The federal judiciary, including law clerks and federal public defenders, are not covered by Title VII of the Civil Rights Act of 1964. This means that these judiciary employees cannot sue or seek damages for harm to their careers, reputations or earning potential, even in cases of severe mistreatment by judges exercising their positions of power.
As a potential solution, the Judiciary Accountability Act (JAA), which was introduced last Congress by the House and Senate Judiciary committees, seeks to extend protections against gender, disability, and age discrimination to over 31,000 federal judiciary employees. Importantly, the JAA aims to ensure judicial misconduct investigations could continue even when the judge under investigation resigns, retires, or dies.
At present, if a judge steps down, an ongoing investigation into their misconduct immediately ceases. This loophole allowed former Ninth Circuit judge Alex Kozinski to avoid being held accountable for numerous reported instances of harassment and abuse towards clerks, court employees, and others. The JAA hopes to address this issue and improve transparency in the judiciary by introducing a requirement for data collection and reporting on workplace culture and diversity.
Despite the progress represented by the JAA, the bill stalled in Congress last year. This stands partly due to congressional intransigence and the significant influence of the Judicial Conference lobby, an organization that opposes comprehensive judicial reform. Law clerks, though vital to the functioning of the judicial system, are left without basic workplace protections.
Judges, who exert enormous power over law clerks’ careers, should not be uniquely exempt from scrutiny under Title VII. In 1995, Title VII extended its protection to Congress and the executive branch, leaving the judiciary uniquely unregulated. The judiciary’s arguments against the JAA largely cite concerns about judicial independence, the notion of separation of powers, and a belief in effective self-policing. However, these claims remain unpersuasive given the longstanding issues with misconduct and discrimination, notably in hierarchical workplaces.
All judges, regardless of their political appointment, should be held to higher ethical standards in the treatment of law clerks. The JAA, as a way to oversee judges’ workplace conduct, is a non-partisan issue. Its goal is to guarantee an employee’s fundamental right to basic workplace protections. Moving forward, it is essential that The Legal Accountability Project and other advocacy groups keep pushing for these urgently needed reforms.
It is now up to Congress to reintroduce and pass the JAA this year. The assertion remains: No judge should be above the law, and all law clerks deserve to be treated with fairness and respect.