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.