Workplace Protections for Federal Judiciary Employees: Flaws in the Current System and the Need for Statutory Change

Testimony Courts

Workplace Protections for Federal Judiciary Employees: Flaws in the Current System and the Need for Statutory Change

March 18, 2022 20 min read
Sarah Parshall Perry
Senior Legal Fellow, Meese Center
Sarah Parshall Perry is a senior legal fellow for the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.
It is one of the chief merits of the American system of constitutional law that all of the powers entrusted to government are divided into three branches and that the functions appropriate to each of these branches of government are vested in separate bodies of public servants. But this system—as the Supreme Court has held—requires for its protection that the lines that separate and divide those branches be broadly and clearly defined. Passage of H.R. 4827 would threaten both the independence of the judiciary and the separation of powers and would irreparably blur those lines.

 

Sarah Parshall Perry

Legal Fellow
Edwin Meese III Center for Legal and Judicial Studies
The Heritage Foundation

Chairman Johnson, Ranking Member Issa, and members of the committee:

Thank you for giving me the opportunity to appear before you today. I commend the committee for holding a hearing on this important topic.

My name is Sarah Parshall Perry. I am a Legal Fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation. I am also a former senior counsel to the Assistant Secretary for Civil Rights at the Department of Education, a former in-house counsel and business director for a Maryland corporation, and a former plaintiff’s lawyer specializing in employment discrimination law and Title VII, among others.

In December 2017, the United States Court of Appeals for the Ninth Circuit learned of multiple allegations of sexual misconduct against then-Judge Alex Kozinski. He resigned 10 days later.REF Almost immediately thereafter, on December 20, 2017, Chief Justice John G. Roberts, Jr., asked the Director of the Administrative Office of the United States Courts (AOC) to establish a working group to examine the sufficiency of the safeguards currently in place within the judiciary to protect court employees from inappropriate conduct in the workplace. The goal of this undertaking was to “ensure an exemplary workplace for every judge and every court employee.”

On January 12, 2018, the Director of the AOC announced the formation of the Federal Judiciary Workplace Conduct Working Group, consisting of eight experienced judges and court administrators from diverse units within the judiciary.REF Its year of work resulted in revisions to its codes of conduct, a strengthening of its internal procedures for identifying and correcting misconduct, and an expansion of its training programs. These recommendations were adopted by the Judicial Conference, the judiciary’s policymaking body, in 2019, and the Working Group's monitoring of progress toward rectifying employee misconduct continues to this day.

Three years of intensive work aimed at eliminating harassment, bullying, and discrimination within the federal Judiciary has resulted in new and significant expansions of employee safety and reporting measures.

Just a few short weeks ago, in December 2021, Chief Justice Roberts issued his year-end report on the federal judiciary in accordance with his role as Chief Justice of the Judicial Conference of the United States, an entity on the cusp of its centennial anniversary. In it, he identified findings of the Judicial Conference after a thorough review of the federal judiciary. The Chief Justice noted that:

We are duty-bound to strive for 100% compliance because public trust is essential, not incidental, to our function. Individually, judges must be scrupulously attentive to both the letter and spirit of our rules, as most are…. Briefly stated, the Working Group recognized the seriousness of several high-profile Incidents but found that inappropriate workplace conduct is not pervasive within the Judiciary.REF

He further discussed the judiciary's need for independence, adding: “The Judiciary’s power to manage its internal affairs insulates courts from inappropriate political influence and is crucial to preserving public trust in its work as a separate and coequal branch of government.”REF

Now this chamber is advancing H.R. 4827, the Judiciary Accountability Act of 2021. This bill, which would overhaul the entire judiciary, threatens to taint its integrity and its independence. The fact that it was drafted and introduced without any input from the judiciary whatsoever simply goes to prove that point. As the Judicial Conference’s year-end report clearly demonstrates, the judiciary is well aware of the problems that recently surfaced, is making sincere and concerted efforts to address them, and has already implemented some much-needed reforms to address employee misconduct within the judiciary.

Of course, this body and the witnesses present here today are genuinely committed to eliminating harassment and discrimination within the judiciary. Those perpetuating hostile cultures within their places of employment need to be rooted out, and the judicial branch is no exception.

