Short Take: Hysteria and the Federal Bench

Following the somewhat disingenuous revelations about former Ninth Circuit Judge Alex Kozinski, Chief Justice John Roberts convened a “working group” to formulate ways in which to address the “problem” of federal judges. The brilliantly titled “REPORT OF THE FEDERAL JUDICIARY WORKPLACE CONDUCT WORKING GROUP TO THE JUDICIAL CONFERENCE OF THE UNITED STATES” has now been revealed. It reads like an EEOC polemic on workplace whining.

The EEOC Study of harassment in the workplace provided the Working Group with a current and reliable empirical baseline to understand the problem and focus its inquiries. The EEOC Task Force conducted its study over 18 months from January 14, 2015, through June 2016. The 88-page report convincingly explains that workplace harassment is a persistent and pervasive problem in all economic sectors, in all socioeconomic classes, and at all organizational levels. The EEOC Study noted that almost one third of the 90,000 charges it received in 2015 included an allegation of workplace harassment. Those charges included harassment on the basisof sex (including sexual orientation, gender identity, and pregnancy), race, disability, age, ethnicity/national origin, color, and religion. The EEOC Study found that between 25 percent and 85 percent of women in the private sector and federal sector workplace experienced sexual harassment, depending on how that term is defined. The EEOC Study stated that three out of four individuals who experienced harassment never talked to a supervisor or manager about it. In short, the EEOC Study confirmed that the problem of workplace harassment is both widespread and underreported in workplaces throughout the nation, and—as the Chief Justice noted in his Year-End Report—there is no reason to believe that the Judiciary is immune.

Except there is a very good reason to distinguish the judiciary from Joe’s Auto Salvage, as well as the claim of empiricism based on definitions of harassment conditioned on little more than the sensitivity of the baby lawyers and the inconsequential feelz-scolds who, despite no Senate ever confirming their positions, feel entitled to dictate to federal judges what words they may utter in their own chambers.

For the most part, the men and women of the federal judiciary have amassed some remarkable accomplishments. Yes, there are exceptions, but you don’t get to sit on the federal bench for licking envelopes. Not only are these very accomplished people, who have been subject to scrutiny and vetting at many levels, Senate confirmation included, but they tend to be inordinately polite and respectful. Often to a fault.

So yes, there is a damn good reason to believe that the federal judiciary is different than the basic workplace. More to the point, these judges are entrusted to make some very serious, often life-changing decisions. But they are not subject to the whims and feelings of their law clerks for using a word that fails the political correctness test. Or have judges been inadequately “civil” to suit the sniffles of the baby law clerks whom they’ve invited into their chambers, whose only accomplishment to date is getting on law review?

The Executive Summary suggests that there should be roaming rats in the back rooms of the federal courthouse, sniffing out offending judges who fail to meet their infantile notions of bias and, sniff, civility.

  • A judge has an affirmative duty to promote civility, not only in the courtroom, but
    throughout the courthouse. The admonitions that judges show patience, dignity, respect,
    and courtesy to litigants, jurors, witnesses, lawyers, and the public also apply to judicial
  • A judge should neither engage in nor tolerate inappropriate workplace conduct, including
    comments or statements that could reasonably be interpreted as harassment, abusive
    behavior, or retaliation for reporting misconduct.
  • A judge has a responsibility to curtail inappropriate conduct by others, including other
    judges. The judicial virtues of mutual respect, independence, and collegiality should not
    prevent a judge from intervening when necessary to protect an employee (including a
    fellow judge’s chambers employee) from inappropriate conduct.

So judges not only need meet some standard of civility themselves, but are culpable for not ferreting out the wrongthink of the brethren, and ratting them out? But it gets worse.

• Judicial employees, including supervisors, have a duty to promote workplace civility,
avoid harassment, and take action when they observe misconduct by others.

Picture roving bias response teams with their ear at the door of chambers just in case a judge uses a sexist word like “hysteria.” Not only does a judge now have to worry about the undue sensitivity of her own choice of law clerk, but that of the other judges, as any sensitive soul can complain that they overheard some judge utter a word they find horrifying and exhausting.

There is certainly conduct that goes beyond anything tolerable from anyone, federal judge included. Koz is an example. Sam Kent is another. But the judge says a word that makes a law clerk sad or tells a joke that violates some snowflakes sensibilities? Hysterical.

17 thoughts on “Short Take: Hysteria and the Federal Bench

  1. B. McLeod

    Well, if the report has at least one page for each string on a piano, it must be serious. I think that is a rule somewhere. On the other hand, I can’t imagine why anyone of sound judgment would purposely subject themselves to the giant cluster this will become.

    1. SHG Post author

      Yet, in 88 pages, nowhere does it offer a definition of harassment. It does, however, connect harassment with the need for civility, because as everyone knows uncivil language creates a toxic workplace for the unduly sensitive.

      1. B. McLeod

        Unfortunately, as these things spiral down and down, the unduly sensitive are actively solicited to become ever more unduly sensitive. There are classes in the universities now on how to be offended.

      2. Norahc

        That’s the genius of the new order. By failing to define something, they can always change it later to meet their whims.

      3. LocoYokel

        I want to see the u-tube video of the session where the woke lawyer starts trying to lecture the judge on the “correct” way to address xir and to run his (her) courtroom and ends up getting cited for contempt. I just feel sorry for the client.

        I will pay for the video.

