The NPR Politics Podcast - Federal Judges Aren't Subject To Workplace Harassment Laws

Episode Date: May 2, 2024

NPR found that dozens of federal judges failed to disclose privately-funded travel to exclusive, often partisan events in exotic locales. And employees in the federal judiciary do not enjoy the same legal protections against workplace discrimination and harassment that cover most U.S. workers, which can help foster a hostile workplace environment. This episode: senior White House correspondent Tamara Keith, national justice correspondent Carrie Johnson, and investigations correspondent Tom Dreisbach.This podcast was produced by Kelli Wessinger and Casey Morell. Our editor is Eric McDaniel. Our executive producer is Muthoni Muturi. Listen to every episode of the NPR Politics Podcast sponsor-free, unlock access to bonus episodes with more from the NPR Politics team, and support public media when you sign up for The NPR Politics Podcast+ at plus.npr.org/politics.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Hi, this is Iris in New Orleans, Louisiana. I'm at Jazz Fest celebrating my 30th birthday with my amazing family and friends. This podcast was recorded at 1.20 p.m. on Thursday, May 2nd. Things may have changed by the time you hear it. Okay, here's the show. I've spent many, many happy Jazz Fest in New Orleans. Well, happy birthday. That's a big one. And to many more. Hey there, it's the NPR Politics Podcast. I'm Tamara Keith. I cover the White House. I'm Carrie Johnson. I cover the Justice Department. And we've got Tom Dreisbach here from NPR's investigations team. Hey, Tom.

Hey, thanks for having me. Thank you for being here. And today, NPR is reporting on widespread ethics issues in the federal judiciary, specifically your reporting on these issues. Carrie, let's start with your story about workplace culture under federal judges. And there is a key fact to start with. They are not subject to the same workplace discrimination laws that protect most employees in the United States. That's right. You know, if you work for a private employer or a nonprofit or even for a member of Congress, you do have certain kinds of workplace protections.

But that's not the case for the federal judiciary, in part because the judiciary wants to stand apart and be insulated from meddling from Congress. The problem is that when there are these situations at work, the employees don't have the kinds of protections that they need. And there have been these situations. You know, most people tell me it's not a pervasive situation, but there is sexual harassment in the judiciary. There is bullying and abusive conduct in the workplace in the judiciary. There is bullying and abusive conduct in the workplace in the judiciary. There are problems. And people, according to the data that's reported by the judiciary itself, very, very low numbers of reports. Not a lot of people reporting, often single digits of reports

per year, which doesn't seem possible given that 30,000 people work for the federal courts. And there is one particular job that is, it's important to understand, to understand your reporting, and that is the job of the law clerk. They work closely with these judges, right? This is an incredibly close relationship, and the power differential here is enormous. We're talking about federal judges who have lifetime tenure, Tam, and law clerks, usually people just out of law school, just at the start of their legal career. And so that relationship is a really important one for people, and these clerkships are considered to be prized. I mean, you could put them on your

resume now, and they carry with you through your whole legal career. Of course, the end game for a lot of people is to get a Supreme Court clerkship. Once you finish one of those successfully, you can get like a $500,000 bonus when you're done to join a law firm. But those are few and far between. There are only a few dozen of those every year. And so lower court clerks still get a lot of prestige. It can pave the way for really big careers in the law and private sector and also in the academy, too. And you've spoken to some clerks who had problems. I've spoken to a lot of clerks who had problems, including some who spoke out and felt that nothing had changed.

And I also spoke with a woman named Alisa Schatzman. She's a lawyer who advocates for clerks for having more information, more transparency about judges. She also says she suffered some hostile treatment from a judge when she clerked. My work is about partially compiling law clerks' experiences to share them with prospective clerks. And it weighs heavily on me to know there are so many judges out there right now mistreating their clerks who are never held accountable for that. And law schools are one of the stakeholders that have failed to hold them accountable. But I think it's the personal experiences that I hear that kind of galvanize me every single day to do this work. And you know, what I heard is that bullying and kind of a hostile

work environment seems much more common in the judiciary than sexual abuse and sexual harassment do. And the judiciary has, since 2017, since the start of the Me Too movement, undertaken some reforms. They've put people in place in each circuit courthouse around the country to take in these kinds of complaints and concerns. And they have an office in Washington here as well. But the people who have experienced these kinds of problems say it's still too confusing to report them, that it's hard to remain anonymous, and that many people are still very afraid to report judges for fear it will end their careers right at the very start. And part of what you found, Carrie, is really that it's this self-policing mechanism that

