The “Unsexy” New Rules For Federal Judges

The oddity, that was only lost on the people doing the preaching, was that none of the @ClerksForChange who spoke at the hearing on changes to the rules of conduct for federal judges suffered a scintilla of harassment, sexism, misogyny, any of the evils about which they complained. Each proclaimed their judge to have been wonderful, a paradigm of propriety.

But they had stories. Other people’s stories. Where these other people were, what they were complaining about was unclear. There were the Koz clerks, who only managed to shift from their adoration and appreciation of judge Alex Kozinski to their ripping him to shreds after they served out their clerkship and enjoyed the huge benefits of having been a Koz clerk. Ironically, the only example given was of one senior judge from flyover land whose one sharply-pointed twit was proof of the particular speaker’s being sexually harassed. By a twit. One twit. Not to her.

The new rules have now been formulated and were announced by judge Merrick Garland.

The changes to the disciplinary system were adopted following sexual misconduct claims against a once prominent appeals court judge in California, Alex Kozinski.

Kozinski stepped down from the bench after The Washington Post reported that 15 women had accused him of a range of misconduct.

The Koz scandal raised two issues, the first being what he did, but the second was the outrage over the end of the investigation upon his resignation. That Koz was bad was ended with his tenure, but that wasn’t nearly enough for those who wanted his conduct put on display for all to hate.

The thrust of their complaint was that Judge Kozinski’s sexual harassment and assault wouldn’t be available in disgusting detail to point to as proof that female clerks who never personally endured an iota of impropriety were nonetheless survivors by proxy. The end of the investigation into Koz denied them of their moment of glory. They were mad and demanded changes.

At a press briefing Tuesday at the Supreme Court, Merrick Garland, the chief judge of the federal appeals court in Washington, announced the adoption of the new system for handling workplace harassment complaints. Under the new rules, judges and court employees are required to report likely misconduct, and retaliation against individuals who disclose bad behavior also constitutes misconduct.

That reporting misconduct is not precluded by chambers confidentiality and protected from retaliation is both appropriate and uncontroversial, even though it was the excuse for why clerks whose stories were told long after the fact never resulted in complaints at the time. But what constitutes “likely misconduct,” or as the new rules characterize it, “cognizable misconduct,” is the question.

(2) Abusive or Harassing Behavior. Cognizable misconduct includes:

(A) engaging in unwanted, offensive, or abusive sexual conduct, including
sexual harassment or assault;
(B) treating litigants, attorneys, judicial employees, or others in a
demonstrably egregious and hostile manner; or
(C) creating a hostile work environment for judicial employees.

There is no further definition of what constitutes sexual harassment or hostile work environment, though as subsection (B) states, harassing behavior of “judicial employees, or others in a demonstrably egregious and hostile manner” seems directed to the concerns that federal judges will be the target of newly-minted law clerks roaming the back hallways of the courthouse in search of a judge uttering a word or idea they were taught in their “Gender and the Law” class is traumatic, triggering and conclusive proof of misogyny.

So what is “harassment”? What is a “hostile work environment”? The Codes of Conduct fail to offer any cognizable definition. Presumably, it’s the same as set forth for employment discrimination under Title VII, that it must be severe and pervasive, but it’s peculiar that these changes were made and yet there is no attempt to define the word “harassment,” as meaningless a word as exists in the law. Is harassment an objective thing, or whatever the “survivor” of words or ideas chooses it to be, as has become the popular definition among the deeply sensitive?

Still, the new rules were sufficient to soothe the savage clerks, who could take comfort in there being new rules at all even if they didn’t quite achieve the public inquisition and flaying at the whim of the most passionate transitory employee in the courthouse.

Jaime Santos, an appellate attorney who helped found Law Clerks for Workplace Accountability, said she is pleased that judges who become aware of misconduct are now obligated to report it.

Santos, whose organization has worked with the judiciary to combat workplace harassment, said the judiciary should hire independent investigators to handle complaints and that any allegations made against judges should be automatically be referred to a different circuit. “These measures would better ensure actual neutrality and increase employee confidence that they will receive a fair and impartial investigation and adjudication if they are brave enough to come forward and report harassment if they experience or witness it,” she said.

To the extent the new rules clarify that misconduct in chambers isn’t subject to confidentiality, that there should be no retaliation against anyone complaining and that clerks should not be subject to some of bizarre and egregious conduct that apparently occurred in Judge Kozinski’s chambers, they are appropriate and a positive step forward.

To the extent they blunt the demand that every Article III judge be subject to the latest fashion trend in social justice purity by the most woke law clerk in the courthouse, then subject to scrutiny by outside inquisitors, the new rules are appropriate as well. Judges shouldn’t engage in sexual misconduct, and the fact that this needs to be said is, frankly, shocking. But going beyond misconduct into the realm of the most sensitive clerk’s feelings about political correctness was a step too far.

There should be confidence that federal judges, given the enormity of their authority, behave properly and in accordance with law. There should also be confidence that they aren’t cowed by the fear that any new clerk in the courthouse can dictate the words they use or the ideas they express. The rules seem to do a fairly good job of maintaining this balance, even if the word “harassment” remains as much of a mystery as ever.

18 thoughts on “The “Unsexy” New Rules For Federal Judges

  1. wilbur

    As my father used to say, these judges are gonna get their tit in a wringer.

    They may think the little dam they built with these rules will hold back the mob, but the mob is just getting started.

    Reply
    1. SHG Post author

      Let’s be real, as Koz did some things that went way over the line. Whether he got away with it for lack of a system or because he was a feeder judge and adored by so many is different question, and it may be that “powerful” judges will get away with anything no matter what. So the fact this wasn’t addressed years ago reflects a real problem.

