Thurgood Marshall Federal Judiciary Building in Washington, D.C. August 21, 2013. Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL. Thurgood Marshall Federal Judiciary Building in Washington, D.C. Photo by Diego M. Radzinschi/ALM

Responding to continued #MeToo scrutiny of the federal judiciary, the Judicial Conference on Thursday proposed significant changes in its code of conduct and rules to make it easier for employees to file complaints, and harder for perpetrators to escape punishment.

“A judge has an affirmative duty to promote civility, not only in the courtroom, but throughout the courthouse,” the Administrative Office of the U.S. Courts stated in a summary of the amendments to the code of conduct. “Confidentiality obligations of employees should never be an obstacle to reporting judicial misconduct or disability.”

The proposed amendment regarding confidentiality addresses the complaint of former clerks to Judge Alex Kozinski of the U.S Court of Appeals for the Ninth Circuit that he used the clerk-judge confidentiality as a weapon discouraging them from filing complaints. Kozinski retired last December after news reports detailing his inappropriate interactions with female clerks.

Proposed changes in the rules governing judicial misconduct and disability would expand the definition of “cognizable misconduct” that could lead to sanctions against judges. The new definition includes “engaging in unwanted, offensive or abusive sexual conduct, including sexual harassment or assault,” as well as “retaliating against complainants, witnesses, judicial employees, or others for their participation in this complaint process or for reporting or disclosing judicial misconduct.” A public hearing on the proposed changes will be held at a later date.

Judge Merrick Garland, chief judge of the U.S. Court of Appeals for the D.C. Circuit, and head of the executive committee of the Judicial Conference, announced the proposed changes at a press conference at the U.S. Supreme Court, where the Judicial Conference meets twice a year. The 26-member conference is the policy arm of the judiciary and is comprised of the chief judges of the 13 federal appeals courts as well as the U.S. Court of International Trade, as well as district court chief judges. U.S. Supreme Court Chief Justice John Roberts Jr. presides over the conference.

Garland, whose nomination to the Supreme Court in 2016 was blocked by Senate Republicans, declined to discuss the nomination hearings last week of his D.C. Circuit colleague Brett Kavanaugh, citing his role with the Judicial Conference, where Kavanaugh’s appointment was not formally discussed.

The conference also discussed changes in the structure of the federal defender system and the Criminal Justice Act that would improve the quality and independence of the public defender system.

As is customary, leaders of the other branches of government are invited to the conference, though the public is not. U.S. Attorney General Jeff Sessions spoke, as did members of Congress. House Judiciary Committee members Reps. Bob Goodlatte, R-Virginia, Darrell Issa, R- California, and Hank Johnson, D-Georgia, addressed the conference, but no members of the Senate Judiciary Committee spoke. Garland said the comments of the congressmen are not made public so they can speak freely, though he said the members of Congress could release their remarks on their own.

The conference also approved construction plans for two courthouses: one in Hartford, Connecticut, that would replace the Abraham A. Ribicoff Federal Building and U.S. Courthouse, at an estimated cost of $295 million; and Chattanooga, Tennessee, where the new courthouse would replace the Joel W. Solomon Federal Building at an estimated cost of $157 million.


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