Document Type

Response or Comment

Publication Date

10-30-2018

Publication Title

Hearing before the Judicial Conference of the United States, Committee on Judicial Conduct and Disability and Committee on Codes of Conduct

Abstract

In late 2017, prominent Ninth Circuit Judge Alex Kozinski was accused of engaging in sexual harassment and other misconduct over a long period during his tenure as a judge. Judge Kozinski resigned, but the controversy continued. The Director of the Administrative Office of the United States Courts, responding to a request from Chief Justice Roberts, formed a Working Group to recommend measures “to ensure an exemplary workplace for every judge and every court employee.” The Working Group issued its report in June 2018.

In September 2018, the Committee on Judicial Conduct and Disability (Conduct Committee) of the Judicial Conference of the United States – the administrative policy-making body of the federal judiciary – issued a draft of proposed amendments to the rules for handling complaints of misconduct or disability on the part of federal judges. Virtually all of the substantive amendments in the draft implement recommendations of the Working Group.

The Conduct Committee held a hearing on the proposed amendments in October 2018. I testified at the hearing and submitted this statement to accompany my oral remarks. The statement is in five parts. Part I suggests some general principles to be followed in drafting the Rules and Commentaries, with emphasis on the forward-looking perspective Congress adopted in the 1980 Act. Part II discusses the definitions of cognizable misconduct and disability contained in the new Article II. Part III addresses issues of confidentiality and transparency raised by various amendments to Rules 23 and 24. Part IV comments on some of the other proposed amendments in the September 2018 draft.

Part V offers some additional suggestions for the Committee’s consideration, including one specifically dealing with workplace conduct. The idea is that each circuit would establish an interactive Web page or portal that would permit court employees to file reports of possible workplace misconduct by a judge. The reports would be similar in form and content to a complaint, but they would not be docketed as complaints. At the same time, because the reports would go to the chief judge, there would be no duplication of, or interference with, the procedures established by Congress for handling formal complaints.

The article concludes by emphasizing that the 1980 Act created a “citizen complaint procedure”, and that the system should operate in a way that promotes confidence in the judiciary among all citizens as well as “ensur[ing] an exemplary workplace.”

After the hearing, I submitted a supplementary statement elaborating on the Web portal proposal and responding to comments by other witnesses. That supplementary statement is posted separately on Digital Commons.

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