Sexual Harassment Rocks The Federal Judiciary Again. It’s Time For A Reckoning.
Law clerks are watching. They are increasingly empowered to use their voices and share their experiences.
More than six years after former Ninth Circuit judge Alex Kozinski resigned in scandal, you would think the Ninth Circuit in particular, and the federal judiciary generally, would have implemented guardrails to prevent egregious sexual harassment in federal judicial chambers. In fact, you’d be wrong.
This week, now-former Alaska federal judge Joshua Kindred resigned. After an initial 24-hour period of speculation regarding his abrupt departure, the Ninth Circuit Judicial Council released a robust 30-page disciplinary order, documenting appalling sexual harassment in Kindred’s chambers over a several-year period.
Kindred, who served for just four years, seems to have wasted little time after taking the bench before beginning to harass his clerks. He apparently had “no filter,” discussing his sex life with clerks and sending explicit text messages. He also engaged in a sexualized relationship with one of his clerks.
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Yet it was only in late 2022, based on a tip to Chief Judge Mary Murguia, when the Circuit began investigating Kindred. During the year-long investigation, Kindred lied to the disciplinary committee and missed several deadlines. He resigned amid threat of discipline.
Given the lack of guardrails to prevent abusive conduct in the federal judiciary, it is not surprising that bad behavior persists, unabated, not only in the Ninth Circuit, but in others, too. In fact, a Second Circuit judge was reprimanded in December for creating an “overly harsh” work environment, following an investigation that commenced around the same time as this one.
For the handful of people who’ve responded to The Legal Accountability Project’s transparency and accountability work over the past few years with assertions like, “Bad experiences are rare;” or, “Show us more examples of misconduct;” or, “At least judges don’t engage in sexual harassment, right?,” this Order is for you! It contains both salacious details for voyeuristic onlookers, and salient facts to persuade the handful of skeptics that, in fact, judges do sexually harass law clerks. LAP hears often from current and former clerks that allegations like these may be the tip of the iceberg.
While the Ninth Circuit Judicial Council seems to have taken sexual harassment seriously in this instance, this is not the case for every instance of misconduct in every Circuit. And it should not take such egregious allegations to spur the judiciary to investigate and discipline misbehaving judges. While some justice was served for this judge, Kindred’s clerks cannot sue him for harassment, sexual assault, or retaliation, because the federal judiciary and its 31,000 employees are exempt from Title VII of the Civil Rights Act of 1964. Law clerks have no legal recourse and cannot seek damages for harms done to their careers, reputations, or future earning potential.
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Troublingly, Kindred may have even presided over some Title VII cases as a federal judge while he was harassing his clerks – again, in violation of Title VII, if antidiscrimination laws applied to him. He and other abusive judges are literally above the laws they enforce and interpret.
While Chief Judges are empowered under the Judicial Conduct and Disability (JC&D) Act, the federal judicial complaint process, to initiate investigations in response to information but absent a formal complaint, this inadequate process still relies on judiciary employees sharing information about their powerful superiors’ misconduct. Considering the enormous power disparity between judge and clerk, lack of protection against retaliation, and headwinds against reporting, they rarely do. Clearly, judges should not be tasked with investigating and potentially disciplining their friends and colleagues because it creates, at least, the appearance of a conflict of interest and lack of impartiality in the process.
And, sadly, not every chief judge is enlightened about preventing sexual harassment in the federal judiciary. The decentralized nature of the judiciary – and lack of oversight – creates a lack of accountability. Whether law clerks can access even the limited redress available to them under current judiciary policies should not depend on where they clerk, whether the Chief Judge cares about ensuring safe and respectful workplaces, and which judges serve on the judicial council.
This order is evidence that the judiciary cannot and should not “self-police.” Because the system did not totally work for Kindred’s clerks.
