Tag: workplace harassment

Judge, Jury, and … Defendant?

A former public defender sued the federal judiciary’s lead administrative institutions for mishandling a harassment claim. Can those same institutions select the judges who hear the case?

Next week, the Fourth Circuit Court of Appeals is scheduled to hear argument in Roe v. United States, a case involving allegations that federal court officials — including those in the Administrative Office of the U.S. Courts (AO) — mishandled a workplace harassment claim. But none of the judges hearing the Fourth Circuit appeal are actually from the Fourth Circuit, just as the judge who heard the original case in the Western District of North Carolina was not from that district. Nearly two years ago, Chief Justice John Roberts reassigned the case to a district judge in Massachusetts and a “Fourth Circuit” panel composed of judges from other circuits.

From the courts’ perspective, this reassignment of the case was ordinary and ministerial, a way of avoiding the appearance of partiality or bias by taking the case away from judges in the district and circuit where the key events took place. But the plaintiff, whose case was eventually  dismissed, suggests that the process of reassignment was itself so flawed as to create “blatant conflicts of interest” and a “severe appearance of impropriety.” Accordingly, she is seeking to vacate the judgment of dismissal. 

The controversial reassignment process involved the Chief Justice, the Judicial Conference Intercircuit Assignment Committee, and staff from the AO and the Fourth Circuit. The judiciary’s brief recounts that a Fourth Circuit staffer informed an AO staffer about about the need for an intercircuit assignment — both for the district court and appellate proceedings. The AO staffer then consulted a roster of judges who had previously indicated their willingness and availability to serve on panels in cases in which one or more judges had been recused. The AO staffer then contacted each of the judges to confirm availability and willingness to serve on the case. Once the judges were confirmed, the staffer notified the Chair of the Intercircuit Assignment Committee, who finalized the necessary administrative paperwork for the Chief Justice’s signature.

The court system (represented, interestingly enough, by the Department of Justice) repeatedly characterizes this process as “routine,” noting that none of the individuals involved in the reassignment had any stake in the outcome of the case. Still, the plaintiff is unsatisfied. Although she does not claim that any of the reassigned judges are actually biased against her, the mere fact that individuals from the Judicial Conference and AO were involved in their selection is a glaring red flag. As plaintiff’s brief puts it, “[w]here following a routine process would create a conflict of interest in a particular case, the routine is supposed to yield–through proper recusal–in order to avoid the conflict of interest.”

This is a matter of substantial organizational complexity. Taken at face value, the plaintiff’s position suggests that any lawsuit naming the Judicial Conference or AO as a party would necessarily invalidate any reassignment, unless a completely different administrative apparatus is tasked with that responsibility. That could be accomplished only with considerable inefficiency. Even if the AO were to hand over its files on available judges to another office within the federal court system so as to wash its hands of the decision, the files themselves might arguably be tainted by having come from the AO. And, of course, the mechanism for selecting new judges would be placed into the hands of individuals and institutions who are not readily equipped to perform that function. 

Unfortunately, the plaintiff does not offer any clear solutions here, other than blanket vacatur of the lower court decision. That is her right, and perhaps it is good strategy. But it is hard to see how the current panel would simply throw the reassignment process into disarray without some idea of how the challenge could be met in the future.

Roberts to Congress: Thanks, but we’ve got it all under control

For 2022, the Chief Justice leans into an alternative view of judicial independence. Will it be enough to keep Congress at bay?

Chief Justice Roberts’s 2021 Year-End Report on the Federal Judiciary, dropped (as always) on New Years Eve, struck a more substantive and somewhat edgier tone than in years past. The Chief Justice identified three particular areas of focus for the Judicial Conference of the United States in the coming year: addressing financial disclosure and recusal obligations for federal judges, monitoring new mechanisms for reporting and stopping workplace harrassment, and preventing undue forum shopping in patent cases.

All three of these issues have been the subject of regular, and sometimes intense, Congressional scrutiny in recent years. But the Chief Justice’s report largely rejects the prospect of legislative fixes. Rather, consistent with the federal courts’ approach to the workplace harrassment scandal when it first broke in 2017, Roberts assures his readers that the Judicial Conference is willing and able to handle each of these issues internally. 

