Attorney Articles January 08, 2018

Next Steps in the Federal Judiciary’s #MeToo Moment

Goodwin Associate Jaime Santos co-authored a letter, signed by more than 850 individuals, outlining five suggested actions to address workplace harassment within the federal court system and offered continued support to work directly with the judiciary to develop effective solutions to the problem. The letter was published in the January 18, 2018 issue of the National Law Journal

After months of high profile accounts of sexual assault and harassment in the workplace, including serious accusations against a prominent member of the federal judiciary, a group of current law clerks in December wanted to propose changes to the way the judiciary addresses harassment and confidentiality. Some of those current clerks had encountered misogynistic behavior or faced harassment at their jobs, while others simply wanted to ensure that the recent allegations were not brushed aside as isolated incidents.

Because current law clerks are limited in their ability to participate in public advocacy, they sought assistance from former clerks who could spearhead the effort. A law professor connected the group to Jaime Santos, a former Ninth Circuit clerk, and three other former clerks soon joined the initiative: Kendall Turner, Sara McDermott and Claire Madill. While we all had wonderful experiences clerking for our judges, we readily identified deficiencies in the judiciary’s policies and processes for addressing harassment. Many of these deficiencies stem from power dynamics inherent to the job, as judges have an enormous influence on their employees’ lives. For law clerks in particular, a judge can serve as a lifelong mentor and can provide critical recommendations for post-clerkship jobs. Reporting a judge’s misconduct is difficult, especially because the current policies regarding harassment are opaque (at best).

We worked together to craft a letter offering modest proposals to address these deficiencies. While letter initiatives are not always the most effective form of advocacy, we figured that one or two hundred current and former clerks wouldn’t be easy to ignore. We were heartened to receive support well exceeding that original estimate—within just a few days, we amassed nearly 700 signatures, including from some members of the judiciary. As of today, more than 850 individuals have signed the letter, including more than 650 former or current law clerks.

As discussed in our letter, we believe significant changes are needed to address potential harassment of federal judicial employees. Employees need concrete guidance about what constitutes harassment and how to report it. The federal judiciary must commit to protect individuals who report harassment, to form a working group that will evaluate these issues in a comprehensive way and to implement changes that will be lasting and effective, given the unique environment working in a judge’s chambers. We have also asked the judiciary to create a confidential, national reporting system (or at least standardized procedures within each circuit) for employees to report harassment. The current procedures for reporting misconduct are often unwritten and unknown to employees. The procedures that do exist remain informal, meaning that employees do not know what will happen to any complaints they file. These procedures do little to encourage employees to report harassment, much less to reassure them that their reports will be handled fairly.

Indeed, some of these recommended changes are already underway. The Law Clerk Handbook now encourages employees to report harassment and states that nothing prevents them from doing so (though it does not yet make clear how or to whom employees can report harassment). Chief Justice John Roberts has asked the Administrative Office of the U.S. Courts to establish a working group to examine the sufficiency of current safeguards protecting federal judicial employees from wrongful conduct. And the Chief Justice committed the judiciary to evaluating its standards of conduct and its procedures for investigating and correcting inappropriate behavior in his 2017 State of the Judiciary Report.

We do not expect everything to change overnight. Even more than we are trying to change the federal judiciary’s policies and procedures regarding harassment, we are trying to change its culture. Doing so will require more than training, written guidance, and a working group. It will require years of continually revisiting and revising procedures for handling harassment and reexamining our own unconscious biases.

It will also require formal involvement by key stakeholders in efforts to evaluate and improve the judiciary’s policies and processes. So far, while several Circuits have announced the formation of working groups, none has included current or former law clerks as members. But their inclusion is key to ensuring that any new policies address the current barriers to reporting; merely soliciting clerks’ input is not enough.

Although recommending changes to improve the judiciary’s policies and reporting processes might seem relatively uncontroversial, the women spearheading the group had to think critically before becoming publicly involved in this effort. We (Kendall and Jaime) both work at large law firms. Some have been surprised that we were willing and able to write a letter regarding sexual harassment in the legal profession and highlighting some shortcomings of the federal judiciary (which itself says quite a bit about the discrimination and misogynistic attitudes that often pervade the industry). But our firms, our judges and our mentors have been resolute in their support of us and this initiative. We hope that our efforts will result in some change for the better—within the judiciary and the legal profession as a whole.

Jaime Santos is a former law clerk to Judge George King of the U.S. District Court for the Central District of California and Judge Raymond Fisher of the U.S. Court of Appeals for the Ninth Circuit. Kendall Turner is a former law clerk to Chief Judge Merrick Garland of the U.S. Court of Appeals for the D.C. Circuit and Stephen Breyer, associate justice of the U.S. Supreme Court. Both practice law in Washington, D.C.