Judiciary ‘Falls Short’ on #MeToo Protections, Lawmakers Say (1)

March 6, 2020, 7:49 PM; Updated: March 6, 2020, 10:33 PM

A bipartisan group of congressional lawmakers rebuked the federal judiciary for “systemic problems” with its processes for reporting and addressing judicial misconduct.

The court system’s current “processes for handling workplace misconduct continue to fall short,” House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.), Vice Chair Mary Gay Scanlon (D-Pa.); and committee members Hank Johnson (D-Ga.) and James Sensenbrenner (R-Wis.) said Friday in a statement.

They were reacting to a March 3 letter from the Administrative Offices of the U.S. Courts—the administrative wing of the federal judiciary—addressing the recent resignation of Judge Carlos Murguia, who stepped down Feb. 18 over a sexual harassment scandal.

Murguia, the first Hispanic named to the bench in the U.S. District Court for the District of Kansas, was publicly reprimanded in September after a committee of federal judges found that the longtime jurist “gave preferential treatment and unwanted attention to female employees of the Judiciary in the form of sexually suggestive comments, inappropriate text messages, and excessive, non-work-related contact, much of which occurred after work hours and often late at night.”

The judiciary had been considering whether to recommend impeachment for the Bill Clinton appointee when Murguia resigned amid renewed attention, the courts office said.

Murguia’s resignation is effective April 1. He will leave the bench “with no pension or any retirement benefits, having been publicly censured by his judicial colleagues,” the courts office said.

The AO also touted recent efforts to improve workplace safety in the wake of sexual harassment allegations against high-profile judges including now-retired Alex Kozinski and the late Stephen Reinhardt, both of the San Francisco-based U.S. Court of Appeals for the Ninth Circuit.

Those measures include establishing a Working Group to assess the judiciary’s standard of conduct and procedures for investigating workplace misconduct. That Working Group has made dozens of recommendations aimed at improving the process, the AO said.

But the members of the Congress said the Murguia matter actually underscores “that the judiciary’s processes for handling workplace misconduct continue to fall short.”

The judiciary’s “order concerning Judge Murguia raises significant questions about whether there are appropriate procedures in place to consistently and fairly handle complaints. Moreover, it comes nearly four years after his misconduct was first reported, after two Congressional hearings, and after Judge Murguia had announced his resignation,” they said.

It suggests “a patchwork of policies across the different judicial circuits and with limited options for reporting outside of an employee’s immediate environment, calling into question the ability to report violations confidentially,” the members of Congress said.

The AO declined to comment on the lawmakers’ Friday remarks.

Next Steps

This latest back and forth between the judiciary and Congress leaves unresolved the question of what happens next for courthouse sexual harassment reporting. And there’s no shortage of ideas from the legal community.

Gabe Roth, executive director of Fix the Court, a nonpartisan group focused on court transparency, said he hopes Congress considers legislation to make it clear that there are legal remedies beyond the internal channels within the courts.

Just like the 2018 amendments to the Congressional Accountability Act, which made changes to its procedures for sexual harassment reporting, “there needs to be a similarly robust set of changes to federal law” for victims of harassment, retaliation or discrimination in the judiciary, Roth said.

But University of Pittsburgh law professor Arthur Hellman, said legislation should be a last resort, and the judiciary should more aggressively pursue solutions to the reporting system itself.

“The judiciary shoots itself in the foot when it goes most of the way but not all of the way,” Hellman said.

The letter would’ve had more impactful, for example, if the judiciary had been able to say that every court had a method for anonymous reporting, but instead, Hellman said, it said “some” courts had systems for that kind of reporting.

The portion of the letter Hellman was referring to states that “some circuit directors of workplace relations also have systems to enable employees submit anonymous reports of misconduct and will share information about harassment or misconduct allegation to the local court resource without identifying the reporting employee, if the employee so requests.”

A mandate to those regional circuits that they need to have an anonymous reporting system is within the authority of the Judicial Conference, Hellman said.

“Again and again in these episodes of judges harassing employees we see that the employees are fearful of reporting the conduct because the Article III judge has so much power,” he said.

Other suggestions have come from students who may be pursuing clerkships soon themselves.

In February, law students from Yale, Harvard and Stanford sent a letter to the Judicial Conference and Chief Justice of the United States John Roberts calling for several changes that would protect identities and increase reporting.

Those suggested changes included a uniform national “climate survey” for clerks and other judicial employees to collect data about workplace conduct, and a national reporting option for clerks and employees outside individual circuits.

“The unique closeness of a chambers environment, the early career stage of most law clerks, the importance of clerking relationships to future employment, and the opaqueness of available remedies have made law clerks extremely reluctant to report misconduct,” the students said.

(Updates with interviews with Arthur Hellman and Gabe Roth, and information about the law students' letter)

To contact the reporters on this story: Madison Alder in Washington at malder@bloomberglaw.com; Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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