For nearly a year, the federal judiciary has been considering how to better prevent and respond to sexual harassment and other workplace misconduct within the court system. And last month, the D.C.Circuit, joined by the D.C. district court, adopted a set of nine new workplace policies based on recommendations from a circuit-wide committee that consisted mainly of circuit and district judges. Circuit Breaker‘s Katie Barlow spoke with Jaime Santos, an appellate attorney at Goodwin Procter, about the new policies and how they came to be. Santos is a co-founder of Law Clerks for Workplace Accountability, a group that advocates for stronger anti-harassment measures across the federal judiciary and worked directly with the D.C. Circuit’s committee. Below is a transcript of the conversation, which has been lightly edited for clarity.
Barlow: First of all, thank you for joining us and chatting with us about the D.C. Circuit’s new workplace conduct policies. Before we dive into that, I think it would be helpful for our readers to understand how you come to this issue, your familiarity with it, and your work that got us all the way here.
Santos: Sure, I’d be happy to. Thank you for asking me to talk with you today. I became involved in this work a year ago, almost a year to the day, shorty after the Washington Post reported on allegations against former Ninth Circuit Chief Judge Alex Kozinski that he had engaged in inappropriate sexual behavior involving his clerks and others who weren’t his clerks. I became involved with a group of current and recent law clerks who wanted to make sure that the judiciary handled this issue in a more robust way than just saying, “This is one bad situation, but there’s no problems. Everyone can look away now.” We wanted to make sure they updated their policies, and enhanced their procedures for reporting, and took a really close look at harassment in the judiciary.
We know that the context of a judicial chambers has all of the ingredients for harassment or abusive behaviors to flourish—things like short time periods for people who are working in chambers, gigantic power dynamics between judges and employees who come up every year, employees at the beginning stage of their legal career who don’t really have the ability to speak up when things don’t go well, and life tenure. And while the vast majority of judges are wonderful, we think that this kind of context created an environment that could allow wrongdoing to happen and could also allow it to remain hidden and uninvestigated where thigs occurred.
So, we encouraged the judiciary to take action immediately by starting working groups, by starting to enhance policies and procedures. And over the last year we have met with a number of the working groups to provide our feedback on the things they are considering, to nudge them to go a little bit further than they are comfortable with, and to provide a perspective that these working groups—who are mostly composed of judges and senior court executives—might not have.
One of the groups we met with was the D.C. Circuit’s working group. We met with them in the summer I believe—this past summer or maybe late spring. We had one meeting with them and then we’ve had contact with them since. We’ve provided them with our ideas, our thoughts, and our feedback whenever they gave us the opportunity to do so.
Barlow: When you met with the D.C. Circuit working group, were they asking you questions? Did you come with a presentation? What was that interaction like?
Santos: So usually what happens—we’ve met with three different working groups—and usually what happens is that they’ve seen our material from before because we provided some memoranda to the federal working group and to other groups. I think we also provided them with a memo—maybe a 10 or 15 page single-spaced memo—with our concerns, with our specific ideas for changes, and with any other thoughts that we had from our perspective. Then we just kind of met and talked for about two hours.
We talked about specific ideas. We talked about things that the working group was considering, but they couldn’t figure out how to make it work functionally. So things like, if we have a transfer process so that, if somebody complains about harassment or misconduct by a judge, they have the ability to transfer to another chambers because otherwise it could be an untenable working environment while this is being investigated—how do we actually do that? What would it look like? Does that mean that that judge has one clerk who stays behind and has double the work? Does that mean the other clerk goes and works in the staff attorney’s office or goes and works in a different place? What does this actually look like? And you know, we had these wide-ranging discussions where the judges would ask us questions. It actually wasn’t completely dissimilar to oral argument, except a little bit less intimidating.
And you know, we also asked some questions too. And we pushed back on some of their assumptions, and they pushed back on some of ours. And then, you know, the goal was just to try to help the group get to solutions that would help everyone.
Barlow: Got it. So is the D.C. Circuit the first mover on adopting these policies among the circuit courts?
Santos: No. Actually, the very first mover on looking at these issues and revising policies was actually the District of Utah, which started acting in, I think, October of last year—so even before there were any allegations against anyone. The former Chief Judge David Nuffer, he saw what was happening in the Me Too movement, worried that his district might have some of these same issues, and commissioned a survey to ask employees if they had ever experienced the type of things we were seeing in the news—we were being bombarded with the news everyday—and then started looking at policy changes that could be made proactively.
