Ineffectual Judicial Response To #MeToo Will Continue

I’m here at the National Association for Law Placement (NALP) annual conference in San Diego. For the uniniatied, NALP is the gathering where all the legal recruiters and law school career services people meet and discuss the future of getting people jobs.

Since the #MeToo era became a thing, I’ve looked at these people as the first line of defense for law students trying to combat workplace sexual harassment. It’s hard to explain how powerless a second-year law student is, should their employer decide to turn their summer internship into an extended game of grab-ass. Career services back at the law school is one of the only places you can turn when you still need a job but also want to be treated with decency and respect.

At least there are a lot of law firms. Law clerks, people spending a year working for Article III judges, are arguably even more powerless. A judge is the king or queen of his or her chambers, and if they decide to mistreat you, there’s almost nothing you can do. You can’t easily “lateral” to another clerkship, mid-year. You can’t get your life-tenured judge “fired.” Your options are to basically take the abuse, in whatever form, for a year, or quit and risk blowing up your career before it really starts.

Career services aren’t in a great position to help their law clerks, after they start their clerkship. But here at NALP, Ninth Circuit Judge Margaret McKeown was speaking on panel called “#MeToo in the Courthouse.” McKeown can help. She’s part of the “workgroup” Chief Justice John Roberts convened to address sexual harassment in the judiciary.

I’ve been critical of the workgroup in the past. Roberts thought it up in response to the Alex Kozinski scandal, and one way you can tell that the group as been ineffective at rooting out sexual misconduct in the judiciary is that Alex Kozinski is still the only federal judge who has been drummed off the bench for inappropriate behavior in the #MeToo era. You’d be a damn fool to think that Kozinski is the only Article III judge with a #MeToo problem. You’d have to be so stupid to think that I’m going to go in and assume nobody is stupid enough to think that.

Arguably McKeown’s group is supposed to be rooting these bad judges out and putting together polices so that these people cannot continue to abuse their clerks. But after listening to her talk, it’s clear that the judiciary is going to do functionally nothing to police itself in any real way. McKeown got through her whole talk without once using the word “accountability,” nor did she propose anything that could be mistaken for accountability.

Instead, all the working group has are various theories intended to make reporting the behavior easier. She talked about how the Ninth Circuit has “revised” its confidentiality policy, making it clear that while judge’s chambers are still sacrosanct, you can pierce the veil to report workplace harassment. She talked about new “informal” reporting options, for clerks who are arguably being harassed but don’t want to make a literal federal case about it. And, of course, more “training. Not just for judges — McKeown noted that we need to come up with a better word than “training” because judges don’t like to be told they need “training,” as if we’re supposed to give a damn how some lecherous old farts react when told they can’t treat their clerks like a personal massager anymore — but also for the law clerks. Yes, the working group on judicial sexual harassment has decided that law students need more training about how to indentify their own abuse and which feckless governing body they should report it to.

The broad takeaway from McKeown’s talk was to put the onus of identifying, reporting, and combating sexual harassment on the law clerk, who just happens to be the most powerless cog in the whole system. It’s like if I put my six-year-old in charge of lawn maintenance, because he spends the most time outside.

At one point, McKeown addressed the law school career services people directly. She said that she knew some law schools kept “a book” on judges, and advised their students not to clerk for “bad” ones. She encouraged law schools to share that information because “we need to know.”

What a total abdication of responsibility. First of all, to whom should such books be sent to? McKeown? Chief Judge Sidney Thomas? Chief Justice John Roberts? WHO? Who actually even wants this information, and what are they going to do with it besides bury it? Which school wants to risk being blackballed by the Ninth Circuit for telling it its own dirty laundry?

And if such actors really wanted to know who the bad judges were, they could. I find the argument that everybody knows who the bad actors are, except the people empowered to do something about them, has always been bullshit. If McKeown doesn’t know, it’s because she doesn’t want to know. And because “knowing” is not the same as “willing to take appropriate action to defrock and shame malefactors.”

The judicial working group has no PLAN to stop judges from harassing or abusing their law clerks. They don’t even WANT to have a plan to hold judges accountable; they want the problem to go away on its own because judges will independently realize its in their best interests to stop being assholes.

McKeown closed by saying it was a “long-term process” to “change the culture” of chambers. But her talk illustrated that the real process hasn’t even started yet. All the working group seems to be doing is asking law clerks to do the committee’s work for them.

McKeown left without taking questions. Which felt freaking typical given the content of the working group’s efforts.

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Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at [email protected]. He will resist.