Aliza Shatzman: Federal Judiciary Employees Lack Confidence in Internal Processes and Rarely Report Misconduct
By Aliza Shatzman
Federal judiciary employees rarely report misconduct because they “don’t think anything will be done,” “don’t trust the process will be fair,” and “fear retaliation.” Those who reported misconduct say “no action was taken” or “I don’t know what was done.” And less than 20 percent of employees who used internal court reporting processes believe their complaints were thoroughly and impartially investigated, according to a bombshell workplace survey released in March.
On March 31—the same day former federal bankruptcy judge Kesha Tanabe resigned amid misconduct allegations—the judiciary released its long-awaited workplace climate survey results. Only 42 percent of respondents would choose to report misconduct, signaling skepticism and distrust.
These troubling results mirror the judiciary’s first annual report, released late last year, documenting just seven internal dispute resolution complaints by judicial law clerks between 2021 and 2023. That’s because employees do not trust Employee Dispute Resolution (EDR), a toothless, underutilized internal complaint process the courts troublingly peddle as their alternative to extending Title VII protections to over 30,000 exempt federal judiciary employees.
Meanwhile, judiciary leaders refuse to acknowledge flaws in the system, let alone implement meaningful solutions. Robert Conrad, Director of the Administrative Office of the U.S. Courts (AO). has dubiously stated the judiciary “doesn’t have a judicial problem, but a middle-management problem” and that few complaints indicate a lack of misconduct.
Additionally, a Kansas federal judge and Workplace Conduct Working Group member misleadingly claimed on a podcast recently that judicial branch employees have “more rights than employees in any other workplace.” When pressed that judiciary employees are exempt from all federal anti-discrimination laws, including Title VII of the Civil Rights Act and the Americans with Disabilities Act and lack procedural protections, the judge backtracked and “couldn’t comment.”
EDR—lacking in impartiality, due process and procedural protections, clear rules and guidelines, oversight, and meaningful redress—is not a sufficient substitute for Title VII’s rights and protections. It cannot be employees’ only option. And certainly not when the employees in question are attempting to do their jobs of upholding the legal rights of the entire nation.
EDR lacks the procedural and due process guarantees of Title VII. And despite the judiciary’s professed commitment to “due process,” clerks who file complaints are often not even represented by counsel—while going up against the full weight of the judiciary and judges with attorneys—because most lawyers fear going up against judges themselves, and because there are no monetary remedies available. Extending Title VII to judiciary employees would obviate these problems.
Furthermore, the misbehaving judge’s colleagues in their courthouse preside over EDR complaints, leading clerks to reasonably perceive a lack of impartiality and confidentiality. Judges are notoriously unwilling or unable to sit in impartial judgment. One mistreated clerk asked me recently, “What’s to keep the courts from throwing my complaint in the trash?” Considering the lack of outside oversight, not much.
We should view this workplace climate survey in its proper context: inadequate reporting processes and insufficient legal protections. Considering how distrustful law clerks are of internal judiciary processes, it’s no surprise that only thirty-nine percent of survey respondents were law clerks or other chambers staff.
Consider this: 106 chambers staff experienced wrongful conduct—and another one-third of employees experienced “inappropriate behavior”—yet fewer than seven EDR complaints were filed by chambers staff between 2021 and 2023, and only three formal judicial complaints were filed by judicial employees in 2023—an abysmal three percent reporting rate of wrongful conduct. The judiciary should do everything possible to encourage mistreated employees to report. They still could: there’s no statute of limitations under the Judicial Conduct & Disability Act.
Between 64% and 73% of respondents who experienced wrongful conduct did not report it. Less than 20% of those who participated in EDR agreed that the issue was thoroughly and impartially investigated. When asked about the outcome, the most common responses were “no action was taken” and “I don’t know what was done.” And while the courts boast 80% of employees recommend their workplace, that means 20% do not. Not exactly an “exemplary workplace.”
What are the courts doing in response to foster more robust reporting, address fears of retaliation, and improve policies? Apparently, not much. And Congress won’t even ask these questions.
Earlier this month, AO Director Conrad testified before Congress about the judiciary’s budget, just days after a new judicial accountability bill was introduced. But while workplace conduct was the second item Director Conrad discussed in his written testimony, claiming progress toward ensuring “safe and respectful workplaces,” members did not ask a single question about workplace conduct at the hearing. One Democrat had “no questions,” period.
The rule of law is under attack, yet congressional Democrats, particularly Appropriations and Judiciary Committee members, have abdicated their oversight responsibility. They circulate oversight letters to law firms they have no jurisdiction over, but won’t circulate one to the courts—over which both committees have explicit oversight authority.
Congress should use all tools in its toolbox—legislative, oversight, appropriations, and the bully pulpit—to hold the judiciary accountable. Members should send oversight letters; pen strongly worded op-ed pieces; highlight stories of affected constituents; and shine a public spotlight on the lack of judicial accountability and systemic harassment on social media. They should hold a shadow hearing, similar to one on attacks on the rule of law—because there’s nothing more antithetical to the rule of law than judges being above the law.
Why the unwillingness to hold judges accountable? Democrats likely perceive themselves as friends of the courts, which have often ruled in their favor recently. Disrupting the judiciary status quo risks disrupting that relationship. But holding the courts accountable is their job as a co-equal branch of government tasked with oversight and appropriations. This is not an “attack” on the courts. Congress must ensure judges who interpret the laws are subject to those same laws.
Congress should be outraged that the AO flouts its authority, refusing oversight or data disclosures despite demanding more money. And Congress lacks an outside voice briefing them on judicial misconduct. If Congress’s sole perspective on the courts is from the courts, which are heavily incentivized to misleadingly claim progress, its decision-making will be biased and incomplete. This will only change if we elect new members of Congress who care about judicial accountability and understand how to achieve common-sense solutions.
Congress cannot credibly espouse a commitment to the rule of law while refusing to ensure judges are subject to the law. Over 30,000 vulnerable constituents suffer from congressional inaction.
Law clerks cannot wait another year for reform. Congress can and should do far more.
Aliza Shatzman is the President and Founder of The Legal Accountability Project, the first and only nonprofit ensuring that judicial law clerks have positive clerkship experiences, while extending support and resources to those who do not.
