The
federal
judiciary
cannot
“self-police”
workplace
conduct.
In
no
other
workplace
are
employees
entrusted
with
sole
authority
to
judge
their
colleagues’
alleged
misconduct.
But
judicial
reforms
require
congressional
action
and
oversight.
In
its
absence,
the
courts
vociferously
defend
their
biased
complaint
processes
and
dismiss
calls
for
reform
—
including
by
dismissing
a
lawsuit
filed
against
the
federal
judiciary
by
former
North
Carolina
federal
public
defender
Caryn
Strickland
in
2020,
alleging
harassment
and
retaliation
by
her
supervisors
at
the
Federal
Defender’s
Office
and
deliberate
indifference
when
she
spoke
up.
In
August,
a
circuit
panel
dismissed
Strickland’s
lawsuit.
Five
years
of
litigation
spanned
several
presidential
administrations
and
two
presidential
elections;
a
global
pandemic;
a
change
in
counsel;
congressional
testimony;
and
the
rare
deposition
of
several
judicial
branch
officials.
Strickland
asserted
her
Fifth
Amendment
right
to
a
safe
and
respectful
workplace,
free
from
discrimination
and
harassment
—
rights
not
guaranteed
to
judicial
branch
employees,
since
more
than
30,000
law
clerks,
permanent
court
staff,
and
federal
public
defenders
are
exempt
from
Title
VII
of
the
Civil
Rights
Act
of
1964
and
all
federal
anti-discrimination
laws.
Ironically,
judges
who
interpret
anti-discrimination
laws
are
above
those
same
laws;
and
public
defenders
who
defend
their
clients’
rights
in
court,
lack
rights
themselves.
Simply
put,
judiciary
employees
support
the
daily
functioning
of
our
courts
while
lacking
workplace
protections;
and
judges
rule
on
issues
affecting
litigants’
lives,
livelihoods,
and
liberty,
while
themselves
not
required
to
abide
by
anti-discrimination
laws.
How
did
Strickland
get
here
—
arguing
her
own
case
in
federal
court
opposite
her
former
employer?
While
working
as
a
federal
public
defender,
Strickland
was
harassed
and
discriminated
against
by
the
office’s
first
assistant.
When
she
complained,
the
fFederal
defender
(his
boss)
sided
with
his
second-in-command.
Strickland
filed
a
complaint
under
a
previous
version
of
the
Employee
Dispute
Resolution
(EDR)
Plan.
But,
considering
EDR
lacked
meaningful
redress
for
Strickland
and
punishment
for
the
first
assistant;
and
the
federal
defender
himself,
not
a
neutral
third
party,
would
make
the
final
decision,
Strickland
ultimately
quit.
Strickland
then
sued
the
Fourth
Circuit.
She
argued
the
EDR
Plan,
lacking
procedural
due
process,
was
both
facially
unfair,
and
unfair
as
applied
to
her.
Importantly,
internal
dispute
resolution
is
not
one
of
several
options
for
judicial
branch
employees:
it’s
their
only
option,
misleadingly
peddled
as
an
“alternative”
to
Title
VII
and
its
robust
procedural
and
due
process
guarantees.
EDR
puts
the
onus
on
law
clerks
(or
permanent
employees,
in
Strickland’s
case)
to
blow
the
whistle
on
their
powerful
superiors
—
judges
or
federal
defenders
—
while
lacking
legal
protection
against
retaliation.
The
judiciary
gives
employees
no
confidence
that,
if
they
stick
their
necks
out,
their
concerns
will
be
taken
seriously
and
robustly
investigated.
Nor
will
they
receive
meaningful
redress
since,
unlike
under
Title
VII,
which
provides
for
monetary
remedies
to
address
harms
to
one’s
career,
no
monetary
remedies
are
available
under
EDR.
Mistreated
employees
might
ask
themselves:
why
file
a
complaint
at
all?
The
best
one
can
reasonably
hope
for
is
reassignment
to
a
different
judge
or
office.
That’s
cold
comfort
when
judiciary
policies
do
nothing
to
prevent
the
judge
or
supervisor
who
harassed
you
—
probably
angry
about
the
complaint
—
from
retaliating
against
you
by
badmouthing
you
to
prospective
employers,
getting
you
blackballed
from
your
dream
job,
or
derailing
your
career,
as
Strickland
experienced.
The
EDR
process,
Strickland
argued,
lacks
meaningful
due
process
and
impartiality.
An
employee
is
not
guaranteed
a
real
opportunity
to
be
heard
—
the
presiding
judicial
officer
(PJO)
isn’t
required
to
hold
a
hearing.
And,
importantly,
at
least
for
law
clerk
complaints,
the
PJO
is
another
judge
in
the
court
—
the
friend
and
colleague
of
the
judge
you’re
complaining
about.
Mistreated
clerks
regularly
tell
me
they
wouldn’t
file
complaints
because
the
judge’s
friends
and
colleagues
are
not
impartial
decisionmakers,
so
they
don’t
believe
they’ll
get
a
fair
shake.
It’s
no
different
for
public
defenders
—
the
decision-maker
is
your
boss.
To
correct
this,
the
judiciary
could
transfer
every
complaint
to
a
different
circuit,
so
judges
less
likely
to
know
the
judge
at
issue
would
review
them.
Or,
the
courts
could
remove
EDR
entirely
from
the
judiciary’s
chain
of
command:
neutral
third-party
civil
rights
investigators,
rather
than
judges,
could
review
and
adjudicate
complaints.
But
the
judiciary
has
historically
resisted
these
reforms.
The
EDR
Plan
is
fundamentally
flawed.