It’s not to see why the Chief Justice would go this route. As this blog has routinely described, the federal courts (like all courts, and indeed all organizations) operate under constant pressure from their external environments. Neoinstitutional theory identifies three types of pressure: coercive (the need to comply with legislation and other government mandates), mimetic (the need to be in line with similar institutions in order to maintain legitimacy), and normative (the need to adhere to social and professional norms). The federal courts face all three types of pressure, but are particularly susceptible to coercive and normative pressures. If the federal judiciary is not seen as ethical and apolitical, it will face Congressional action and lose legitimacy with the bar, the media, and the public. 

There is no question that the pressure has been turned up in recent weeks. The Wall Street Journal‘s expose on federal judges who failed to recuse from cases in which they held a financial stake was a significant blow to the judiciary, and has invited Congressional hearings. Some in Congress have used the scandal as an opportunity to resurrect additional transparency proposals, including courtroom cameras and free PACER access. And, of course, the progressive effort to pack the Supreme Court looms in the background, along with the ongoing politicization of judicial confirmation hearings and the Supreme Court’s forthcoming decisions on abortion and gun rights. It is fair to say that the federal courts are currently facing more external pressure and scrutiny than at any time since the 1960s. Continue reading “Roberts to Congress: Thanks, but we’ve got it all under control”

James Duff to leave AO

James Duff, the longtime Director of the Administrative Office of the U.S. Courts, will retire from that position on January 31. Duff served two stints as Director, from 2006-2011 and again from 2015 to the present. During his tenure, he has brought many significant improvements to the federal courts system’s internal operations and external relationships, including overseeing the federal Working Group on Workplace Conduct and helping the courts quickly adjust to the challenges posed by the coronavirus pandemic. Not every initiative on Duff’s watch has been a success — the effort to bar judges from associating with the Federalist Society and the American Constitution Society was ill-advised from the start — but overall Duff has helmed the AO with a steady hand and extraordinary competence and vision.

Chief Justice Roberts has appointed U.S. District Judge Roslynn Mauskopf as the new AO Director. She will be the first woman to lead the AO in its 81-year history. We wish her the best in the new position.

What is the right level of court system transparency?

Court transparency is essential, but it cannot be one-size-fits-all proposition. Here’s why.

Several recent articles in the popular press and academic literature have grappled with the issue of transparency. Professor Scott Dodson has written about the “open-courts norm” in the United States which, “accentuated by the First Amendment,” guarantees that criminal (and in most cases, civil) proceedings are open to the public. And, channeling Homer Simpson, Professor David Pozen has described government transparency “as the cause of, and solution to, a remarkable range of problems.” Outside the academic world, organizations such as Fix the Court are issuing their own transparency report cards to draw attention to the refusal of some courts (including the U.S. Supreme Court) to broadcast oral arguments.

These commentators are on to something important. As public organizations, courts are expected to be broadly transparent about their activities. But not all forms of court transparency are the same. Some types of transparency are necessary to the courts’ survival, while other types of transparency would actually undermine the courts’ operations. It is worth considering why.

Continue reading “What is the right level of court system transparency?”

What should we expect when Justices Alito and Kagan testify before Congress this week?

Political theater, to be sure — but of the potentially useful variety.

U.S. Supreme Court Justices Samuel Alito and Elena Kagan will reportedly testify before the House Appropriations Subcommittee on financial services and general government on March 7, to discuss the Court’s annual budget request. It will be the first public hearing on the Court’s budget since 2015; over the last several years, Justices have met privately with Congressional leaders.

The tradition of federal judges (including Supreme Court Justices) testifying before Congress dates back at least to the 1920s, when then-Chief Justice Taft and selected colleagues repeatedly appeared before Congress to discuss pending legislation affecting the courts. But that was in an era before television cameras and Twitter. The purpose and meaning of such hearings has long changed, and the presence of Justices, sans robes, at the witness table is sufficiently unusual these days as to attract quite a bit of attention.

Even though the scheduled testimony is technically about the Court’s budget, everyone seems to understand that financial minutiae will only be a small part of the discussion. Subcommittee members are likely to use the rare opportunity for direct interaction with the Justices to broach a variety of unrelated subjects, including an ethics code for the Supreme Court, the introduction of courtroom cameras, and the federal court system’s new workplace conduct policies.

The hearing itself is unlikely to break any new ground. The Justices have a strong tradition of circling the wagons on their internal matters, and Justice Kagan in particular has a smooth temperament that helps her avoid stepping into controversy. (She did manage to effectively wrangle the Harvard Law faculty for several years, after all.) Alito and Kagan both understand the nature of the production, as well as the ultimate goal: to get out unscathed.