But the very premise of this hearing—that the judiciary is unaccountable and permits rampant discrimination within its ranks that leaves victims without sufficient recourse—runs counter to all available evidence and proposes a solution to the problem of discrimination that is constitutionally suspect.REF

I. The Separation of Powers Problem

Article III of the Constitution provides:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.REF

Particular to the nature of the three branches of government is that each operates separately from the other two. To ensure this, Congress has empowered the Judicial Conference and the circuit judicial councils to respond to complaints of judicial misconduct. In this way, Congress is prevented from meddling in the internal administration and workings of the judiciary.REF Judicial independence is a foundational tenet of the judiciary as the third branch of government.REF The judiciary absolutely must be independent of the executive and the legislative branches to ensure the absence of political influence so that judges can render decisions legitimately, transparently, and without partiality.

However, among its many provisions, H.R. 4827 would impose upon the third branch a Commission on Judicial IntegrityREF to oversee allegations of workplace misconduct and administer relief. Its membership would consist of executive appointees, individuals recommended by the Equal Employment Opportunity Commission (EEOPC) and U.S. Commission on Civil Rights, and other purported “experts” recommended by Senate majority and minority leadership.REF

The commission would be staffed with two federal judges, but only after consultation and approval of the Chair and Vice Chairs of the Commission on Judicial Integrity, all three of whom are selected by the President. Four other judicial branch employees would also serve but also would be selected solely by the chair and vice chairs of the commission. The chair and vice chairs would serve for five years, and any commissioner could be removed in the event of permanent incapacity, inefficiency, neglect of duty, or malfeasance. Since “inefficiency” and “neglect of duty” are not defined, the potential for subjectivity regarding removal of commission members is readily apparent.

The bill also calls for a special counsel for equal employment opportunity, to be appointed by the commission for a term of five years, who would be tasked with carrying out his or her duties in consultation with the House and Senate Judiciary Committees. Likewise, the bill calls for the establishment of an Office for Employee Advocacy, whose director, like the special counsel, would report to the House and Senate Judiciary Committees.

An executive branch appointee tasked with overseeing the judicial branch who would report to the legislative branch presents perhaps the quintessential separation of powers dilemma. The mind reels at the potential for political encroachment into the judiciary—the one branch of government designed to be apolitical.

The separation of powers doctrine was instituted not with the idea that it would promote governmental efficiency, but to establish a bulwark against tyranny.REF A breach in the separation of powers is permissible only if (1) explicitly authorized by the ConstitutionREF or (2) shown to be necessary to the harmonious operation of workable government.REF H.R. 4827 satisfies neither condition.REF

The inherent authority vested in federal courts by Article III of the Constitution, grounded in the separation of powers doctrine, may be exercised even in face of contrary legislation.REF Therefore, even if the bill is passed, the judiciary might simply ignore H.R. 4827 as an appropriate exercise of its inherent power and independence.

As the Supreme Court said in United States v. Richard Nixon, perhaps the seminal case addressing the separation of powers doctrine:

Notwithstanding the deference each branch must accord the others, the “judicial Power of the United States” vested in the federal courts by Art. III, § 1, of the Constitution can no more be shared with the Executive Branch than the Chief Executive, for example, can share with the Judiciary the veto power, or the Congress share with the Judiciary the power to override a Presidential veto. Any other conclusion would be contrary to the basic concept of separation of powers and the checks and balances that flow from the scheme of a tripartite government.REF

Understanding these principles, this body's foray into legislative and executive oversight of the third branch seems more like a hostile takeover.

II. Duplicative and Unnecessary

Assuming, arguendo, that H.R. 4827 were to survive a challenge to this constitutional defect, the bill still would merely duplicate the extensive protections that have already been put in place for judicial employees, including protections against discrimination, harassment, retaliation, and abusive conduct. The “workplace misconduct prevention program” proposed by this bill would result in the creation of more administrative bodies, more wasteful spending, and a list of onerous regulations geared at interfering with the internal operations of the judiciary.

As a result of the Workplace Conduct Working Group’s 2018 findings and recommendations (including the adoption of clear and consistent workplace conduct policies, the offering of additional avenues to report misconduct, and the providing of more workplace conduct training), the Judicial Conference amended the Code of Conduct for U.S. Judges, the Code of Conduct for Judicial Employees, and the Judicial Conduct and Disability Act Rules. In 2019, it also completely revamped its Employment Dispute Resolution (EDR) plan.