And then after the Washington Post stories came out about Judge Kozinski, the Ninth Circuit immediately put together a working group. Chief Judge Thomas put together a working group. The Chief Justice of the United States put together a federal working group to kind of look at things at a judiciary-wide level. And then the D.C. Circuit started, I think, in the spring. The Seventh Circuit also started work, I think, in the late winter or early spring.
Barlow: OK. And they’ve all put together these working groups, but it seems like the D.C. Circuit at least is one of the first movers on adopting these policies as a result of the working group.
Santos: Yeah, theSeventh Circuit came out maybe five or six months ago with a revised employee dispute resolution plan and a few other policies. So they did make some changes, I think, early. And the Ninth Circuit also made a bunch of changes several months ago. So the D.C. Circuit is probably the third mover there, but I think they are one of the first courts to do a robust survey of past and current employees to see what kinds of issues they’ve dealt with in their own jobs.
Barlow: Why do you think the D.C. Circuit was one of the early movers on that?
Santos: On the survey?
Barlow: Yes.
Santos: I think a few reasons. One, the judges there were really motivated, really devoted, really concerned with the issues that we had been talking about for a while. When we met with them, you know, several of the judges, they just wanted to do anything they could to make sure their employees were safe. And we’d been talking about doing surveys for a long time. The EEOC had talked about doing surveys. It may be that they had a fairly strong level of confidence that the result of the survey wouldn’t be too problematic, but I think it’s just that they thought, “Listen, if there’s a problem, we need to know about it. And if there’s not a huge problem, that’s good to know about too.”
Barlow: Do you think that the D.C. Circuit felt any pressure given, you know, one of their judges and one of the district court judges in the past couple of years have been under public scrutiny for sexual misconduct allegations?
Santos: So, the D.C. Circuit started working on this in the spring. So it was before any type of allegations from over the summer and in this fall. I don’t think it had anything to do with that. I’m not familiar with the district judge issue that you are talking about.
Barlow: Former Chief Judge Richard Roberts, who was accused of sexually assaulting a 16-year-old.
Santos: That’s right. So, it might be that, but you know, one of my colleagues, Kendall Turner, who testified with me before the Judicial Conference and who has been working on these issues since the beginning, she clerked for Chief Judge Garland. And I know he has sought her advice in the past about things that could be done to help, and I suspect that helps.
Barlow: Got it. That makes sense. He is a first mover in other areas too. So, now that they have adopted these policies, it looks like it is at least a first step, but having taken a look at them, what are you first thoughts about what they’ve put together?
Santos: I think there are a few things that make me really excited and that I’m really looking forward to seeing how things are sorted out. The first is, as I mentioned before, the D.C. Circuit is doing a comprehensive survey of current and past employees. None of the other circuits have done this in a comprehensive way, and I understand that they are hopefully going to be using the Federal Judicial Center, which I hope has some kind of survey expertise. Because I think, and I’ve always thought, that until you really know the scope of the problem, you can’t figure out how to fix it. And you can’t figure out where your blind spots are and where people are confused and where more training needs to happen when you don’t really know how bad the problem is. So I’m really excited about that. I think it will be a data-driven approach, which is exactly what should happen.
The other thing that I think is really encouraging—one thing that we have emphasized over the past year—is that these efforts have to involve lower-level employees. Part of the reason why the judiciary’s policies were so ineffective for so long and why people didn’t report is that they were written by judges. They involved reporting to judges.
Barlow: —Right—
Santos: They did not have buy-in from employees, and they weren’t crafted with the help of employees. So the D.C. Circuit, while they did not include law clerks as formal members of the working group, they have created these advisory groups, which are going to, on a long-term basis, be able to provide feedback to the working group and to the circuit as a whole about the types of things that employees are concerned about. So there is the employee sounding board, the law clerk advisory group, and the employee advisory group. And it’s great because it means that employees will have another group of people they can go to if they are worried or if they feel uncomfortable talking to judges. They can reach out to these individuals. These committees can speak with the court—we suggested on a quarterly basis or an annual basis about, you know, “Here’s some of the things we are hearing about, and here’s some ways we think they could be changed.” So it is going to create this really helpful feedback loop that ensures that there is progress going forward.
