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What Has the Judiciary Learned Since Kozinski?

The courts have professed genuine interest in addressing their flaws. The question is whether they understand them.

A scant few weeks ago, a former 9th U.S. Circuit Court of Appeals law clerk named Heidi Bond posted a note on her professional website raising serious questions about the scope of confidentiality a former clerk owes to a life-tenured federal judge. In addition, Bond made allegations about the actions of her own former judge, including inappropriate sexual behavior and emotional abuse. A string of similar allegations from multiple women followed. Judge Alex Kozinski retired shortly thereafter.

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Kozinski’s retirement nominally solved one set of problems. (And it’s worth noting that Kozinski, in the limited comments he has provided on the matter, denied any wrongdoing. “I would never intentionally do anything to offend anyone and it is regrettable that a handful have been offended by something I may have said or done,” he told the Washington Post when the paper first reported allegations against him. In announcing his retirement, he reiterated this perspective.*) But what Bond was far more interested in—what she was struggling to have clarified—was the formal opinion of the federal judiciary on the issue of clerk confidentiality. On the last day of her clerkship, Bond remembers Kozinski telling her “that the beauty of judicial confidentiality was that it went two ways. As long as I never, ever told anyone what had happened in chambers with him, he would never tell anyone what had happened with me.” While Kozinski had a markedly heightened definition of the confidentiality owed to a judge, Bond wanted to comprehend whether clerks were indeed barred for life from reporting what had occurred in chambers, as she had to come believe.

Before telling her story, Bond searched the ethical canons that bind federal clerks, externs, and other employees, but she couldn’t find any clarity regarding the boundaries of her responsibility to judicial confidentiality. She also approached Judge Anthony Scirica of the 3rd Circuit, chair of the Committee on Judicial Conduct and Disability, who said he could not clarify whether Bond would be breaching the confidentiality owed to her judge without knowing what the matter involved. And since there was (and still is) some possibility that Kozinski’s actions pertained to a case, Judge Scirica ended up telling her she could not reveal what had happened without breaching confidentiality. Bond was careful to say the judge was compassionate and kind during their conversation. But ultimately, here is what he told her in response to her question: “I cannot think of any person, persons, or institution that can give you an answer on this.” (Scirica did not reply to Slate’s request for comment.)

Over a year later, having asked the same question and received the same answer from the chair of the Judicial Conference of the United States’ Committee on Codes of Conduct, Bond made the decision to go public with what had happened to her. She did not know the consequences that might result from her doing so—she had never gotten a clear answer on whether the canon was even enforceable, who would enforce it, or what the punishment might be. But as she explained in her post, she believed that using judicial privilege to shield reports of abuse was itself a form of abuse. Bond’s post concluded with her assertion that she wanted no part in future discussions about Judge Kozinski, but that she very much wanted to see the rules surrounding clerk confidentiality to be made clearer:

I want the law clerk handbook distributed by the judiciary to explicitly state that judges may not compel clerk silence on matters like the ones I have described here. I also believe that there should be a person, or persons, or an institution that clerks can turn to in order to find answers. I understand that there are reasons why no such institution exists now—judicial independence and confidentiality must be fiercely protected. I also believe that the judiciary is capable of coming up with a solution to this problem.

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On the same day Kozinski stepped down, the federal judiciary revised its clerk handbook to clarify the section that had previously said law clerks owed judges complete confidentiality regarding all case-related matters. The addition is italicized below:

Law clerks should be careful about publicly discussing their judge and chambers-related activities beyond case-related matters. For example, clerks should not publicly discuss their judge’s personal views about political, social, or other matters that could arise in litigation, nor should clerks reveal a judge’s travel plans. In general, clerks should respect and protect the privacy of their judge. However, nothing in this handbook, or in the Code of Conduct, prevents a clerk, or any judiciary employee, from revealing misconduct, including sexual or other forms of harassment, by their judge or any person. Clerks are encouraged to bring such matters to the attention of an appropriate judge or other official.

After the explosion of allegations against Judge Kozinski, the Supreme Court’s chief justice John Roberts responded swiftly and forcefully. Even though the offending judge had already resigned, Roberts took several additional steps, with the intention of addressing the issue systemically. At his State of the Judiciary speech at the close of the year, he noted that 2017 had “illuminated the depth of the problem of sexual harassment in the workplace,” and that even the judicial branch “is not immune.” He pledged that “the judiciary will begin 2018 by undertaking a careful evaluation of whether its standards of conduct and its procedures for investigating and correcting inappropriate behavior are adequate to ensure an exemplary workplace for every judge and every court employee.” Within days the federal courts had named a working group of judges and judicial officials to assess the safeguards in place within the judicial branch to protect employees from judicial misconduct. This is, all things considered, a responsible start. The question is whether it is enough.

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One of the emerging lessons of the #MeToo movement is that all the legal structures and systems in the world can be readily defanged with a superstructure of nondisclosure agreements, power differentials, and the isolation of victims. No matter how many rules are in place, any workplace that makes it too costly or too confusing to come forward will not even know about its own problems. So long as victims need to use the media instead of internal reporting channels to tell their stories, the systems cannot be said to be working. And as Joan Biskupic’s devastating investigation of how the courts have dealt with internal complaints showed, this is a system that has been broken for a very long time.

This brings us to another former employee of Judge Kozinski, an extern, bound by the same confidentiality rules as law clerks. We have agreed to grant anonymity to this person as they are at the start of a legal career and cannot risk public exposure in ways that Bond, who has built a successful career as a novelist, has done. In the weeks after Bond’s allegations were published, this former extern raised a similar question, via email with the Committee on Codes of Conduct, about the scope of the newly amended canons of confidentiality.