The investigation lasted more than a year, during which time Kindred continued supervising (and harassing) clerks. The Chief Judge is empowered to reassign a judge’s clerks – and cases. Yet there appear to be no meaningful protections extended to Kindred’s clerks to prevent further abuse, nor to prevent retaliation for participating in the investigation.
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And, while the Judicial Council appears to have taken great care with this investigation – interviewing dozens of witnesses, collecting documents, of course extending Kindred his right to be heard – they were able to, since they do not receive many complaints. If every mistreated law clerk filed a complaint, and every complaint received such thorough investigation, federal judges would not be able to execute the courts’ daily work, because they would spend all their time investigating complaints. The system is not sustainable without outside oversight by Congress and neutral civil rights investigators handling judicial misconduct complaints.
Some of the dialogue around the investigation focused on whether clerks “reported” versus participated as witnesses. It’s an important distinction, because the judiciary has touted their “robust” and improved reporting mechanisms. Yet mistreated clerks convey overwhelmingly that they have not and would not use the judiciary’s reporting mechanisms, fearing retaliation by judges and reputational harm in the legal profession, and believing their complaints will not be taken seriously.
So, what are the existing reporting mechanisms? And why are they inadequate?
Each Circuit has a Director of Workplace Relations (DWR), a theoretical point of contact to offer confidential advice to clerks. Yet it is unclear what, if any, formal training DWRs receive in human resources. This is usually where law clerks stop, either because they decide not to move forward or because a DWR dissuades them from filing a complaint, in some instances advising clerks there aren’t enough co-complainants for them to be successful or that their complaint does not rise to the level of actionable abusive conduct. Yet DWRs lack the legal expertise to make these assessments.
A current clerk may file an Employee Dispute Resolution (EDR) complaint to seek reassignment to a different judge for the remainder of the clerkship (the only “redress” available). Yet EDR is a toothless process stacked against clerks that lacks even the appearance of due process or impartiality. And clerks struggle to understand the processes necessary to enforce their rights, let alone to find legal counsel to assist.
A formal complaint may be filed under the JC&D Act to hold the judge accountable. “Accountability” may include a public (or private) reprimand, censure, suspension, or, theoretically, congressional impeachment. Sadly, even when a judge is found to have engaged in abusive conduct, there is often little transparency around who the judge is. There can be no accountability without transparency.
Judiciary policies share a common flaw: neither an EDR complaint nor a JC&D Act complaint can be “anonymous,” as the judge has the right to confront their accuser. This hinders potential complainants: when the stakes are high and the likelihood of success is low, clerks are not willing to stick their necks out and blow the whistle on their powerful, historically unaccountable bosses, in the absence of protection against retaliation.
Sadly, this lack of reporting enables the federal judiciary to assert that only a negligible number of complaints (typically fewer than 10) are filed by law clerks against judges each year. It’s not that misconduct isn’t happening: rather, the reporting processes do not work. The system is broken: clerks are not empowered to report.
We do not know the prevalence of harassment in the judiciary, because the judiciary has yet to release the results of either a workplace culture assessment or Government Accountability Office (GAO) investigation. Nor do we know statistics on employees’ use of the EDR Plan and whether it effectively resolves workplace disputes internally, because the judiciary will not release those data, either.
This of course presents a problem: to hold judges accountable, we must empower law clerks to report. But considering the enormous power disparity between judge and clerk, and the substantial influence judges exert over former clerks’ careers and reputations, clerks fear speaking out. A negative, or even a lukewarm, reference from a federal judge could derail a clerk’s career.
Solutions to protect clerks exist. Congress should extend legal protection against retaliation, of course. And legal employers should stop accepting judges’ references unquestioningly. Additionally, DWRs could serve as points of contact for mistreated clerks before job interviews, to intervene and prevent judges from giving negative reference. Law school career services offices who serve as middlemen between clerks and judges could also reach out to potential employers and urge them not to contact abusive judges, or at least provide context regarding a negative clerkship experience. We should stop acting as if there are no solutions and instead engage all stakeholders to solve these problems.