Multiple processes to identify, report, and rectify judicial employee misconduct already exist within the judiciary itself. Judicial branch employees have whistleblower protection; newly expanded protections against “abusive conduct” (even when not discriminatory or based on protected categories); multiple avenues to report workplace concerns; clarified confidentiality policies to remove potential barriers to reporting; and much more.

Among the many employee safeguards for judicial employees, many updated as recently as 2019,REF are:

  • Simplification and expansion of the options for addressing wrongful workplace conduct as laid out in the updated (2019) EDR.REF
  • Additional prohibitions against Abusive Conduct that protect employees even when the misconduct is not discriminatory.REF
  • Express discrimination and harassment prohibitions and workplace protections available to non-judicial employees in other workplaces.REF
  • Emphasis in the Codes of Conduct and Judicial-Conduct and Judicial-Disability (JC&D) Rules that judicial employees and judges must affirmatively report potential workplace misconduct upon learning of it, even if as bystanders.
  • Clarified confidentiality policies to remove potential barriers to reporting and to encourage reporting, even for chambers staff, who are bound by other confidentiality requirements in the course of their work.
  • Multiple avenues to report workplace conduct concerns, including anonymously, to designated points of contact within or outside the employing office. This includes a multi-layer network of personnel—at the national, circuit, and local court levels—to provide confidential and impartial advice and guidance to judicial employees, managers, and judges.
  • A formal Employment Dispute Resolution complaint process and an informal (“assisted resolution”) complaint process with an increased user-friendly structure for both (including flow charts that explain EDR rights and options).
  • Annual training for all EDR coordinators, judges, and judiciary employees on workplace conduct protections and processes.
  • A broad range of publications, online resources, and in-person training programs from the Federal Judicial Center (FJC) to supplement court-sponsored training and materials.
  • Data collection across the judiciary on the type and number of formal and informal EDR complaints, as well as judicial conduct and disability complaints and actions under the JC&D Act.
  • Continuing operation of the Working Group, in collaboration with Judicial Conference committees and Administrative Office advisory groups, to maintain constant assessment of workplace policies and procedures.

In addition to the foregoing, and as with other government officials, federal judges, who are permitted to “hold their Offices during good Behaviour,”REF may be removed following impeachment and conviction for “Treason, Bribery, or other high Crimes and Misdemeanors.”REF Historically, the impeachment power has been used by Congress against judges in cases of serious ethical or criminal misconduct, including making false statements, showing favoritism toward litigants, being intoxicated on the bench, and abusing the contempt power.REF No matter the judicial complaint procedure or other available employee remedies, impeachment always remains an avenue for the Senate should concerns about ethical or criminal conduct arise. Likewise, the Constitution does not immunize sitting federal judges from criminal prosecution prior to their removal from office by the impeachment process.REF In short, misbehaving judges can be held accountable by the judiciary itself, by the Congress, and, in extreme cases, by the criminal justice system.

H.R. 4827, however, would modify 28 U.S.C. § 351(f)(1) by continuing the judicial complaint process even if a judge has retired, resigned, or died, meaning literally that H.R. 4827 would ensure that employee complaints would follow federal judges to the grave.

As the wave was cresting on the #MeToo movement, the Judicial Conference of the United States, led by Chief Justice Roberts, began a multi-year effort to amend and enhance procedures designed to secure the judiciary’s commitment to a workforce free of discrimination and harassment with guarantees of security for judicial employees that often exceed those available to their civilian counterparts. Among those advances are the establishment of a national Office of Judicial Integrity;REF circuit-wide Directors of Workplace Relations; multiple avenues for the reporting of misconduct; revised and enhanced workplace dispute policies; tightened ethics, reporting, and discipline rules; and more.

If these developments don’t evidence the judiciary’s commitment to a workplace that is consistent with the principles of employee respect and dignity, it’s hard to imagine what would.

III. Affirmative Action Plan in the Judiciary

Even as the Supreme Court has just granted review in a pair of casesREF in which the justices have been asked to overrule the use of racial preferences in admissions policies at institutions of higher education, it is rather ironic that this body would consider legislation that would require federal judges to produce annual reports on the diversity not only of their staffs, but also of those they interview for employment. This would create a backdoor effort to bring racial preferences and gender-based and sexual orientation–based hiring into the federal Judiciary.