      But then, crossing the line from sexual misconduct into political correctness as defined by the delicate feelings of the most fragile scold in desperate search of a judge to destroy was what was at stake here. Did they give too much, too little or just enough? Time will tell, I guess, but my suspicion is that they threaded the needle pretty well here, but for the lack of a definition of harassment that leaves too much to the imagination of the children.

      Reply
        1. SHG Post author

          STOP HARASSING ME!!!

          It had been my hope that this would be the rubicon where the H-word was finally given some cognizable objective meaning. My hopes were dashed.

          Reply
  2. John Barleycorn

    Speaking of Alex have you written him a request letter to be interview for one of your “Cross with_______________ posts” or a guest post soliciting letter yet?

    If not…. don’t you think it is about time SJ had another contest?

    P.S. As part of the winning letter purse inducement package for a “SJ Guest Post” or a “SJ Cross Post” I will provide whoever submits the winning entry Solicitation Letter a custom “SJ Patch” for them to sew onto their favorite leather jacket.

    P.S.S. I will also spring for the model of Alex’s choice (under 5K) adorned in a “Discovery Bikini” or “Discovery One-Piece” bathing suit (custom designed by Fubar if he is up for it) and provide the use of Habeas Harley for the photo shoot to accompany his coming out Cross with Alex spread in the pages of SJ. If he does a guest post instead I will make sure he gets a “SJ Patch”.*

    P.S. Hey!!! If you don’t do it, you know Esquire, The New Yorker, Harper’s, or Rolling Stone will and they are just gonna totally fuck it up and will probably just gloss over discovery all together….

    *If he goes this route, which I hope he does, I get to pitch him on the “Traveling with Justice Minstrel Tour” three city intro kickoff.

    Reply
      1. John Barleycorn

        If you can get his address and make some calls to insure I don’t get shot when I roll up at his gate, I will do that!!!

        P.S. I wonder how much it would cost to print me up and bind a copy of SJ from the last decade to leave behind if he doesn’t open his gate and I trust you don’t want to edit the solicitation letter I write on the front jacket correct?

        P.S.S. Seeing as how it appears our esteemed host is a wuss, I might need some back up with this mission. What are you doing this summer Judge Kopf? A Robed Rider with the miles you have put on over the years would be an invaluable asset on such a mission.

        Reply
  3. RedditLaw

    Or “harass” could mean a course of conduct that causes emotional distress, in which case our friend from Omaha would only be one more tweet away from facing the Inquisition. This term was left undefined for a reason.

    Reply
    1. SHG Post author

      Or it could mean SPACE ALIENS!!! I appreciate that you just want to make a joke for the judge, but consider that some non-lawyer will read that first sentence and not realize why their brain cells just died. Don’t do that.

      Reply
      1. RedditLaw

        This is area where you and I seem to always disagree, i.e. how far along we are on the path to the curtailment of expression. Every day in my job, I see prosecutors attempt to take nebulous terms and claim that the “including, but not limited to” enumeration language is surplusage, and the fact that the statute says “harass” or “any harm” means that the violation is anything that the prosecutor says that it means. Due to the social class of my clients, the prosecutor often gets his way, and new law gets made because much of the law is simply doing what the person ahead of you did.

        So, while I don’t think that Judge Kopf is in any actual danger of being ensnared by these rules–if only because he can see the issue at this point from a mile off–I think that when the people who prosecute federal judicial misconduct want to make an example of someone, the lack of clear definition for the word “harass” will be exploited, just as it is right now against the poor folks that I represent.

        Get as mad at me as you like, but the chilling of expression has already started. Eventually, I think that there will be something akin to a speech code.

        Reply
        1. SHG Post author

          Let me explain this as clearly as possible. This is a post about the new rules. Harassment is tangentially involved, because it’s pervasive in the rules and left undefined, which is a point I note. I’ve discussed the problem with the definition of harassment in depth in other posts. You write a comment with a problematic definition of harassment here, which I take to task.

          Now you write this lengthy horseshit about the definition of harassment and your clients. Now, bear in mind, you don’t give a name. Nobody knows if you’re really a lawyer, what kind of lawyer you are, what you do, where you do it, but still you want to argue with me about your right to be on my blawg, write moronic tangential comments on a subject that has been dealt with here, by me, before you showed up here, without even the small courtesy of not being an asshole ‘nym?

          I’m not mad at you. I’m annoyed that your comments make people stupider and I don’t want it to happen on my blog. Now, guess where you should go if you want to comment from now on?

          Reply
        2. David

          The first rule of SJ is don’t be an asshole. Scott gets to decide when that rule is violated because his house, his rules, but more importantly, he has to tolerate all the commenters, whereas we float in and out at our leisure. You have your issue and want to rant about your take on it? That’s nice, but don’t be an asshole about it by trying to hijack Scott’s post.

          Remember, we all come here to read Scott. You know who we don’t come here to read? So say you’re sorry, maybe give a little background about yourself so you’re not just another anon bigmouth dipshit, and stop being an asshole. Scott’s easily annoyed, but very forgiving.

          Reply
    2. Richard Kopf

      RedditLaw,

      I understand that I am in flyover country where the geography of that place is unknown to all but the few remaining Native Americans and the less than two million who toil in obscurity except on the rare occasion when our $35 million coach wins one.

      Omaha is north of the Platte River and my office (and home) is south of the Platte River. By the way, Nebraska means flat waters in some now almost forgotten tongue.

      Does any of this matter? No (except for the flooding). It is almost like endeavoring to define the meaning of the word “harass.” *

      All the best.

      RGK

      * If you are interested in the original meaning of the word, you might want to consult Grose’s Dictionary of the Vulgar Tongue (1785).

      Reply

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