Thread by @ZoeTillman

Hello from the federal judiciary building in DC, where Judicial Conference committees are holding a hearing on proposed rules changes re: how the courts handle sexual harassment and misconduct. See: uscourts.gov/rules-policies…

You can watch the hearing live here: uscourts.gov/rules-policies… And here's the witness list, which includes judges, law profs, law students, and former judicial clerks: uscourts.gov/sites/default/…

Kicking off the hearing, 8th Circuit Judge Ralph Erickson, chair of the Committee on Codes of Conduct, makes clear that this is *not* a "fact-finding" hearing — he asks to keep the hearing focused on the proposed rules changes

The judiciary began this review of its rules after now-former 9th Circuit judge Alex Kozinski was accused last year of sexual misconduct and other inappropriate behavior by several of his former law clerks, see: buzzfeednews.com/article/zoetil…

Chief Judge Lawrence O'Neill from ED California advocates keeping local discretion to deal with certain issues with judges. He told the story of a long-time law clerk who said a judge made a lewd comment. O'Neill investigated, and discovered the judge had early stage dementia

O'Neill said after he got the complaint, he checked with the judge's staff attorney, who got emotional and explained what was going on. O'Neill had a discussion with the judge, who resigned the next day. Under the proposed rules, O'Neill said he'd have to report it up the chain

This story is one you hear sometimes — that chief judges try to quietly deal with aging judges (who have lifetime tenure) in their courthouses who are no longer able to perform their duties

O'Neill's proposal is to give chief judges discretion to report complaints up to the chief of the circuit, and also give complainants the option to escalate for any reason. But not to make reporting up mandatory

Judicial ethics expert Charles Geyh is up next. Says he think rules changes need to include examples of sexual harassment, to avoid "definitional squabbles," also says he understands concern about mandatory reporting up

But Geyh says he also understands that he's a white man opining on certain issues that he hasn't had to deal with, and he urges the committee to listen to the diverse group of witnesses who are set to testify, "and take their recommendations seriously"

Another judicial ethics expert is up, Arthur Hellman, who suggests establishing an online portal where court employees or clerks can submit info about judicial misconduct or disability without IDing themselves. So not a formal complaint, but info a chief judge can act on

At this hearing on proposed rules changes for how the federal courts handle sexual harassment and misconduct issues, the first five speakers (introductions from the two committee chairs and three witnesses) have been white men. Majority of witnesses going forward are women

Hellman advocates for greater transparency when complaints are judges are the subject of public media reports. Says chief judges should be required to file a complaint if there isn't one, interim orders should be public, and orders in those cases should be easily accessible

Judge Sarah Evans Barker explains that the committee came down "pretty staunchly" in favor of disclosure re: complaints against judges. If there's no obligation, she says, "we invite people to be neglectful of the complaint or to wish it away or minimize it in some way"

Judicial ethics expert Renee Newman Knake says she'd like to see the rules go further, calling proposed changes a good first step. "No one should have to endure sexual harassment as a rite of passage into the legal profession."

Knake's reccs:
- Prohibit consensual romantic relationships between judges and clerks/employees (a la law school policies)
- Mandate annual anonymous survey on sexual harassment, sent to current and former clerks
- Have rules re: sexual harassment separate from other conduct

Legal ethics expert Carol Needham recommends replacing "should" with "shall" (i.e. "shall perform duties with respect for others"), to make clear the canons are not just "aspirational." When a judge notes "shall" is a legally problematic word, Needham says she supports "must"

Former law clerks Kendall Turner and Jaime Santos are up — Turner proposes making clear that judges are required to report misconduct, accounting for what happens when a chief judge is accused (recall Kozinski was prev. a chief judge), and making more info about complaints public

Santos notes that judges are the ones who investigate and adjudicate judicial misconduct complaints, but judges aren't trained investigators (workplace conduct issues are complicated, she notes), and that having judges serve these dual roles risks bias

Santos addresses earlier story about a chief judge quietly handling a judge appearing to suffer from dementia. Santos says that shows why there shouldn't be such discretion — that should be reported to see if others were harmed, if others enabled, if there should be other fixes

Santos and Turner advocate for continuing investigations even if a judge resigns. Turner notes they may still get a pension, so there's still a public interest there, and Santos notes they may try to return to public life in the future via teaching, writing op-eds, legal work

And we're back at the judiciary's hearing on proposed rules changes re: sexual harassment. Kansas district court Chief Judge Julie Robinson, who served on judiciary's working group, says they didn't see their mission as studying the problem — they just assumed there was one

Law students are testifying now. Their recommendations include having the judiciary tell law schools about judicial misconduct issues (in addition to state bars), allow complainants to go to a three-judge panel or another senior judge as opposed to just the chief judge

That's a wrap on today's public hearing on proposed changes to the judiciary's rules re: sexual harassment. People can submit additional comments by Nov. 13: uscourts.gov/rules-policies…