Thursday, January 4, 2018
Lara Bazelon, After #MeToo Comes to the Courts
Chief Justice John G. Roberts Jr. took a long overdue step toward answering that question on Sunday when he announced that a working group would assess whether the judiciary’s disciplinary procedures are capable of addressing sexual harassment complaints and taking corrective action. The governing statute, passed by Congress in 1980, holds federal judges responsible for disciplining one another, save for the nine Supreme Court justices who are immune from any oversight.
But this process is shrouded in secrecy, with embarrassing allegations swept under the rug and sanctions that are inadequate to the offense. If the judiciary is going to better police itself, it must overcome its historical impulse to shield bad actors from consequences they would not hesitate to mete out to people who don’t wear black robes.
This ordeal makes it clear that the chief justice’s working group must overhaul the process to make it more robust and transparent. This is no easy task. The law mandates that all evidence, testimony and hearings relating to misconduct investigations be kept secret. But judges can — and should — publish detailed, well-reasoned opinions about the outcome of those cases to inform the public and maintain confidence in the integrity of the proceedings.
Also crucial to ensuring fairness is giving both sides the same procedural rights. The statute allows for equal treatment, but as enforced it is biased against the person who brings the complaint. An accused judge has the right to be present at a disciplinary hearing, to present testimony and witnesses, and to have a lawyer in any disciplinary case that is subject to investigation. The working group should provide the same rights to the person accusing the judge.
Sexual misconduct cases should also be automatically transferred from the circuit where they arose to a court in a different region of the country so that judges won’t have to pass judgment on a close colleague whom they see on a regular basis. (Before he resigned, Judge Kozinski was set to be judged by his colleagues on the Second Circuit, but only because Chief Justice Roberts had ordered that transfer.)
Finally, the working group should hold the nine Supreme Court justices accountable under the same standards. The fact that Congress exempted them when it passed the disciplinary law in 1980 is no excuse for refusing to play by the same rules as everyone else.