In the wake of the allegations of years of sexual misconduct by Judge Alex Kozinski (and, by extension, years of failure on the part of his colleagues), Chief Justice Roberts decided to take swift action by convening the Federal Judiciary Workplace Conduct Working Group to put together a report. To do so he charged… well, mostly the exact same group of people who apparently turned blind eyes to decades of misconduct before.
As they always say, if you’re trying to catch a fox, you should always put a fox in charge of the henhouse!
This uninspiring leadership decision, coupled with a good but at times lackluster report provides the context for the Law Clerks For Workplace Accountability, a group of current and former law clerks who read the report and have some thoughts as representatives of the group that this whole process is ostensibly supposed to protect. They’ve drafted a letter with a bunch of entirely reasonable questions and criticisms of the Report.
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And it’s this letter that brings us to Judge Richard Kopf’s rough weekend on the Twitter machines. The federal judge famous for penning Hercules and the Umpire, a blog that offered humanizing and often humorous judicial transparency, took to Twitter Friday night to express his views on the mounting critique of the Report. His thoughts were… not great.
https://twitter.com/JudgeKopf/status/1020450414104281088
Not entirely sure why the fact that every member of this group is a woman matters much except to poison the well with some old-timey misogyny. I mean, “women employed by powerful men have strong thoughts on sexual harassment”? No kidding. It would be weird if this group weren’t mostly if not entirely female.
After fielding angry Twitter replies all weekend, Judge Kopf is now challenging the Law Clerks For Workplace Accountability to allow him to post a full response to their critique on the Law Clerks website because apparently it’s incumbent on people making serious, detailed policy arguments to indulge Twitter trolls now:
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https://twitter.com/JudgeKopf/status/1021171761797378050
And, as one might expect, people generally don’t really give a f**k what a judge who has proudly described himself as “a dirty old man” has to think about the propriety of women chiming in on a sexual harassment debate.
But for the laughs, let’s actually breakdown the Law Clerks For Workplace Accountability letter to see if there’s a single thing in there worth complaining about.
First. The Working Group asked the Judicial Conference to revise the Judiciary’s Code of Judicial Conduct to reflect that judges have an obligation to report misconduct…. We believe that the Working Group’s proposal to revise the Code of Conduct would be stronger if the Code specified what kinds of conduct that judges have an obligation to report and how judges should report such conduct.
What a crazy SJW request! Asking that an agreed upon edit not be wildly vague? Preposterous!
Second. The Judicial Conference should expand the scope of all relevant misconduct policies to include externs and other court staff that are not necessarily covered under many current EDR policies.
Make sure everyone in the courthouse is covered. Frankly, it’s embarrassing that the gathering of federal judges and judiciary executives didn’t come up with this themselves. That should be the real scandal here and not the audacity of a group of women to have opinions about harassment.
Third. We agree with the Working Group’s recommendation that former employees should have ongoing access to guidance on the scope of their obligation to protect chambers’ confidentiality…. The Report recommends extending the Model EDR plan’s reporting time limit to 180 days from the date of the alleged violation; however, we would recommend that the time limit be extended to at least one year following the violation, i.e., the term of a typical clerkship.
In Judge Kopf’s follow-up Tweets he complains of an inquisition-like effort to go after judges for past acts. Putting aside whether or not federal judges — the very faces of the law in America — should be shielded from misconduct by the passage of time, this recommendation asks for the length of a clerkship before a clerk has to report.
Perhaps the crux of Kopf’s complaint is the suggestion that the Working Group take a retrospective look at misconduct. Though the Law Clerks don’t suggest undertaking this effort with an eye toward punishing anyone, but as a source of valuable information about the nature and pattern of harassment to assist and inform forward-looking measures. That’s about the closest thing to “bold” in this letter and it’s still reasonable.
First. The Report recommends that “proportionate corrective action” be taken where misconduct has occurred without further defining that term. The Report does not clarify what processes and remedies are available to a complainant, especially when the accused employee is a sitting federal judge. The Report also does not explain who will conduct investigations or how these investigations will proceed. We recommend that the Judicial Conference adopt a clear definition of harassment, provide non-exhaustive examples of what constitutes harassment, identify the remedies available to victims of harassment, and explain in detail what the investigation process entails.
It’s stunning that a federal judge would think “vague edicts” are better than specific, predictable language. So much for textualism!
The letter goes on to ask for clarification on whether the Working Group’s proposed transfer program would operate from the date of complaint or only after the amorphous adjudication concludes and for the new Office of Judicial Integrity to coordinate with law schools and a whole bunch of small, targeted, common sense clarifications. For instance, the Working Group doesn’t clarify which — if any — of its recommendations would be mandatory and which would be left to the discretion of the circuits. Come on.
But the stupidest possible critique of the Law Clerks focuses on their request to have representation in future work addressing harassment in the judiciary. How dare these young lawyers be so presumptuous? Why do they think they’d be better at combatting harassment than the federal judges who’ve accumulated years of experience aiding and abetting it? Blah blah blah millennials.
Um, just read the Working Group Report and then read this letter. These clerks have done all the work they need to show they’re more than capable of contributing to and improving the effort.
Judge Kopf is an enlightening read on a lot of issues. This is not one of them. Just take the L on this one and move on Your Honor.
Joe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.