Specifically, H.R. 4827, § 4 (f)(8) requires the proposed Judicial Integrity Commission to submit to Congress a report that includes the number of individuals who were interviewed and hired for positions within the judiciary during the previous year. The data are to be disaggregated by sex, sexual orientation, gender, race, ethnicity, and disabilityREF with year-to-year trends identified. Moreover, the Special Counsel to the Equal Employment Opportunity Commission is required to provide an annual workplace culture assessment that includes indicators of positive and negative trends for maintaining a safe, respectful, diverse, and inclusive work environment.REF

Such so-called diversity-driven efforts are in tension with Title VII of the Civil Rights Act of 1964 and the EEOC’s guidance on the same,REF which makes it illegal for covered employers to make employment decisions “because of” an individual’s race, color, religion, sex, or national origin. The Supreme Court has construed Title VII’s prohibition against discrimination to recognize reverse discrimination claims by non-minority groups.REF But it has likewise clarified that race-conscious or gender-conscious decisions made pursuant to an appropriately tailored voluntary affirmative action plan designed to remedy the effects of discrimination in traditionally segregated job categories will not violate Title VII.REF

Therefore, employers can adopt voluntary affirmative action plans to correct an imbalance in a traditionally segregated job category, but that plan cannot unnecessarily trample the interests of those outside the group that the plan is designed to protect. It also cannot involve a hiring quota or an inflexible hiring goal.REF

H.R. 4827—because of its required reporting on both hiring and interviewing segregated by individual characteristics—appears to run afoul of the Supreme Court’s assertion that diversity-driven hiring plans must be flexible enough to allow candidates to compete with other qualified candidates on a level playing field.

A federal judge searches for law clerks who share his or her judicial philosophy and those who have reached the highest levels of achievement and bring the sharpest minds to the task of helping the judge to understand the current state of the law and to apply the law to the facts in particular cases. Those individuals are hired not by virtue of their identifying characteristics, but because of their suitability to the task of judicial interpretation and application. To hamstring federal judges by forcing a reporting on sufficient “diversity” efforts does the entire legal profession and the federal Judiciary a disservice.

If anyone can point me to a similar proposal that has been aimed not at the judiciary, but at the legislature, please tell me. I have found none.

Conclusion

It is hard to see how this bill is not a violation of the constitutional separation of powers. It certainly skates close to the constitutional line. It also duplicates the myriad existing structures within the judiciary that address and rectify workplace misconduct and imposes intrusive requirements on Judicial Conference procedures—even as the Chief Justice has clearly expressed and demonstrated the Conference’s commitment to build on the vast progress it has already made.

A hundred years ago, Chief Justice William Howard Taft acknowledged that while criticism (and strident calls for reform) of the courts will always be inevitable, the judiciary must be left to manage its internal affairs, both to promote informed administration of the courts and to ensure their independence from the other political branches of government.REF And as noted in his 2021 annual report, our current Chief Justice has acknowledged that for the past 100 years, the Judicial Conference has been both an enduring success and up to the task of effectively addressing employee misconduct.REF

It is one of the chief merits of the American system of constitutional law that all of the powers entrusted to government are divided into three branches and that the functions appropriate to each of these branches of government are vested in separate bodies of public servants. But this system—as the Supreme Court has held—requires for its protection that the lines that separate and divide those branches be broadly and clearly defined.REF

Passage of H.R. 4827 would threaten both the independence of the judiciary and the separation of powers and would irreparably blur those lines.

I thank the committee for inviting me to testify today and welcome any questions you might have.

*******************

The title and affiliation are for identification purposes. Members of The Heritage Foundation staff testify as individuals discussing their own independent research. The views expressed here are my own and do not reflect an institutional position for The Heritage Foundation or its board of trustees. The Heritage Foundation is a public policy, research, and educational organization recognized as exempt under section 501(c)(3) of the Internal Revenue Code. It is privately supported and receives no funds from any government at any level, nor does it perform any government or other contract work.

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Authors

Sarah Parshall Perry
Sarah Perry

Senior Legal Fellow, Meese Center