fails to provide a lot of accountability in these cases. Yeah. Judges tend to review complaints against other judges who can be their friends, their neighbors in the courthouse, their golf partners and the like. And so there has been a call for some years now to create an independent watchdog, like an inspector general for the judiciary. There's a new legislation on that that was just introduced in the last couple of weeks. So far, though, the judiciary has been really successful in installing a fence around itself and really preventing Congress from taking action. And Congress hasn't seemed to want to push any kind of accountability

legislation over the finish line either. Can you give some specific examples? Sure. In the course of my reporting, I've heard of people who had faced unwanted touching from judges, who had faced really brutal comments and screaming, who had faced threats of retaliation, those kinds of things. One of the problems is that in the legal space, it can be a tough environment. And so when does a bully or just being a bad boss cross the line into being abusive? And it's hard to know, in part because so many of these complaints and this discipline process remain secret. So it's hard to know where the lines should be. And it's hard for young lawyers to know who they should avoid, which kinds of judges they should avoid, because there's a whisper network, but there hasn't been much else that they can turn to for reliable information. And you spoke to one person who said that if she had it to do all over again, she wouldn't have taken her clerkship. Really an enormously brave woman named Olivia

Warren. She is now a defense lawyer in North Carolina. She clerked for a very prestigious judge on the Ninth Circuit Court of Appeals who has since died. She told Congress about her experience, her hostile experience in the office. And she says basically nothing has changed for her. She would tell people not to report abuse, but really she would tell people not to clerk in the first place because the risks she thinks are too great. All right. Well, we are going to take a quick break and we'll have more in a second. And we're back. And Tom, you did an investigation into trips some judges took to lavish events, junkets, if you will. And in more than three dozen cases, they failed to disclose

it. But let us start with what these trips are. Sure. These are known as judicial education events. They've been around for decades. This is not a new thing, but they're hosted by nonprofits, legal groups, bar associations, some law schools, and basically they invite judges sometimes to quite fancy resorts where they have legal seminars and talk about issues in the field. One of the biggest hosts of these events is actually George Mason University over in Virginia. They have a conservative-leaning law and economics center, and they've really been the biggest player in this space for a really long time. And so we took a close look at their kind

of events. And, you know, the things that have raised alarms for some of the ethics experts and people who watch the courts quite a bit are the combination of you're going to a luxury event. You know, it is at a five-star hotel, say in London, or a resort on the outskirts of Yellowstone National Park or near Aspen, Colorado or Maui. Oh, it sounds great. Yeah. And it's paid for. The hotel room is paid for. The meals, some meals are paid for and a portion of the travel expenses to get there are paid for, sometimes for your family member. One judge told me he brought his German shepherd to one of these events. And then there's the combination of that with the content. The Law and Economics Center for George Mason is conservative-leaning. They have had some, you know, pretty conservative-leaning presentations,

many people would say, including some presentations we found from a far-right German lawmaker who is part of the Alternative for Germany political party, which is seen as having ties to right-wing extremism in Germany, as well as corporate CEOs in the oil and pharmaceutical industries. And so these events have been controversial for a while. You know, I talked about this with Jeremy Fogel. He is a former federal judge. He now runs the Berkeley Judicial Institute. And he also had the opportunity to go to these events and had to weigh whether it was appropriate. I just thought somebody could question whether I had kind of an open mind as to what the appropriate way of handling a particular

kind of case was. And so I didn't go to those things. And so other judges on the other hand told me that, hey, we keep an open mind. It's not exactly like a bunch of shrinking violets in the face of a presentation. They have really spirited debates. They're tough in the court. They're tough in a legal seminar. But the important thing that everyone agrees on is you have to disclose that you went to these events and received these free perks. And yet you found that a lot of them didn't disclose it. Yeah, that's right. There's really two main disclosure requirements. One is pretty soon after the event, within 30 days, you have to file what's called a privately funded seminar disclosure report. Basically, that's what these are called, privately funded seminars. And you have to declare that you went to this event, who the speakers were, the topics, etc. And then also

