the other workplaces, it's probably ... maybe ... whatever I say ... it's just a guess, maybe a 3 or 4."

"If we're going to solve this problem," Kennedy warned, "we've got to talk frankly."

The Judiciary Committee hearing offered the first forum for examining the third branch's response to sexual harassment claims and broader misconduct issues since complaints against the California-based Kozinski emerged in December. The Washington Post, which first reported on Kozinski, highlighted an account from a law clerk who said the judge had asked her to look at pornographic images on his office computer.

A CNN special report in January, examining about 5,000 judicial orders arising from misconduct complaints over the past decade, found that courthouse employees and others with potentially valid complaints against judges rarely use the complaint system, or get no relief when they do. Judges overseeing the system seldom find that a claim warrants an investigation or that a judge should be disciplined.

CNN also found that in most cases when judges face serious scrutiny, they retire with full pensions and all disciplinary proceedings end, as happened with Kozinski. His lawyer, Susan Estrich, told CNN "he denied the substance of the charges."

Duff told senators that not a single employee had filed a sexual harassment claim in 2017, either through the formal misconduct system for all complaints against judges or through internal dispute-resolution channels.

He said officials were trying to make employees more aware of ways to report grievances and intended to establish an Office of Judicial Integrity to oversee such concerns.

Sen. Ted Cruz, a Texas Republican who noted that judicial chambers can be secretive enclaves with no supervision, similarly asked about the extent of the problem and whether the judiciary had engaged in any monetary settlements for employees alleging judicial abuse. Duff said he knew of no such settlements.

Sen. Mazie Hirono, a Democrat from Hawaii, suggested that victims would have more confidence in the system if it were more transparent, including with reports about where instances of misconduct occurred and how complaints were handled.

Other witnesses who testified Wednesday joined senators in expressing skepticism about the recent report by a working group established by Chief Justice John Roberts after the Kozinski scandal became public.

"I do not share the working group's conclusion that this (sexual misconduct) is not pervasive in the judiciary," said Jaime Santos, a Washington lawyer and former judicial law clerk who has been studying the problem. "I don't think the judiciary has any idea."

Santos said she had heard from dozens of law clerks and other employees who recounted misbehavior by judges, from speaking of women in derogatory terms to engaging in unwanted groping and kissing. She criticized the working group for not following up on the Kozinski matter.

Sen. Kamala Harris, a California Democrat, referred to the "culture of silence" that can pervade a workplace and expressed concerns about judges asking law clerks to sign confidentiality agreements that dissuade them from going public with misconduct. Duff said he did not know how many judges required law clerks to sign confidentiality agreements.

Jenny Yang, a former commissioner at the US Equal Employment Opportunity Commission now in private practice, suggested the judiciary be more "proactive" in assessing the extent of bad behavior and addressing it. She said an outside review might draw out a more honest assessment from law clerks and other employees.

Grassley noted that Heidi Bond, whose case was featured in the Washington Post story on Kozinski, submitted a letter criticizing the working group's report for not exploring possible signs of abusive behavior.

"Workplace harassment -- both of the sexual variety and of the sort that is abusive to employees without a sexual component -- rarely occurs as an isolated incident," she wrote in the seven-page letter, asserting that "harassment often happens as part of a larger pattern of abusive behavior. Even if the conduct itself is hidden from view, red flags are visible to outside observers." She referred to such factors as a judge's control and isolation of employees and a demand for confidentiality even in non-official business.

"The working group's report does not attempt to identify these red flags or suggest monitoring them," she wrote, "and for that reason, I feel that it is bound to fail in its aim."

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