To the extent Congress and the courts need to coordinate on important issues, one can only hope that they are doing so behind the scenes. The courts have been understandably cautious about communicating directly with Congress on matters of legal interpretation, given separation of powers concerns. But administrative issues are a different animal altogether, and there is ample space for the courts to work with Congress on funding and operational issues which are of important interest to both branches.

Still, while Thursday’s hearing may not produce much that is immediately newsworthy, it is still an important exercise. The Supreme Court has been famously reticent to align many of its practices with modern public expectations, from failing to adopt an ethics code to rejecting calls for courtroom cameras. Congressional hearings put the Justices on the spot to justify the Court’s positions in a public forum, thereby forcing the Court to periodically reconsider whether its existing practices help or harm its public legitimacy.

Neither the Supreme Court nor the federal court system should allow itself to be bullied by Congress or public demand, but there is still room for continuous improvement. The occasional public hearing can be a useful pressure point to bring that improvement to fruition.

 

 

Federal courts appoint first Judicial Integrity Officer

Back in January of this year, Chief Justice John Roberts appointed a Workplace Conduct Working Group in response to several public allegations of workplace harassment within the court system. The Working Group made its recommendations in June. Now, the court system had followed up on one of the most significant recommendations by appointing a Judicial Integrity Officer: Jill Langley, formerly the Director of Workplace Relations for the Tenth Circuit.

According to the press release:

One of Langley’s first responsibilities will be to set up a new office that will serve as an independent source of information and referral. This will include answering individuals’ questions, providing guidance on conflict resolution, mediation, and formal complaint options.

The new Judicial Integrity Office also will track and monitor data and any recurring workplace issues to identify trends and conduct systemic analyses and reviews. In addition, Langley will provide training throughout the Judiciary and serve as a resource for workplace conduct staff throughout the court system, including coordination with the Ninth Circuit’s director of workplace relations, the D.C. Circuit’s workplace relations coordinators, and other similar positions in the courts.

 

Senate Judiciary Committee holds hearing on federal court workplace harassment

Last week, Senator Charles Grassley promised to hold a hearing on the federal courts’ response to workplace harassment, which culminated in a working group report. The Washington Post reports on that hearing here.

From the story:

Sen. Dianne Feinstein (D-Calif.), the top Democrat on the Judiciary Committee, said in her opening statement that she was troubled by some aspects of the report.

“I’m also concerned that the working group’s report didn’t quantify the prevalence of sexual harassment in the judiciary and instead relied on previous EEOC data,” said Feinstein, using an acronym for the Equal Employment Opportunity Commission.

Grassley said in an interview that the report seemed like a way to “create the appearance of caring” while leaving “employees of the judicial branch without a vehicle for reporting abuses.”

The Iowa Republican said he would like to see an independent watchdog for the judiciary that could take and investigate reports of harassment. While Congress could theoretically get involved with legislation, he said, that might be difficult to accomplish in practice.

Grassley seeks hearing on federal courts’ approach to handling sexual harrassment

This week, the Federal Judiciary Workplace Conduct Working Group released its report and recommendations, which covered a range of workplace conduct including sexual harassment.

Senator Chuck Grassley is not impressed with the final report, stating that “The report lacked very serious proposals and, in a sense, just kind of kicked the can down the road.” He wants Congressional hearings on the matter.

Stay tuned.

Federal courts announce recommendations for workplace changes

The Federal Judiciary Workplace Conduct Working Group, formed in the aftermath of the Alex Kozinski scandal, has issued its report and recommendations.

From the press release:

The recommendations include clarifying workplace standards and communications about how employees can raise formal complaints, removing barriers to reporting complaints, providing additional and less formal avenues for employees to seek expert advice and assistance on workplace conduct issues, and utilizing enhanced training on these subjects for judges and employees.

Several recommendations of the Working Group have already been implemented or are underway, such as clarifying that confidentiality rules in the Judiciary do not prevent law clerks or employees from reporting misconduct by judges. Many of the report’s recommendations require further action by the Judicial Conference.

The entire report can be found here.

California judiciary readies new sexual harassment guidelines

In the wake of the federal court system’s formation of a working group to address sexual harassment in the judiciary, the California courts have formed their own working group to address the same issue. Among other things, Chief Justice Tani Cantil-Sakauye is pushing for a change to the current court rules that would require public disclosure of settlements for sexual harassment claims involving judges. Proposed new rules should be unveiled in the next few weeks.