A spokesman for the Administrative Offices of the U.S. Courts told the Post, “This was an unfortunate administrative error. No more—no less,” and that it was too small a sample to be meaningful, and that some of the people might have been talking about other jobs they had before they worked in the federal courts. That’s … a lot of excuses. But the federal judiciary has very good reason to be defensive about this.
Federal laws against workplace discrimination and retaliation do not apply to the federal judiciary. In their chambers, judges wield an amount of power that is unusual even in the U.S. employment system in which employers are so powerful. Every year, judges get a new crop of judicial clerks, young lawyers for whom a year in a judge’s office is a career-maker, and over whom judges have an astonishing amount of control. It’s a system in which sexual harassment goes unchecked—despite a couple of high-profile cases in which former clerks have courageously spoken out, we can be certain that the judges whose longtime patterns of harassment have been outed were not the only ones. (Note that Justice Brett Kavanaugh clerked for the predatory Judge Alex Kozinski.) This is a system basically designed to create abuses: judges with lifetime appointments, staffers without protections for whom this is make or break.
Chief Justice John Roberts has in recent years addressed the issue of sexual harassment and other workplace abuses, strengthening some internal procedures, but continues to insist that the judiciary can police itself and should not face external oversight. The fact that officials so quickly pulled the question offering staffers in judges’ chambers to report that they’ve witnessed misconduct is another sign that Roberts’ position is more about protecting abusive judges than about believing that the judiciary can really fix things.
“The judiciary cannot adequately assess whether misconduct is pervasive without robust and retrospective reviews, including questions tailored to assess the nature and frequency of such conduct,” an attorney who represents current and former federal judiciary workers told the Post in an email. “Although these issues are present in many workplaces, the judiciary is uniquely insulated from basic workplace protections and continues to insist on self-policing, which may explain these numbers and the lack of formal reports filed.”
This is a system that creates elites. Look at the ranks of recently appointed federal judges and you will find that the vast majority of them previously clerked for federal judges. Similarly, for lawyers in agencies across the federal government, as well as in major law firms and other places where you’ll find highly paid lawyers, clerking for a federal judge is a major resume line. If a society’s elites are shaped by a system in which they themselves have been exposed to abuse in unaccountable situations, then a large number of them will carry forward the view that abuse and lack of accountability is normal and routine. Additionally, there are thousands of people in the federal judiciary system who are not term law clerks—secretaries, paralegals, judicial assistants—people for whom this is a long-term job. They don’t get federal workplace protections, either.
It may well be the case that an informal survey as part of a registration for a training that not everyone will take is not the right place to ask whether staffers in judges’ chambers have witnessed inappropriate workplace conduct. But it’s a question that the federal judiciary needs to be asking all of its workers, rather than running scared when it starts to get answers.