        1. SHG Post author

          From the transcript in Doe v. Johnson & Wales University before Judge John J. McConnell, DRI.

          THE COURT: You know, now that you’ve used it
          twice, I realize you’re quoting directly from the
          Plaintiff’s Complaint, but my younger law clerk pointed
          out to me that the use of the term “hysteria” is a
          rather sexist term.

          MR. RICHARD: I’m just using what they do.

          THE COURT: I know. Unbeknownst to me, it
          derives from the Latin term for a woman’s sexual organs
          and has sexual — sexist connotations that go with it.
          I was going to wait and tell that to the Plaintiff; but
          seeing you’ve now done it, I’d appreciate it if we
          didn’t —

          1. LocoYokel

            Ah, but that’s going the opposite way of what I wanted to see, and it didn’t end in the lawyer being tagged for contempt. I really want to see some judge call out one of these kids and tell them the world doesn’t revolve around their feelings in a way that makes it stick. A nice big “wake up and welcome to the real world” type of event.

            I put your brisket in to corn last night. In a month I will have 12lbs of corned beef that needs rub and smoking. I’d send pics but you really don’t want to see how the sausage (or corned beef) is made.

            1. LocoYokel

              I think that slaw might end up being saurkraut by the time the pastrami is ready. But then all you need is rye bread, swiss cheese, and russian dressing for some really awesome sandwiches.

  2. Richard Kopf


    I have a rhetorical question about the use of the word “civility” in the Federal Judiciary Workplace Conduct report, particularly as it regards the treatment of law clerks. Let me set the stage.

    I was 25. He was 50. I had recently graduated from law school. He was a federal appellate judge. He was also a genuine war hero, the youngest US Attorney ever appointed in our state, and, before his appointment, a very, very heavy hitter in national politics. In retrospect, it was fortunate that he turned down President Nixon’s request that he serve in the White House.

    Over the two years I worked for the judge, I pounded out a lot of stuff on a new IBM Selectric typewriter. It was quite the machine. State of the art. Anyway, one time I quickly and sloppily wrote an opinion to avoid the dreaded 90-day report on cases under submission. I handed my handy work in for the judge’s review. Then, the telephone rang. The judge’s very kind secretary said I was to come to the judge’s office right away, and then she hung up. Her curt command was unusual and because it was unusual it was terrifying.

    In the office, I sat down in front of his desk. He looked at me with his piercing dark eyes. And then the judge said, “I am not your fucking editor.”

    With that, he tossed the opinion back to me. His red marginal notations seemed to jump off the pages as the opinion whistled across the desk to me. While he was absolutely and unequivocally correct that the opinion contained silly and careless errors, I left feeling shamed. I remember my face flushing, and I mean literally.

    Was the judge uncivil?

    You be the judge.

    All the best.


    PS. The judge was a father figure to me, and later also a dear friend. More than anyone, I owe my appointment to him. I cannot adequately express how much I miss the judge. My reverence and respect for him knows no bounds. But my rhetorical question still stands.

    1. SHG Post author

      The first thing I bought as a new lawyer was an IBM Selectric III. It was the Cadillac of typewriters and proved I was a professional. Back then, shaming someone who needed to be shamed wasn’t a question of civil, but teaching. Also back then, the children weren’t entitled to their opinion being respected just because they had one. One learned more back then from a smack then a tummy rub, but we realized we had no clue and needed to be taught, and were thankful that someone would care enough to give us a smack when we deserved it.

      Was the judge uncivil? You used the past tense. Would the judge be considered uncivil today, by young people who feel entitled to scream at their professors for not being sufficiently obsequious? Would they be bold enough, shameless enough, to take their uncivil judge to task for it, especially if they had the opportunity to do so without ramifications? Even if not, would there be someone in the backrooms of the courthouse who might do so on their behalf because they are the scolds of uncivil behavior?

      1. Richard Kopf

        You have framed the pertinent questions perfectly. But, I have no answers.

        What I can say is that working for the judge was the best job I have ever had and the idea of me complaining to anyone about his “uncivility” never entered my mind then and, in retrospect, even now seems preposterous. By the way, I had heard the word “fucking” well before 1972. It remains one of my favorite words.

        All the best.


        1. PaulaMarie Susi

          Well, as a judicial employee, I’m fucked (also my favorite word). I tend to be plain-spoken and have an extremely low tolerance for assholes (I know, bad career choice, retirement is on the horizon). I really don’t do well with snowflakes. I’m not intentionally rude, but I am blunt and to the point. Check your feelz at the door.
          Uncivil? I don’t think so. That judge had a job, so did RGK the clerk. One did his, the other, at that moment, failed. One sharp reprimand and look at the result. Lesson learned. A great mind focused, certain never to make ‘that’ mistake again. I call it very constructive criticism. I’m happy to say I’ve never seen anyone (I would consider) harassed in my courthouse. Constructive criticism welcome here.

          1. Richard Kopf

            PaulaMarie Susi,

            While SHG can attest to the fact that I remain a poor proofreader, in my work everything I type myself (and I write a lot of my own stuff) goes through an editing process by a third person.

            After I told the above story to my career law clerks, I said, “You are my fucking editors.” They smiled. They are adults.*

            I really appreciate your comment. By the way, #me too regarding our little court.

            All the best.


            * Both have been with me for over 20 years. One guy is 67 and the other gal is in her mid-fifties. They’re the best! And the AO is insane for limiting the number of career law clerks. Luckily, both are grandfathered.

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