Legislative Advocacy and Policy Goals

Judiciary Accountability Act (JAA)

The federal judiciary is currently exempt from anti-discrimination laws, including Title VII of the Civil Rights Act of 1964. More than 31,000 judiciary employees—including law clerks and federal public defenders—remain unprotected by civil rights laws. Judiciary employees, who go to work every day in the federal courts, deserve the same access to the justice system as the litigants who appear before them. Furthermore, judges who enforce anti-discrimination laws should themselves be subject to them. 

The Judiciary Accountability Act (JAA) would enable judiciary employees to sue and seek damages for harm done to their careers, reputations, and future earning potential. Additionally, the JAA would create accountability for judicial misconduct. It would revise the definition of “judicial misconduct” in Title 28 of the U.S. Code to include discrimination and retaliation. It would also clarify that if a judge retires, resigns, or dies amid a misconduct investigation, the investigation will not cease. Furthermore, the JAA would standardize Employee Dispute Resolution (EDR) Plans and create a confidential reporting system. The JAA also includes important data collection provisions. It would finally require the judiciary to collect and report some data on workplace culture, the outcomes of judicial complaints, and diversity in law clerk and federal public defender hiring. 

The JAA will not fix everything. First, the JAA does very little to address the outdated Judicial Conduct and Disability Act, which is the process by which federal law clerks can file complaints against judges. The Judicial Conduct and Disability Act rules should be revised so judicial complaints can be investigated outside the judiciary’s chain of command, by neutral third parties (such as civil rights investigators). Additionally, the JAA would not revise the distinction in 28 U.S.C. §§ 371-77 that specifies that if a judge retires rather than resigns amid a misconduct investigation, they can continue to collect their lifetime pension. This distinction should be eliminated, such that any judge who steps down amid a misconduct investigation should forfeit their lifetime pension. 

Further Policy Changes

LAP looks forward to advancing additional proposals aimed at ensuring safe work environments for law clerks and holding judges accountable for misconduct. The JAA is the floor and not the ceiling for judicial accountability legislation. 

State-Level Changes

The JAA would address gaps in the federal judiciary’s workplace policies and judicial complaint process. However, state-level reforms are also necessary. 

State judicial conduct commissions must also be reformed to encourage more law clerks to file complaints; ensure their robust due process rights; and treat their complaints with the sensitivity and respect they deserve. When state judicial conduct commissions mishandle misconduct complaints against judges, it chills future complaints by law clerks. LAP will empower law clerks in every courthouse to stand up for themselves. 

Cultural Change in the Legal Community

Policy changes are only part of the solution. Larger cultural change in the legal community is necessary, to transform the profession from a culture of silence - one of deifying judges and disbelieving law clerks - to one of honest dialogue and empowerment. 

The legal community should believe and affirm clerks, and they should encourage everyone to bring their full selves to work each day, including to a judicial chambers. No one - regardless of their identity or their personality - ever deserves to be mistreated at work.