By Sarah-Jane Lorenzo ’21 Staff Editor
As the #MeToo movement continues to inspire critical consideration of sexual harassment, Dean Risa Goluboff introduced Monday’s panel, “#MeToo and the Federal Judiciary,” as a chapter of an ongoing conversation.
Panelists Dahlia Lithwick and Pamela Harris emphasized the particular need to address the issues of power that surface throughout the frequently isolating experience of working in the judicial system. Harris, a United States Circuit Judge of the U.S. Circuit Court of Appeals for the Fourth Circuit, called this conversation long overdue, especially since abuse in the judiciary is difficult to report.
As issues of workplace abuse continue to impede women’s full access to the legal profession, Lithwick, a journalist at Slate and a contributing editor at Newsweek, noted that data on the pervasiveness of abuse in the judiciary is very limited. Many complaints within the federal judiciary are never remediated: the judge may resign, or the complaints just disappear. While we do not know the nature of all of the complaints and some, she said, may be trivial, it is very possible that there are serious allegations going unaddressed.
Both panelists said that while the majority of clerkship experiences are positive, and most judges are good employers, that is not enough. “Inevitably, there are always bad actors,” Harris said. “It feels like a closed system, even from the inside.” Harris noted that both physical and cultural isolation contribute to that closed system, because judges have complete control over their staffs. “There is no accountability and there is no transparency.”
For example, Harris said that “one of the most haunting things” she felt was revealed by the sexual assault hearings following accusations of former Ninth Circuit court Judge Alex Kozinski was that, prior to Kozinski’s confirmation, a former employee described him as an abusive boss. Yet that description, she said, didn’t matter. “There’s no signaling that that’s an important part of the role.”
Lithwick said these issues are power problems in a closed system in which coming forward can lead to lasting personal harm. Power, she said, determines who can come forward and still salvage their career, and that limitation deters many victims from speaking up. She emphasized that law students, and especially women in law school, should never feel forced to endure anything in order to attain opportunities.
In sharp contrast to those abuses of power, Harris said she believes a central role of a judge and of the rule of law is to protect against abuse of power and to hold power accountable. “I think that raises very interesting questions about whether there’s room in the system for judges who don’t know how to do that and who are themselves abusing power,” she said.
Yet Harris said she is hopeful that the system is moving forward. For example, she believes changes to the Rules for Judicial Conduct Proceedings that outline and forbid abusive behavior are a crucial type of effective signaling. “Writing it down is at least a first step,” she said. She noted that the federal judiciary has also hired its first judicial integrity officer, and that in the Fourth Circuit, clerks are now trained on how to report issues of abuse. While she recognized that changes will likely be gradual, she believes there are many judges who are very committed to addressing issues of abuse, and who are equally committed to making changes.
Ultimately, Lithwick said, one of the most important remedies to abuse within the federal judiciary will be keeping it in our focus. “The problem isn’t over when somebody steps forward,” she said, “and the system isn’t fixed when one person steps down.”