Along with an introduction that included a link to Bond’s post, the extern wrote to “request that the Committee give me a formal written opinion answering” a series of questions. These questions included whether the agreement Kozinski had asked the extern to sign regarding confidentiality was beyond the scope of what was permissible, and whether anyone other than Judge Kozinski could waive any aspect of the extern’s obligation to confidentiality. The extern wrote “if yes, who, and how would I go about making such a request without violating my obligations in the process?” The former employee also asked, “If I observed any improper conduct by the Judge, what should/may I have done at the time, and/or what should/may I do now?” The extern also asked whether things that had occurred in chambers could be discussed with a therapist or partner.

The initial response from the committee, on Dec. 19, 2017, was as follows:

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Dear [redacted]

The Committee on Codes of Conduct (the “Committee”) provides confidential advice to identifiable, current judicial employees through official federal government email addresses. You indicate that you are a past extern with Judge Kozinski, who has now retired from the federal bench, and your request comes from an unofficial email address. The Committee is unable to respond to your inquiry.

Sincerely,

Rebecca Smith

Chair

In response, the extern offered to supply documentation verifying the externship and requested clarity on whether someone else in the judiciary had gained responsibility for the confidentiality agreement given Kozinski’s retirement.

The extern then received a second and final response, on Jan. 22, 2018:

Dear [redacted]:

The Committee on Codes of Conduct (“Committee”) convened earlier in January for its semi-annual meeting. It was decided that the Committee cannot give you legal advice or respond further to your inquiry.

Sincerely,

Rebecca Smith

Chair

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In other words, it would seem that only a current employee of the federal courts, writing from a court-issued email account, can be given guidance about the scope of confidentiality owed a judge for the remainder of that person’s life. The chair of the committee, Rebecca Smith, did not reply to our request for comment.

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I reached out to Heidi Bond, via email, to ask whether this is what she had envisioned when she asked explicitly that clerks be made aware of their confidentiality obligations, and be afforded resources to understand what those might include. After reading the extern’s email correspondence, she concluded that the situation being described was even worse than her own experience in that this person was being denied a response seemingly based on an email address, and that, “if judicial staff owe an ongoing duty of confidentiality to the judiciary, the judiciary has an obligation to provide ongoing counseling about that duty.”

Responding to the statement by the Committee on Codes of Conduct regarding the extern’s “unofficial email address,” Bond wrote:

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Kozinski’s policy my year was that his staff could not get official court emails. His stated explanation was that clerks should not be talking to other clerks about court business—it should all go through judges. So I never got an official email address and I don’t think our externs did, either.

In retrospect, this effectively served to isolate his clerks. It meant we didn’t get any of the joint emails to the rest of the other clerks [of other judges] about nights out/gatherings/etc. It also meant we had no real way to communicate with other court staff about anything, except through him. You might want to ask this extern if that was still the case last year.

This policy—that it has to come from an official court email—would have left me without counsel even during my clerkship. Is there any requirement that all court employees get court emails? If not, this gives abusive judges an immediate out—just deny their staff official court emails, and voila! No reporting possible.

And the notion that nobody can petition for a response if they clerked for a judge who has since retired—for alleged misconduct—is even more shocking. Isn’t the correct response to anyone who wants to come forward with questions and reporting about a federal judge who has harassed and touched clerks inappropriately that such reporting is encouraged?

The extern noted in the correspondence to the committee that Kozinski had instructed his staff to use personal emails for work and had not provided official court emails. An email statement provided by Kozinski’s lawyer, Susan Estrich, confirmed that the former judge had a policy of not providing official emails to his employees:

Official email addresses are for official business only. Clerks (and other chambers staff) work in chambers, and don’t have official business to share with other chambers. The Judge does that. Judge Kozinski did not want his clerks to get in trouble using official email for personal reasons. Instead, he encouraged them to use their personal email accounts, while at work or home, to conduct personal business, and to have private conversations. As every practicing lawyer learns quickly, emails on company or government systems are NOT private. The first request any company gets from the SEC or anyone else is for the emails. When we are called in to deal with an internal problem, the first thing we do is start reading all the emails. Judge Kozinski was concerned both that his clerks not face any trouble or discipline for [misusing] official email and also that their personal privacy be protected.

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It is a cliché and a half to assert that the federal courts are a small-c conservative institution, and that change is glacial, particularly when that change opens the institution to outside scrutiny and even criticism. But any institution that demands confidentiality and creates power imbalances that are almost unimaginable in any other profession needs to address both the secrecy and power to effectuate any kind of change.

In late December, after the changes to the clerk handbook had been made, a group of more than 700 former law clerks and academics sent a letter to Chief Justice Roberts and to Judge Scirica, asking for a vastly better reporting system for law clerks and emphasizing that nothing meaningful can change so long as there is a “culture of confidentiality and power dynamics that hang over the clerkship system.” One of the central issues raised in the letter was that the clarifications used to amend the handbook had not adequately explained the specifics of reporting in a way that would empower clerks, externs, and other employees to comfortably make a report.

If former clerks are still too afraid to come forward, or must come forward while still employed by the courts, or are required to come forward through the media because no other avenue is available, the broken system is still broken. Nobody who’s at the start of a career that will rise and fall on the whims and sensitivities of judges and the courts will risk even seeking advice under these terms. Or as Bond puts it, “Official court policy really should not be, Play Russian roulette with your career to find out if you can talk to anyone.”

Correction, Jan. 30, 2018: This article originally misstated that Kozinski did not comment on his retirement.