Renee Newman Knake, a University of Houston law professor, told a joint judicial panel on misconduct that women are pressured "to endure harassment silently." She encouraged judicial leaders to survey employees to understand the extent of sexual misconduct by judges and spur accountability.
Seven Yale law students, some whom already have been hired for prestigious clerkships that will take them in to judicial chambers, also urged an assessment of the prevalence of misconduct. Law clerks may not report harassment through current channels for fear of retaliation and damage to their future career prospects, they told the panel.
The hearing by two committees of US judges
overseeing codes of conduct and behavior marked the latest development since Chief Justice John Roberts 10 months ago asserted that the judiciary "is not immune" from sexual harassment and set up a "working group" to examine the problem.
The group's recommendations were first aired last June. Tuesday's hearing offered the public a chance to weigh in. The full Judicial Conference, a 27-member policy-making arm of the federal courts led by Roberts, would ultimately decide what changes should be made.
The chief justice established the working group last December, amid a swelling #MeToo atmosphere, after the Washington Post reported claims from former law clerks and other staffers that US Appeals Court Judge Alex Kozinski had engaged in sexual harassment.
Kozinski, who had been subject to earlier misconduct allegations in 2009, retired in December after the new claims were published. A formal misconduct complaint was filed, but judicial officials declined to investigate because the judge had stepped down. Kozinski denied the allegations.
A separate high-profile complaint is currently pending against new Supreme Court Justice Brett Kavanaugh, arising from his recent testimony before the Senate Judiciary Committee. It is unlikely that the merits of that complaint would be addressed. The 1980 federal ethics law that governs complaints does not cover Supreme Court justices.
There were a few references to those two jurists Tuesday, but most of the give-and-take over nearly five hours addressed the intricacies of judicial codes of conduct.
A CNN special report in January, examining about 5,000 judicial orders arising from misconduct complaints over the past decade, found that courthouse employees and others with potentially valid grievances against judges rarely use the judiciary's misconduct system. Most of the complaints are filed by disgruntled litigants.
A group set up by Roberts has since recommended that harassment be formally covered by misconduct rules and officially tallied in annual statistics made public. It has also clarified that law clerks and other courthouse employees' can report judges' misbehavior without violating their obligations of confidentiality.
Many witnesses on Tuesday addressed the secrecy of the current misconduct screening system, by which complaints are channeled to chief judges in the country's 13 circuit courts, little is known about judges' investigations of grievances and final orders are cryptically written.
Paul Horvitz, a lawyer who filed one of the complaints now pending against Kavanaugh, said it was difficult to track judges' consideration of complaints. Horvitz also noted that the DC Circuit revealed the misconduct filings regarding Kavanaugh on the October 6, Saturday morning of his Senate confirmation vote.
"This does not inspire confidence," he told the panel led Tuesday by US Appeals Court Judges Ralph Erickson, of the St. Louis-based 8th Circuit, and Anthony Scirica, of the Philadelphia-based 3rd Circuit.
Appellate lawyers Kendall Turner and Jaime Santos, former judicial clerks who formed a group aimed at workplace accountability after the Kozinski report, asserted that the judiciary should not drop misconduct investigations when a judge steps down.
They recommended that judicial officials pursue what actually happened and whether other judges had ignored or enabled alleged misconduct.
Asserted Santos, "Judges are in an incredible position of power in American society and should be held to a higher standard of disclosure than most."