Both the Judicial Council order, and some social media commentary, referenced clerks’ “discomfort” with reporting. I find this problematic.
As someone who filed a complaint and participated in a judicial misconduct investigation, it’s a very uncomfortable experience. You must detail instances of abuse. You’ll be questioned by skeptics. You may not be believed. You may have to confront your abuser. You will probably need to find legal counsel, which is challenging. Your friends won’t all stand by you. You may struggle to find witnesses to corroborate your experience.
While reporting is uncomfortable, it’s more uncomfortable to suffer in silence and constantly worry about professional detriment. I often tell clerks that one of the best things they can do for their reputation is to report, creating a documented record of misconduct to point to if the judge does try to harm their career.
It’s also empowering. You have the opportunity to hold one of the most powerful members of the legal profession accountable for misconduct, and to help create larger cultural change, too.
We should be honest about challenges clerks face in reporting misconduct, without disempowering them from reporting. Procedural obstacles are not insurmountable. It frustrates me when former clerks discourage others from reporting, or complain about the process rather than, instead, helping clerks navigate it.
Reporting is also healing. I encounter former clerks who suffered in silence for years. Thanks to LAP’s work, they are increasingly empowered to speak with the press, share their experiences publicly, and file complaints.
The system only works if clerks use it. While public dialogue typically focuses on the downsides of reporting – career and reputational damage – it fails to underscore that it is also brave and empowering. As LAP changes the culture in the legal profession from one of silence and fear, to one of honest dialogue, it will no longer be a black mark for a clerk to discuss their negative clerkship experience.
So, what’s next?
Many attorneys will soon go back to their daily lives. But LAP will keep fighting for sweeping reform and real accountability, which are urgently necessary.
That includes extending anti-discrimination protections to 31,000 federal judiciary employees. Everyone deserves the right to a safe and respectful workplace, free from discrimination and harassment. And those who bravely blow the whistle on misconduct need legal protection against retaliation.
Additionally, the judicial complaint process should be removed from the judiciary’s chain of command, similar to how military sexual assault investigations were removed from the military’s chain of command, following evidence that officers were unwilling to discipline their colleagues.
And Congress must act to address these problems this year. The federal judiciary seeks an increasingly large budget from Congress each year, yet there are currently no strings attached. They should be required to release annual data to substantiate any claims of improvement.
Some in judiciary leadership seem to believe they “solved” these problems, since there had not been another Kozinski-type incident since 2017. This week’s news out of the same circuit barely scratches the surface of pervasive misconduct throughout the federal judiciary. The reforms implemented have been window dressing at best. And process changes are of little value without meaningful protection against further abuse and retaliation for using them.
The federal judiciary is at a critical crossroads. For years, they have asserted their commitment to fair, safe, and respectful workplaces without making meaningful changes. Now, they can either take real steps to signal a commitment to reform—changes to the EDR Plan; mandatory management training for judges; staffing changes in the AO; agreeing to outside oversight; releasing annual misconduct data; and extending Title VII to judiciary employees – or, they can continue burying their heads in the sand and attempting to stonewall both Congress and law clerk advocates.
Law clerks are watching. They are increasingly empowered to use their voices and share their experiences. And the law students LAP works with – aspiring clerks – are reshuffling accordingly—applying to clerk for judges who create supportive work environments and, finally, avoiding abusive judges.
Change is happening. Rather than try to ride out this scandal and await the next one, the federal judiciary should work with us to foster real transparency, equity, accountability, and safe workplaces.
Aliza Shatzman is the President and Founder of The Legal Accountability Project, a nonprofit aimed at ensuring that law clerks have positive clerkship experiences, while extending support and resources to those who do not. She regularly writes and speaks about judicial accountability and clerkships. Reach out to her via email at [email protected] and follow her on Twitter @AlizaShatzman.
