We Must Close the Loophole Helping Judges Evade Accountability

Berating judicial law clerks as “stupid” and “useless” and demeaning them for perceived mistakes. Forcing them to watch pornography. Firing them for no stated reason. Concealing a neurological condition that prevents a judge from serving.

In each instance of judicial misconduct over the past decade, these perpetrators retired or resigned from judicial service without facing discipline—their reputations, pensions, and legal careers intact. Fortunately, a new bill, the Transparency and Responsibility in Upholding Standards in the Judiciary Act, would close the disturbing legal loophole that allows judges to step down to evade accountability for misconduct.

Under the longstanding Judicial Conduct & Disability Act, the federal law governing judicial discipline, a judge’s retirement, resignation, or death halts investigation. Judges insist internal self-policing works, despite contradictory evidence. The judiciary benefits from a broken disciplinary system lacking checks on judicial abuses of power.

Life-tenured judges wield total power over recent law graduates—law clerks—the courts’ backbone. While secrecy in judges’ chambers aims to protect impartiality, abusive judges may use it to silence clerks.

And when clerks do speak up, the judiciary protects their own. On March 31—the same day the judiciary released its 2023 workplace conduct survey, indicating most mistreated employees don’t report mistreatment due to fear of retaliation—now-former Minnesota federal bankruptcy judge Kesha Tanabe resigned amid misconduct allegations.

Tanabe’s resignation effectively ended any potential investigation into her alleged misconduct. A clerk filed a complaint before the resignation, but some in the US Court of Appeals for the Eighth Circuit convinced the clerk to withdraw it because the judge was resigning anyway.

That’s not how accountability works.

The TRUST Act, introduced in May by Georgia Rep. Hank Johnson (D), is a common-sense, nonpartisan solution to historically intractable problems. It amends the JC&D Act to clarify that a judge’s departure is no longer grounds to dismiss a complaint.

Considering how few complaints are filed by law clerks against judges each year—typically between one and three—the judiciary should make every effort to thoroughly investigate complaints, rather than sweeping misconduct under the rug by encouraging judges to leave quietly. In no other workplace does a misbehaving employee’s departure conclude an investigation, nor absolve them of blame.

The TRUST Act faces an uphill battle in Congress, considering the headwinds against holding the judiciary accountable. Yet both Democratic and Republican judicial appointees mistreat both liberal and conservative clerks, so this type of workplace misconduct by judges should disturb everyone.

In a political climate where bipartisan consensus is rare, holding judges—both Democratic and Republican—accountable for abusing their power should galvanize members across the ideological spectrum.

History of Overreach

Many have lost faith in the courts. A judicial branch lacking basic workplace protections—and justice for judiciary employees—can’t administer fair and impartial justice. Judiciary employees deserve the same rights as other public and private sector workers. And judges should be held to the highest ethical standards, not the lowest.

Tanabe isn’t the first judge to step down to evade accountability. In 2016, Puerto Rico federal judge Jose Fuste retired amid misconduct allegations. Then, in 2017, former Ninth Circuit judge Alex Kozinski resigned after allegedly sexually harassing dozens of employees over decades. Just a year before Tanabe resigned, former judge Wilhelmina Wright retired from the same court amid misconduct allegations. All these judicial departures ceased investigations.

Former judges still enjoy pensions and benefits. Like many former judges who return to private practice, Kozinski practices law. Judges rarely step down, given the powerful nature of the role, often serving long beyond their capacity.

Misconduct complaints by law clerks against judges are rare; only two were filed in 2024, three in 2023, and just one in 2022. For context, at least 1,400 federal judges, and several thousand clerks, work in the courts. Harassment in the judiciary isn’t rare, but it’s rarely discussed, let alone formally reported.

The headwinds against reporting are enormous, because clerks aren’t legally protected against retaliation. That’s because the federal judiciary is exempt from all federal anti-discrimination laws, including Title VII of the Civil Rights Act of 1964.

Judges, tasked with interpreting the law, are themselves not subject to those same laws. Judges harass and retaliate against clerks with impunity, since clerks can’t sue.

Complaint numbers against judges are suspiciously low because court administrators dissuade clerks, instead pushing “informal” resolution. While the judiciary dubiously claims these negligible numbers show a lack of misconduct, they signal reporting mechanisms are broken or nonexistent, and employees do not feel safe reporting misconduct.

Informal resolution—lacking in transparency, public accountability, and discipline—may be best for the court’s reputation, but not for clerks. Mistreated clerks regularly tell me they haven’t and wouldn’t report misconduct because they don’t believe their concerns will be taken seriously or robustly, impartially investigated.

Broader Steps

The TRUST Act is a small part of a broader fix—the Judiciary Accountability Act—reintroduced in 2024. The JAA would finally extend federal anti-discrimination protections, including Title VII of the Civil Rights Act and the Americans with Disabilities Act, to more than 30,000 exempt federal judiciary employees, enabling them to sue and seek financial recourse.

And it would legally protect employees against retaliation for reporting misconduct—the biggest reason clerks don’t file complaints. The JAA mirrors similar protections extended to congressional and executive branch employees 30 years ago.

A misbehaving judge’s departure alone isn’t the solution to this lack of accountability because it enables the judiciary to avoid addressing the root causes of persistent misconduct. And for every judge who steps down, many more don’t.

A combination of judiciary stonewalling and intransigence and, historically, congressional inaction, have precluded reform. While stakeholders—including some on Capitol Hill who haven’t co-sponsored the TRUST Act—tell me judicial accountability is “too hard” or other priorities are more urgent, dozens more judges abuse their power with impunity and destroy clerks’ lives and careers.

Law clerks can’t wait another year. Closing the Judicial Conduct & Disability Act loophole sends a message that Congress—if not the judiciary—takes misconduct seriously.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Aliza Shatzman is the president and founder of the Legal Accountability Project, a nonprofit working to ensure that judicial law clerks have positive clerkship experiences, while extending support and resources to those who don’t.

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