Yet,
while
the
court
in
Strickland
conceded
various
procedural
“imperfections”
and
“missteps”
by
the
circuit
handling
Strickland’s
complaint,
they
determined
these
did
not
rise
to
the
level
of
fundamental
unfairness.
Disturbingly,
while
the
EDR
Plan
has
theoretically
been
revised
since
2018,
the
revised
Model
EDR
Plan
isn’t
meaningfully
different.
The
issues
Strickland
raised
—
including
delays
and
lack
of
impartiality
among
decision-makers
—
haven’t
been
corrected.
The
plan
puts
far
too
little
in
writing
and
leaves
too
much
to
the
discretion
of
individual
PJOs,
who
routinely
give
fellow
judges
the
benefit
of
the
doubt.
EDR
is
a
sham.
Consider
the
results
of
the
federal
judiciary’s
own
2023
workplace
climate
survey:
while
at
least
106
law
clerks
and
139
public
defenders
experienced
wrongful
conduct
that
year,
just
seven
law
clerks
and
around
20
public
defenders
filed
EDR
complaints
in
the
two-year
period
between
2021
and
2023.
This
discrepancy
between
mistreatment
experienced
and
complaints
filed
is
partially
due
to
the
lack
of
protection
against
retaliation;
and
partially
to
employees’
lack
of
confidence
in
the
process.
In
fact,
only
42%
of
employees
said
they’d
be
willing
to
report
misconduct.
And
among
employees
who
used
the
EDR
Plan,
only
20%
described
their
experience
as
positive.
When
asked
why,
most
either
said
“nothing
was
done”
after
they
complained,
or
they
were
“never
told
what
was
done.”
The
federal
judiciary
has
done
nothing
since
releasing
these
results
in
March
to
explain
how
they’ll
foster
increased
confidence
in
and
use
of
the
plan.
The
Third
Branch
regularly
expounds
on
rules
and
processes:
if
they
wanted
to
make
changes,
they
would.
Refusing
to
implement
meaningful
workplace
reforms
is
part
of
a
concerted
effort
by
the
judiciary
to
maintain
the
broken
status
quo
and
shield
abusive
judges
from
accountability.
The
diagnosis
is
simple:
judiciary
employees
will
not
file
complaints
until
they’re
legally
protected
against
retaliation
under
Title
VII.
It’s
one
reason
why
the
judiciary
opposes
extending
these
protections
to
employees:
they
shield
abusive
judges
from
accountability
through
both
legal
action
and
internal
complaints.
The
courts
have
effectively
chilled
complaints
by
making
it
nearly
impossible
for
employees
to
safely
file
them:
they
boast
about
low
complaint
numbers
while
actively
suppressing
them.
Strickland’s
landmark
lawsuit
raises
two
fundamental
questions.
First,
why
are
30,000
judiciary
employees
who
support
the
daily
functioning
of
our
courts
still
exempt
from
all
federal
anti-discrimination
laws?
Second,
in
the
absence
of
Title
VII,
does
EDR
provide
employees
with
a
meaningful
alternative
that
guarantees
their
constitutional
and
fundamental
rights?
The
answers
to
these
questions
are
unsatisfying
to
anyone
who
believes
in
workers’
rights,
civil
rights,
democracy,
and
the
rule
of
law.
There
is
no
substitute
for
Congress
extending
federal
anti-discrimination
protections
to
judicial
branch
employees.
Those
who
help
ensure
a
functioning
judiciary
deserve
workplace
protections,
and
judges
should
not
be
above
the
laws
they
interpret.
Yet
every
day,
congressional
Democrats
obsess
about
the
dismantling
of
our
democracy,
while
failing
to
realize
there
are
fewer
greater
threats
to
our
democracy
than
exempting
1,700
unaccountable,
ungoverned
federal
judges
who
interpret
our
laws
from
those
laws.
The
federal
judiciary
cannot
be
viewed
as
a
fair
and
neutral
arbiter
of
disputes,
when
judges’
workplace
conduct
is
so
lawless,
and
when
they
treat
their
employees
with
such
callous
disregard.
Sadly,
lawmakers
lack
relevant
lived
experience
and
sensitivity
to
workplace
harassment:
it’s
no
surprise
they’ve
abdicated
their
oversight
responsibility,
throwing
tens
of
thousands
of
vulnerable
judicial
branch
employees
—
their
own
constituents
—
under
the
bus.
The
court’s
ruling
in
Strickland,
and
the
federal
judiciary’s
hostility
to
workplace
reforms,
send
a
message
that
when
you’re
a
judge,
they
let
you
do
it.
And
that
being
a
judge
means
never
having
to
say
you’re
sorry.
For
every
Caryn
Strickland
who
speaks
up,
hundreds
—
thousands
—
of
judiciary
employees
suffer
in
silence.
The
drumbeat
for
reform
will
only
grow
louder
as
lawyers
and
nonlawyers
alike
realize
judges’
conduct
behind
the
bench
affects
all
of
us,
spilling
over
into
their
rulings
and
their
interpretation
of
anti-discrimination
laws,
thereby
further
threatening
already
shaky
public
confidence
in
the
judiciary.
We
do
not
have
to
accept
judicial
branch
lawlessness.
Solutions
exist,
if
we
care
to
fight
for
them.
Why
are
judges
still
above
the
law?
Aliza
Shatzman
is
the
President
and
Founder
of The
Legal
Accountability
Project,
a
nonprofit
aimed
at
ensuring
that
law
clerks
have
positive
clerkship
experiences,
while
extending
support
and
resources
to
those
who
do
not.
She
regularly
writes
and
speaks
about
judicial
accountability
and
clerkships.
Reach
out
to
her
via
email
at [email protected] and
follow
her
on
Twitter
@AlizaShatzman.