Thurgood Marshall Federal Judiciary Building in Washington, D.C. Credit: Diego M. Radzinschi / NLJ

A ban on consensual romantic relationships between judges and their employees, and continued investigation and public report of judges accused of sexual misconduct even if they retire or resign were among proposals offered Tuesday during a hearing on the federal judiciary's efforts to deal with workplace misconduct.

During the daylong hearing, 10 members of the Judicial Conference committees on Codes of Conduct and Judicial Conduct and Disability heard suggestions on the committees' proposed amendments to the codes and rules from federal judges, former law clerks, law students and legal ethics and federal court scholars, among others.

Much of the testimony focused on providing alternative channels for reporting sexual misconduct instead of only to the chief judges of the district or circuit courts, and increased transparency in the investigation and resolution of complaints.

“Judges shouldn't make [confidentiality] promises they can't keep,” said Charles Geyh of Indiana University Maurer School of Law. “There needs to be a safe space where complainants can talk to someone outside of the direct chain of command. They might not know whether to file a complaint or to proceed.”

To that end, Arthur Hellman of the University of Pittsburgh School of Law told the committees, “Encourage circuits to establish web portals to enable employees to let the chief judge know of possible misconduct without filing a complaint. The chief judge has to be out there very publicly, telling the world he or she wants to hear what's wrong and will protect against retaliation, and employees should find a similar statement making the same commitment on that electronic site or on the judiciary intranet landing page.”

A group of seven Yale law students also said the proposed reporting process was “too rigid,” and suggested that alternatives could include submitting complaints to three-judge panels or to the most senior judge of a circuit, and to allow transfer of a complaint to another circuit at the request of the accused judge or the complainant.

Senior Judge Anthony Scirica of the U.S. Court of Appeals for the Third Circuit, chair of the committee on Judicial Conduct and Disability, said the committee was inclined to look favorably on the proposal to create an Office of Judicial Integrity within the Administrative Office of the U.S. Courts to receive and investigate misconduct complaints.

Yale's Rita Gilles also urged the committees to include law schools in the reporting requirements, as givers and receivers of information about sexual misconduct.

Jaime Santos of Goodwin Procter and Kendall Turner of O'Melveny & Myers, co-founders of Law Clerks for Workplace Accountability, raised concerns with judges being both investigators and adjudicators of complaints. “At a minimum, disinterested individuals outside the circuit should investigate and resolve complaints,” Santos said.

Judge Ralph Erickson of the Eighth Circuit, chair of the Codes of Conduct committee, asked Santos about the present rule that once an accused judge retires or resigns, nothing more is done about a complaint. Santos and Turner disagreed with that policy.

“Even where there is a resignation, it's important for the public trust and victims, for there to be an investigation into what happened,” Turner said. Santos added, “Many judges who retire may be interested in coming back into public life, for example, writing op eds or teaching. The lack of investigation makes it possible for that to happen without anyone knowing the full circumstances. I do think there should be a report after something like that happens.”

Hellman urged greater disclosure and transparency when allegations become the subject of public knowledge. “If you have such a report, the chief judge should be required to identify a complaint; interim orders should be made public, and the final order should be isolated from the routine orders that are published today. At a minimum, post orders of general public interest on a separate page or under separate heading or have an index of non-routine orders on the judiciary website.”

And Renee Newman Knake of the University of Houston Law Center said the committees also should focus on how to create a culture where misconduct does not occur. “A separate provision banning even consensual romantic relationships between judges and clerks would help curtail sexual overtures that may feel consensual on the part of instigator but harassing to the other person,” she said.

The two committees' proposed amendments are in response to recommendations made in a June report by the Federal Judiciary Workplace Conduct Working Group. That working group was established at the direction of Chief Justice John Roberts Jr. last December. The impetus for the group was the widely publicized sexual harassment allegations against former Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit. Kozinski resigned in December amid those allegations of harassment against female law clerks.

Roberts directed the working group to consider whether changes were needed to the Judiciary's codes of conduct; its guidance to employees on issues of confidentiality and reporting of instances of misconduct; its educational programs; and its rules for investigating and processing misconduct complaints.

The two Judicial Conference committees are accepting comments on the proposed amendments until Nov. 13.

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