Judges who interpret and enforce the law should themselves be subject to it. Yet right now, judges are above the law.
The federal judiciary is exempt from Title VII of the Civil Rights Act of 1964, meaning judiciary employees—including law clerks and federal public defenders—cannot sue and seek damages for harms done to their careers, reputations, and future earning potential.
There’s a fix. The Judiciary Accountability Act (JAA) (H.R. 4827/S. 2553), introduced last Congress by the House and Senate Judiciary Committees, would not only extend Title VII protections, closing this outrageous loophole. It would create real judicial accountability, by specifying that judicial misconduct investigations would continue even if the judge under investigation retires, resigns, or dies; create multiple confidential reporting channels for clerks; standardize internal Employee Dispute Resolution (EDR) Plans; and create an overarching Commission on Judicial Integrity to oversee these programs. It would also finally require the judiciary to collect and report data on workplace culture; diversity (or lack thereof) in law clerk and federal public defender hiring; and the outcomes of judicial misconduct complaints, which are currently shrouded in secretly. The lack of data in these areas has enabled judges to get away with misconduct for decades. It has also enabled some in judiciary leadership to assert that they’ve “solved” these problems because there hasn’t been another public Kozinski-type incident, thereby allowing them to both discount the scope of problematic behaviors in their ranks and disclaim responsibility for correcting them. Quantifying the scope of these problems is the first step toward crafting effective solutions.
Unfortunately, the JAA stalled in Congress. This is due to a combination of congressional intransigence; the small but weirdly powerful U.S. Courts lobby; and insufficient attention paid to law clerks, the public servants who assist with the courts’ critical work and courthouse functions every day and yet who lack basic workplace protections.
There is nothing unique about the judiciary such that they should be uniquely exempt from Title VII. Back when this antidiscrimination law was passed in 1964, it applied primarily to private businesses. Then, in 1995, pursuant to two separate laws – the Congressional Accountability Act and Presidential and Executive Office Accountability Act – Congress extended Title VII to itself and to the executive branch. At that time, the judiciary opposed attempts at regulation—a position it continues to maintain.
Judiciary leadership’s weak claims about judicial independence, judicial supremacy, and separation of powers are unpersuasive. They hope the legal profession will continue to deify judges and perpetuate a culture of silence. Title VII is not about suing judges for their rulings. Rather, judges are government employers running small workplaces. We should hold judges – the most powerful members of our profession – to the highest ethical standards, not the lowest. The separation of powers argument is particularly strange, considering that Congress regulates the judiciary every year—with its annual budget, one it beefed up last year for judicial security funding, despite the judiciary’s continued opposition to any workplace regulations or accountability. (If Congress wanted to be particularly bold—not a characteristic it’s known for—perhaps it should attach a Title VII provision to the judiciary’s annual funding bill.)
Many rank-and-file federal judges, as well as some other employees who work within the federal judiciary, support extending Title VII protections to the Third Branch. Judges who are doing the right thing have nothing to fear. It should be a red flag if any judge continues to assert that they are above the law. Judges tell me they didn’t realize Title VII did not apply to them, or that they ascended from state courts, where similar state anti-discrimination laws apply: nothing about themselves as employers magically changed when they received life tenure.
Judiciary leadership does not speak for all judges. Yet leadership continues to oppose the JAA—even, inexplicably, trying to assert last year in congressional testimony that Title VII does apply to the judiciary. I
Those in judiciary leadership who continue to oppose the JAA; oppose revisions to the Judicial Conduct and Disability Act and EDR Plans; and oppose other efforts at reform, don’t understand law clerks. Some have been on the bench for decades and are far removed from the everyday experience of being a law clerk. A judicial chambers is small, isolated, and hierarchical. Law clerks work long hours in stressful circumstances with just a few coworkers. They have one boss – the judge – who acts as hiring manager, Human Resources Coordinator, and Diversity, Equity, and Inclusion (DEI) director, making final decisions about hiring and firing, hours, and accommodations. There is nowhere for law clerks to seek assistance. While federal courthouses do have EDR Coordinators and Directors of Workplace Relations, law clerks convey to me that these are not trusted resources, as they are employed by – and ultimately loyal to – the judiciary. Furthermore, law clerks’ fears of reputational harm in the legal community for saying anything negative about judges, as well as fears of retaliation by the judges who mistreated them – concerns the judiciary has historically refused to address – preclude law clerks from filing complaints to initiate investigation, discipline, and reform.
Considering the enormous premium that the legal community – including law schools and legal employers – place on judicial clerkships, and their outsized influence on new attorneys’ future career success – we owe it to the next generation of attorneys to ensure safe workplaces and accountability for judges who mistreat their clerks. These issues affect everyone – whether you clerked or not – because the lack of judicial accountability has larger implications for fairness in judicial decision-making and the future face of the legal profession.
Congress should reintroduce and pass the JAA this year. No judge should be above the law.
Aliza Shatzman is the President and Founder of The Legal Accountability Project (LAP), a nonprofit aimed at ensuring that law clerks have positive clerkship experiences while extending support and resources to those who do not. Aliza earned her JD from Washington University School of Law in St. Louis, MO in 2019. Aliza regularly writes and speaks about judicial accountability. She has been published in numerous forums, including the Harvard Journal on Legislation, Yale Law & Policy Review, UCLA Journal of Gender & Law, NYU Journal of Legislation & Public Policy, Administrative Law Review, Above The Law, Law360, Slate, Ms. Magazine, and Balls & Strikes. Reach out to Aliza at Aliza.Shatzman@legalaccountabilityproject.org to learn more about LAP’s efforts to transform the clerkship application process–and the legal profession–for the next generation of attorneys.