Another point is that the circuit is going to start doing exit questionnaires to get feedback from employees. So, I think all of these things are about showing, “We care what employees are saying, and we want to know it.” I think part of the challenge that we don’t think has been very effective from the federal working group perspective is, on the one hand, you have the court saying, “We want to know, and you should definitely come report to us if something goes wrong and you experience harassment.” On the other hand, it seems like the court has kind of taken great efforts not to actually find out any of that information when it has actually happened in the past. So, we suggested a law clerk advisory group for the judiciary-wide committee. So far they have not adopted that idea. We suggested mandatory exit questionnaires across the judiciary. I don’t think that has happened yet. We suggested that the federal working group have law clerks on the committee, on a decision-making basis so that those views are taken into consideration, and that didn’t happen. There was no judiciary-wide survey about experiences people have had in the past. So it is very hard for people to feel confident that they should feel comfortable coming forward when the judiciary doesn’t signal that it actually wants to know that information you have. I think the D.C. Circuit’s numerous efforts to create opportunities for employees and law clerks to share their concerns is a really important signaling mechanism that the court is committed to change.
Barlow: That makes sense. Do you see these policies as more than a first step, more than incremental change? Do you see them as initial phases or do you see this as solving most of the issues?
Santos: I think of it as somewhere in between. I don’t think that any step, no matter how great, should be seen as solving all the issues because the most important piece is that this can’t be a one-and-done solution. There are always going to be issues with harassment, abuse, discrimination in the workplace. What we need to see is a sustained commitment where there are measures in place to find out when things are going wrong and measures to continue to change policies and to change procedures to make sure that we are continuing to progress going forward.
So, it is definitely not a final step, but I think it is more than just a first step. I think the federal working group that the chief justice put together had some good first steps. Let’s change some policies. Let’s change some procedures. Let’s look at these issues. But without this constant feedback loop of getting more information from employees and using that information to drive things going forward, it doesn’t make it as far as I think the D.C. working group made it. And I was pretty excited because the D.C. Circuit and the District of D.C., you know, it is all in one building. It is a small circuit. And so if they can create a system on a small scale that works incredibly well, it could really be a model for the other circuits. And it could convince circuits that have thus far done nothing to finally get their act in gear and take some action.
Barlow: That makes sense. So what do you think is missing from the D.C. Circuit’s policies right now? Is there anything that you would really see as important to add to what they’ve done?
Santos: One thing that we’ve suggested to the Judicial Conference that I know they’ll be looking at, and I’m hoping that the D.C. Circuit will as well, is to look at what happens when harassment is actually reported. We now are going to give you all these different avenues to report misconduct or harassment when it happens, which is great, because then you don’t just have to go to a judge. You can go to mediators. You can go to the employee advisory group. There’s all these different avenues. But when someone does report, what happens? Who conducts investigations? Is it judges who conduct it? Who decides results of investigations? Is it judges who do that? Does that make sense in harassment cases even though it might make sense in some other cases? So we’re hoping that they take a look at how investigations happen going forward if there are reports made. I think that’s the primary thing I see missing so far.
Barlow: What about transparency? Are you guys recommending or looking for any kind of transparency to the public when allegations are made or when these issues come up?
Santos: We have suggested that at the federal working group level. We suggested in our comments to the Judicial Conference that there should be a mandatory reporting requirement that even an allegation of harassment against a judge by an employee has to be reported to the circuit and has to be reported to either the Judicial Conference or the Administrative Office of the Courts or someone at the highest level so all of this information is being aggregated. And I don’t think that can be something we can push for at a circuit-by-circuit level. We feel strongly it needs to be uniform.
And then we also believe that there needs to be some disclosures to the public, whether it’s disclosures of individual cases with information redacted or whether it is, at the very least, aggregated information about the number of allegations within each circuit on an annual basis, and how those investigations are resolved.
Barlow: Got it. That doesn’t seem to be included yet in the D.C. Circuit’s policies, so I imagine that’s something where there’s room to move on it.
Santos: Yeah, and I think that right now what they’re focused on was the initial steps. Let’s get some—let’s get more discussions happening. Let’s make sure there are more avenues. Let’s make sure there’s training, and then let’s keep looking at things from there.
Barlow: Yeah, makes sense. So, final question, you mentioned you had a friend who was clerking for Chief Judge Garland and some other friends, maybe, on the court. Are you hearing anything right now about the atmosphere at the court, how people are responding to this or receiving this?
Santos: I have not heard much about that. I think that trying to continually gather information and get feedback from people is something that we want to continue to do, but I also think that it needs to happen at the court level as well. I know the Ninth Circuit has made a bunch of changes, and they recently hired a kind of workplace conduct coordinator or director. So that person is starting within, maybe, the next month, or just started. I think that we’ll probably hear more about how these programs are being implemented on the ground. And I also think that with the law clerk advisory group starting there’ll be more feedback that’s being given to people about what the results of these measures are and if they are productive and if they are not working so well.
