Misconduct Findings Against Judge Prompt Clerk Safety Questions

An Alaska federal judge’s resignation following abusive conduct toward his clerks is raising concerns about whether some of the judiciary’s most vulnerable employees are properly protected from hostile workplaces, even as new measures have been put in place.

Former clerks who have advocated for changes to how the federal judiciary handles misconduct complaints noted that the order released Monday about since-resigned US District Judge Joshua Kindred’s conduct doesn’t mention steps taken to protect his clerks during the year-and-a-half long investigation into his behavior. And they said it underscores how the federal judiciary could benefit from additional safeguards.

“I think what this broadcasts is, law clerks continue to suffer in silence,” said Olivia Warren, a criminal defense lawyer in North Carolina who has testified about harassment she experienced as a law clerk. “There’s nothing you can do until it gets exactly this bad.”

The US Court of Appeals for the Ninth Circuit’s judicial council said in its order that Kindred, an appointee of President Donald Trump, had an inappropriate sexual relationship with a former law clerk. It also said he “engaged in misconduct pervasive and abusive, constituted sexual harassment, and fostered a hostile work environment that took a personal and professional toll on multiple clerks.”

A spokesperson for the Administrative Office for the US Courts said in an email that the judiciary has a “robust system in place” to effectively respond to workplace misconduct.

“In recent years the branch has taken steps to further ensure that law clerks and other Judiciary employees are treated with dignity and respect by strengthening processes for the redress of wrongful conduct and heightening accountability,” the spokesperson said.

A representative for the US Court of Appeals for the Ninth Circuit didn’t respond to a request for comment.

Legislative Fix

Legislation addressing the judiciary’s system for addressing misconduct complaints is expected to be reintroduced in Congress in the coming weeks, three years after a prior proposal was introduced. Those advocating for changes said they’re hopeful the new law, if passed, will help clerks feel more comfortable coming forward with issues.

The federal judiciary has made changes to its internal process for addressing misconduct issues, after Chief Justice John Roberts in 2017 directed the creation of a working group on the topic. An AO spokesperson said that group is “actively working on considering future recommendations for improvements to workplace policies and procedures.”

In the meantime, advocates said that courts could do more to protect law clerks, both during and after they leave chambers.

“I don’t see this necessarily as reflective of the reforms,” said Deeva Shah, another former law clerk advocating for changes. “It’s reflective of the fact that, in this one way, the system worked as intended and continues to work as intended. But the underlying investigation to me and all of the issues kind of highlight the issues that as an advocate we’ve been raising for the last five years.”

‘Protect the Clerks’

The 30-page order against Kindred said he had “abusive, oppressive, and inappropriate” interactions with his clerks.

“In the few instances where clerks came to Judge Kindred to discuss his inappropriate behavior, they were belittled or ostracized, and, in one instance, a clerk left the clerkship,” the order said.

The order also said that several law clerks requested anonymity as they spoke with a special committee investigating Kindred’s conduct.

Several former law clerks have gone public with allegations of misconduct or harassing behavior by federal judges. Alex Kozinski retired from the Ninth Circuit in 2018 after accusations of misconduct. And Warren in 2020 testified before a House committee about alleged harassment by the late Ninth Circuit Judge Stephen Reinhardt.

At the heart of many of the claims is the power imbalance between federal judges and their clerks. Law clerks are often young, recent law school graduates starting their careers. And a good relationship with a judge can help propel them into future professional opportunities.

The order against Kindred acknowledged this imbalance, saying that some clerks appeared to go along with the judge’s inappropriate text messages partly because they wanted “to preserve good relations with the judge.” The report said the text messages between Kindred and his law clerks filled 700 pages.

Few Safe Places

“They liked the judge personally and viewed him as a friendly figure, but they also wanted follow-on references, especially if they sought to remain in Alaska, where the legal community is very small,” the order reads. “The judge’s casual approach to the chambers environment exacerbated the power imbalance, a fact Judge Kindred still does not seem to acknowledge or understand. On reflection, and when interviewed by the Special Committee, several law clerks voiced their concern with the judge’s behavior.”

Aliza Shatzman, another former law clerk who founded and runs the Legal Accountability Project, said that clerks working in smaller legal communities like Anchorage can also be more susceptible to unsafe workplaces. Kindred said in a response to investigators’ findings that he became a judge during the start of the pandemic in early 2020, and that the law clerk he had an inappropriate relationship with was “often the only person I would interact with face to face” during his first year on the bench.

“There are very few judges, which means there are very few safe places to go to report mistreatment,” Shatzman said. “The judges know everybody, and the attorneys know everybody.”

Shah, an attorney with Keker, Van Nest & Peters, said that the recent instances involving other Ninth Circuit judges may have played into how the judicial council’s order was written.

“The amount of time it took, I think, indicates a lot of thought and care went into this opinion, but also because they understood that this would be scrutinized,” she said. Still, Shah said she was disappointed to not see references to how clerks were protected during the investigation.

It’s unclear from the report whether any steps were taken to restrict Kindred’s contacts with his clerks during the investigation. And the probe lasted long enough to encompass a new clerk hiring cycle, although it’s not known whether Kindred hired new clerks while he was being scrutinized.

“There is not a lot of acknowledgment of what happened to protect the clerks during this time period,” Shah said. “There’s not a lot of acknowledgment or apology to what the clerks had to suffer through in this time.”

Revived Legislation

House and Senate Democrats plan to revive legislation this summer that would boost protections for federal judiciary employees who report workplace misconduct.

The bill would add legal language shielding judiciary employees from discrimination based on race, religion, sex and other protected qualities and protect whistleblowers from retaliation. It would also establish a Special Counsel’s office within the judicial branch to investigate workplace misconduct allegations and conduct annual audits.

Currently, federal judges investigate complaints of misconduct by judiciary employees, which advocates say creates a conflict as they may be scrutinizing the actions of their close colleagues on the court.

The legislation was most recently floated in 2021 in the House and Senate, but stalled in both chambers.

Sen. Mazie Hirono (D-Hawaii) will re-introduce the Senate version in the coming weeks, which will include some tweaks to strengthen the language of the text from earlier versions, according to a Senate Democratic aide. The aide said the office’s work on reviving the bill predates the revelations about Kindred.

Rep. Hank Johnson (D-Ga.), ranking member of the House Judiciary Committee’s courts panel, will also reintroduce his own version before August recess, according to a Johnson aide.

“Federal judges should not be above the law,” Johnson said in a statement. “They need to be held to the highest of standards, and Mr. Kindred fell disgracefully short of that mark. The troubling and disgusting behavior outlined in the investigation is unfortunately not new in the judiciary. Employees of the judiciary deserve better.”