at the end of the year, on your annual financial disclosure report, you have to note that you received reimbursements. You know, it's essentially a gift of some kind for going to this event. And in more than three dozen instances, like you said, people didn't file that form within 30 days. And then another dozen or so people didn't record that they received reimbursements on their annual financial disclosure report. And some of the judges we found that had disclosure issues included some big names. Judge Eileen Cannon, who is currently presiding over former President Trump's classified documents case in Florida. She went to two of these George Mason events at a

luxury resort near Yellowstone National Park. She did not disclose that within that 30-day window as required. A clerk of court there said it was an inadvertent omission and that they were fixing it. And then another judge, Judge Robert Conrad, who actually directs the administrative office of the U.S. courts. This is the office that actually implements these rules. He also did not disclose multiple trips. And, you know, he's in this position where he helps enforce and implement these rules in the first place. So that certainly raised questions. And a lot of the judges I talked to were pretty embarrassed. They expressed regret.

One judge I heard from, his name is Gary Fenner. He is in Kansas City. I have to tell you that I am really surprised that I did not report that. I did attend. I know that it's something that needs to be reported, and I'm embarrassed about the fact that somehow that was overlooked by me. But I don't have really an excuse for it, and I'm going to correct it. He sounds contrite. Yeah, that was mostly the reaction that we got as I called every single one of these judges that we identified with disclosure issues.

And by and large, they said, oops, this was inadvertent. I really didn't mean to. We didn't see any evidence that people were intentionally withholding this information. But clearly, from what we found, there are gaps in the disclosure that people either weren't aware of the rules or were not paying close enough attention to make sure that all the disclosure requirements were being followed. Tom, you know, some people might look at this as paperwork violations, but why do you think it matters? Why do good government groups think it matters? Well, when you go to these events, especially when they have an ideological point of view, like these George Mason University events do, you know, ethics experts say that can raise

questions about whether a judge has a bias or a conflict of interest, particularly if they're hearing from, you know, parties like one of these corporate CEOs that spoke at one of these events. They actually are currently suing the federal government in federal court over regulations. And so if you're a litigant in one of their cases, you might want to say, hey, okay, what kind of information is the judge I'm appearing before? What kind of information are they seeing? And you want to see that pretty soon. So if, you know, probably the most extreme, you would ask the judge to recuse if you found a conflict that was quite serious, or you just maybe want to have that information to inform the way you proceed in court.

But for the public at large, you know, these are people in positions of public trust. They make around $250,000 a year, a lot less than they could make in the private sector, but pretty good for most of us. And they have lifetime appointments. And so the judiciary has recognized itself. These events can present at least the appearance of a conflict. And so people deserve to know about them. I do want to ask you a broader question about trust, because poll after poll indicates there's just been this dramatic decline of trust in American institutions. And the judiciary is clearly one of those institutions that has been somewhat tarnished in recent years. There are concerns about Supreme Court justices not disclosing major gifts that they received. How does your reporting fit into all of this? Like, you know, is the lack of trust justified? someone's above the law or not. And in this case, it's federal judges who are supposed to interpret the law and sentence people who break the law. And while most of the behavior we uncovered

did not rise to the level of like an intentional violation or criminal behavior, it's still really disillusioning to hear from people who served as law clerks to federal judges who feel as if they got no remedy, no justice, were not heard when they faced abuse in chambers. And they still feel that way to this day. And I think that matters. Yeah, I think, you know, these are judges who are literally sitting in judgment of people in front of them in courts every day. They have this enormous power, not just for the people in front of them that are appearing in cases. If it's a criminal case, whether someone will have their liberty at the end of that case.

In other cases, they are deciding issues that can affect the entire country, you know, in terms of policy issues. And, you know, we kind of expect that they will be above reproach, that they will dot all the I's, cross all the T's, make sure everything is on the up and up. And in some cases, there are at least mistakes that they're making. And it really raises questions about these self-policing mechanisms within the federal judiciary. If the very director of the administrative office of the U.S. courts can't get all his paperwork right, are they really paying close enough attention? All right, we're going to leave it there for today. Tom Dreisbach, thank you so much. Thanks, Tamara.

I'm Tamara Keith. I cover the White House. And I'm Carrie Johnson. I cover the Justice Department. And thank you for listening to the NPR Politics Podcast.