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Sexual harassment isn't the only problem with law-clerk culture

Sexual harassment isn't the only problem with law-clerk culture
Chief Justice John G. Roberts Jr. has ordered a study of how to improve the federal judiciary's response to sexual harassment. (Pablo Martinez Monsivais / Associated Press)

In his Year-End Report on the Federal Judiciary, Chief Justice John G. Roberts Jr. focused (yawn) on the judicial system's preparedness in the face of natural disasters. But then he got to what journalists recognized as the buried lead: a commitment in light of "events in recent months" to explore whether the federal judiciary can be more responsive to sexual harassment.

Without mentioning him by name, Roberts alluded to the recent retirement of U.S. 9th Circuit Court of Appeals Judge Alex Kozinski after charges by some of his former law clerks that he had shown them pornography or made sexual comments when they worked for him.

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The chief justice noted that he had asked a key aide to assemble a working group to "consider whether changes are needed in our codes of conduct, our guidance to employees —including law clerks—on issues of confidentiality and reporting of instances of misconduct, our educational programs, and our rules for investigating and processing misconduct complaints."

Roberts' emphasis on confidentiality wasn't surprising. Heidi Bond, one of Kozinski's former law clerks, had told the Washington Post that Kozinski had so vigorously emphasized the importance of confidentiality that she questioned even years later whether she could share what had happened to her with a therapist.

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Maybe the study Roberts has ordered will result in new guidance making it even clearer than it is now that the confidentiality that cloaks discussions between judges and clerks about the law doesn't prevent clerks from reporting sexual harassment.

On the other hand, the current handbook for clerks already says that "nothing in this handbook, or in the Code of Conduct, prevents a clerk, or any judiciary employee, from revealing misconduct, including sexual or other forms of harassment, by their judge or any person."

So perhaps it's not confidentiality that's the problem, but something bigger: the overall and highly intimate relationship between judge (or justice) and law clerk, a storied relationship that has been likened to that of an academic mentor and prized pupil or even a parent and child.

In a narrative posted online, Bond (who writes romance novels under the name Courtney Milan) recalled:

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"The day I started as a clerk in Judge Alex Kozinski's chambers, he swore me in. After I read the words, he grabbed my arm and smiled. 'It's too late now!" he said. 'She can't escape any longer. She's my slave.' . . . I tried to make a joke of it. 'I think you mean indentured servant,' I replied. 'No,' he said with a smile. 'I meant 'slave.' "

Clerks are hired by individual judges with whom they work on intimate terms. Supreme Court justices tend to favor applicants who (like the justices themselves) attended Ivy League law schools and clerked for a select group of "feeder" appeals court judges on whom the justices have come to rely. (Kozinski was one of these "feeder" judges.)

It's a small and self-perpetuating world. Four members of the current Supreme Court, including Roberts, were clerks at the court in their youth.

It seems naive to expect that judges who have been nurtured in this system and cherish it would support doing away with it and replacing it with one in which law clerks were career civil servants, not recent law school graduates who are cycled through chambers every year. It's hard to be an avuncular mentor to a 50-year-old lawyer; but it's also hard to tell her that she's going to be your slave.

But perhaps some modest reforms could be instituted. What if appointment of clerks were a shared responsibility, with judges choosing from candidates preselected by the Administrative Office of the United States Courts? In that event a clerk wouldn't owe her job wholly to the judge. (Judges have been resistant even to voluntary guidelines for dealing with clerkship applications. One such plan set up by the Administrative Office of the United States Courts was discontinued in 2014.)

And while judges would probably never be willing to abandon the mentor's role, more of them should be willing to diversify their staff. A judge with four clerks could hire two short-termers just out of law school and pair them with two seasoned lawyers. (Some judges have made use of mature clerks.)

Even if such changes didn't make sexual harassment less likely, they might reduce other sorts of exploitation — and break up some old-boy (and old-girl) networks.

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