Federal judges staring down investigations about sexism or misconduct in office have used a loophole: Retire or resign, and the investigation goes away. A new bill could end the practice.
Congressman Hank Johnson, a Georgia Democrat who introduced the bill, said judges and courts shouldn’t “sweep bad behavior under the rug.” Nine other Democrats, including high-profile New York representative Rep. Alexandria Ocasio-Cortez, are cosponsoring the bill.
The two-page proposal would add language to federal laws around judicial complaints, saying investigations should occur “without regard to the resignation, retirement… or death of the judge whose conduct is the subject of the complaint.”
Aliza Shatzman founded the Legal Accountability Project after experiencing what she described as harassment and retaliation while working for a judge, said she worked with Johnson’s office on the bill. She said people in the federal judiciary have told her that their hands are tied once a judge leaves.
“This would untie those hands,” she said. “Theoretically, it’s something they should support.”
She hopes Republicans will support the bill because judicial misconduct doesn’t have a political party. “Both Democratic and Republican appointees mistreat their clerks,” she said.
The bill faces uncertain prospects if it doesn’t get GOP support. House Republicans, including the judiciary committee, have been focused on passing legislation to enable President Donald Trump to crack down on immigrants.
Richard Painter, a government-ethics expert formerly affiliated with one of the groups backing the bill, said it’s possible that the judiciary would oppose the measure because judges see themselves as capable of policing their own conduct.
“You can’t just say separation of powers means there’s no checks and balances,” he said. “I don’t buy those arguments, but you might hear those arguments.”
Johnson’s office said judges accused of sexual harassment have resigned, including José Antonio Fusté in 2016 and Alex Kozinski in 2017, before the disciplinary process could run its course. More recently, a federal judge in Alaska, Joshua Kindred, resigned after an investigation found that he made inappropriate sexual comments to his staff and began a sexual relationship with one of his clerks after she became a prosecutor.
Kozinski has said it was “never my intent” to make his clerks uncomfortable. Business Insider was unable to contact Fusté.
Historically, judges and their clerks have had close relationships; a 1992 law review article described how one judge’s clerks would spend the night at his house and babysit his grandchildren. There is now much more scrutiny on such relationships and the potential for overwork and exploitation of clerks and staff.
Sometimes, the allegations rise to the level of official complaints, and courts take action. Judge Pauline Newman, a member of a federal appeals court that hears high-stakes intellectual property disputes, is fighting for her job after some employees expressed concern about her mental health. Several other lawyers and judges have said Newman remains sharp, and accused other judges of overreacting.
Last year, the legal reporter David Lat reported that a Trump-appointed judge in Florida who was criticized over decisions she made in one of his criminal cases lost two clerks over heavy workloads and what one clerk told friends was “mean” conduct. And Shatzman wrote on the website Above The Law that a federal judge in Minnesota left the bench after being accused of mistreating and retaliating against employees.
A representative for Republicans on the House judiciary committee didn’t respond to a request for comment.
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