The allegations of sexual harassment that led to the resignation of 9th Circuit Judge Alex Kozinski show the need for better institutional mechanisms to protect law clerks and deal with inappropriate behavior by judges.
The Constitution bestows on federal judges life tenure. They hold their positions until they die, retire or are impeached and removed from office. This job security helps ensure that judges decide cases based on their best understanding of the facts and law of the matters before them, not to please the voters at a coming election. Many studies have shown that judges who are electorally accountable are much less likely to issue unpopular rulings, such as in favor of those who are on death row. It is impossible to imagine elected judges in Southern states striking down the laws that mandated segregation or enforcing the Supreme Court’s desegregation orders.
But judicial independence comes at a cost: the lack of checks on federal judges who behave badly or simply no longer should be on the bench. The reality is that there are federal judges who are widely regarded as no longer able to handle the position.
The Judicial Conduct and Disability Act of 1980 creates a procedure where anyone can file a complaint against a federal judge or an employee of the federal government on the basis of disability or misconduct. Under it, a panel of judges is convened to investigate complaints. The sanctions can be private or public censure or suspension of assignment of future cases to the judge. Judges investigating the matter also can deem a judge to be disabled or request that the judge voluntarily retire. 9th Circuit Chief Judge Sidney Thomas asked United States Chief Justice John Roberts to appoint judges to investigate Kozinski, a process that was made unnecessary when Kozinski resigned.
Experience shows, though, that this is not enough. To begin with, there needs to be a mechanism for law clerks to report misconduct of the judges for whom they work. More than once, I have had a former student call me during a clerkship after being subjected to sexual harassment by a judge or after witnessing serious unethical behavior.
They want to know what to do and where to turn. I have been at a loss of what to tell them. They can quit, but it is highly unusual to leave a clerkship in the middle of the year and it would be a line on their resumes that would raise questions.
A mechanism should be created where clerks can report misconduct. The difficulty, though, is that they often will be unwilling to do so. A clerkship is a very prestigious position, and clerks fear that angering their judge can hurt their career prospects. A judge’s chambers is a small law office and it would be easy for a judge to know who complained. That said, there still must be better mechanisms to facilitate clerks reporting misconduct.
The more general problem is how to increase the accountability of federal judges without compromising independence. Judges have proven unwilling to confront their colleagues who are no longer capable of adequately handling the job.
A few years ago, I argued a case in the 9th Circuit involving the question of whether an Arizona law prohibiting Mexican-American studies courses was impermissibly motivated by racial hostility. One of the three judges, once a brilliant law professor and judge, was in his 90s and clearly was not following the argument (nor the others held that day).
Toward the end of my argument, in a quite agitated tone, he was upset that I was accusing the lower court judge of having been racist. I explained that he misunderstood, that the case was about whether the Arizona Legislature acted improperly. The judge voted in my favor and I prevailed in the case, but it was apparent to all that he no longer should have been on the bench.
This is not unique. I understand why judges do not want to raise issues about their colleagues. But they must do so. Judges and lawyers must be willing to raise the problem of judges who are no longer competent or who they believe to be engaging in misconduct. And then the judges must be willing to face the difficult task of taking action against other judges.
Judicial independence has served the country well. But there also must be more judicial accountability.
Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law, firstname.lastname@example.org.