< Victims of harassment by federal judges often find the judiciary is above the law

LEILA FADEL, HOST:

Millions of people who experience harassment on the job are covered by federal workplace protections. That includes employees at private companies, nonprofit groups and even the U.S. Congress. But that's not the case for some 30,000 people who work for the federal judiciary who have few safe ways to anonymously report abuse. NPR justice correspondent Carrie Johnson reports.

CARRIE JOHNSON, BYLINE: Four years ago, Olivia Warren made a choice that would change her life. The Harvard Law School graduate testified before Congress about harassment she suffered when she clerked for a federal appeals court judge.

OLIVIA WARREN: I would do it again. I think that it came at enormous personal cost, and there are ongoing costs to my testimony. But in the story of my life, it is something that I justify.

JOHNSON: For 12 long minutes, she told House lawmakers about her experience working for Stephen Reinhardt, a prominent judge in California who has since died. He left a drawing of women's body parts at her desk, demeaned her appearance and questioned her husband's masculinity. Her testimony came during the aftershocks of the #MeToo movement, which exposed mistreatment by powerful men in corporate America, the entertainment industry and the media. Looking back now, Warren says she would not recommend others follow her path and speak out about abuse by federal judges. In fact, she says...

WARREN: I'll also say that I advise people unequivocally not to clerk at all. And I do that because I think the risk is far too great.

JOHNSON: Because the risks are too great. Those risks include being blocked from other job opportunities in the legal world and facing retaliation for making complaints against federal judges. Those judges enjoy lifetime tenure and operate with few limits on their power. For young lawyers, clerkships can pave the way for lucrative jobs at law firms or universities. Again, Olivia Warren.

WARREN: It remains a very strong marker of what your early success looked like, and they are considered foundational markers of success in the legal profession.

JOHNSON: So a judge's word of recommendation or word of warning carries enormous weight. Gabe Roth is executive director of Fix the Court. His watchdog group tries to increase accountability in the federal courts.

GABE ROTH: I think the judiciary, in a lot of ways, sees itself as above the law. It sees itself as separate and different.

JOHNSON: Roth says more than 900 federal judges are spread across the nation with different ways of reporting discrimination, harassment or retaliation, depending on the rules for a particular region of the country. But there's one common thread. The federal judiciary is exempt from Title VII of the Civil Rights Act, the federal law that protects employees and job applicants from discrimination. Jeremy Fogel served as a state and federal judge for 37 years. He explains why judicial employees have been considered different.

JEREMY FOGEL: The history of that distinction is separation of powers and the concerns for judicial independence and worrying that Congress would overregulate how the judiciary conducts its business.

JOHNSON: Fogel, who now runs the Berkeley Judicial Institute, says he does not think Congress necessarily needs to act.

FOGEL: But I think if you don't legislate something, then the judiciary has to be proactive.

JOHNSON: Fogel says sexual abuse in the judiciary is not pervasive. More common, he says, is bullying and making unreasonable demands. He also credits the courts for the steps they've taken to date to make things better for clerks and other workers. The code of conduct policy for federal judges says they should not engage in or tolerate harassment or abusive behavior. In 2017, Chief Justice John Roberts appointed a working group after #MeToo allegations emerged in the federal courts. He also created the Office of Judicial Integrity to monitor workplace issues and serve as a source for what he called confidential guidance and counseling. Today, that office has just three employees. The judiciary also publishes annual reports about complaints against judges, usually no names, just numbers. Gabe Roth monitors them for Fix the Court. When it comes to sexual harassment, Roth says...

ROTH: Yeah, we're talking about somewhere between zero and six formal complaints against judges a year. That is not a lot. That seems to be on the low end of what's actually happening.

JOHNSON: Then he waits for courts to say what those judges did to tell if any of the complaints has merit.

ROTH: Whatever disciplinary measures are happening - ethics training, being temporarily taken off cases - it's almost impossible to find out because it is very easy for the judiciary to bury it and for the public to maybe never even learn about it.

JOHNSON: A rare glimpse into the process emerged last month when the courts resolved a two-year-old complaint from a law clerk. An unnamed federal judge agreed to receive counseling and watch training videos after a clerk reported a hostile workplace environment. The clerk was offered the chance to transfer into another job. Later, an investigation by the judiciary uncovered concerns about the judge being overly harsh to other clerks, too. Glenn Fine served as inspector general, an independent watchdog at the Justice Department and the Pentagon. He says the judiciary needs a watchdog, too.

GLENN FINE: Self-policing is not working. It is hard for judges and anyone to investigate their colleagues.

JOHNSON: The toughest sanction against a federal judge is impeachment. But it's been 14 years since a judge was impeached and convicted for corruption and false statements. Most discipline issues of the judiciary are handled by the judiciary. And it's common for judges to resign while they're under investigation, which generally stops the probe and allows them to collect retirement benefits. In 2017, Alex Kozinski abruptly retired from the Ninth Circuit Appeals Court after more than 15 women accused him of sexual harassment. Kozinski collected his pension. He's now practicing as a lawyer in the same courts he once dominated as a judge.

WARREN: I don't think that anything has changed.

JOHNSON: Olivia Warren, who complained about a different Ninth Circuit judge, has shied away from even filing briefs in that court where she once clerked. Warren says she continues to hear harrowing stories from clerks all over the U.S. who are too afraid to report judges. Since her testimony, she thinks things have gotten worse because of what she calls window dressing by the judiciary.

WARREN: I still have not received an apology from the judiciary about what happened to me. I don't expect one. I'm no longer holding my breath.

JOHNSON: Congress has considered legislation but failed to act so far to make judges more accountable. Congressional sources told NPR a new push for legislation is likely to come later this year.

Carrie Johnson, NPR News, Washington.

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