NPR Investigation: Harassment In The Federal Court System

Speaker 1 Support for this podcast and the following message come from Humana. Your employees are your business's heartbeat.

Speaker 1 Humana offers dental, vision, life, and disability coverage with award-winning service and modern benefits. Learn more at humana.com slash employer.

Speaker 2 Hey there, it's the NPR Politics Podcast. I'm Susan Davis.
I cover politics. And today on the pod, we have something special.

Speaker 2 Our colleague Carrie Johnson, who's who's NPR's justice correspondent, has been working for almost a year on a story about a subject we rarely hear about, what happens inside the chambers of a federal judge, especially when it comes to the way judges treat their clerks who are young, vulnerable, and as Carrie found out, terrified of ever reporting any wrongdoing.

Speaker 2 And just a warning, this piece contains a description of sexual assault.

Speaker 6 Carrie takes it from here.

Speaker 4 In 2020, as the coronavirus pandemic began to shut things down, a recent law school graduate started a new job all the way across the country in Alaska.

Speaker 4 She accepted a coveted post as a law clerk for a federal judge.

Speaker 5 It's kind of like a unicorn. It's a position that follows you for the rest of your life.
It's on the top of your resume.

Speaker 5 It's, you know, people pay attention to it, especially a federal court clerkship.

Speaker 4 The clerk hoped this job would jumpstart her career. She didn't know anyone else there, only the judge.

Speaker 5 The judge was the HR department. The judge was my boss.
The judge was a colleague. The judge was everything.

Speaker 4 He had all the power. He started testing her boundaries early on.

Speaker 5 It started immediately, the inappropriate conversations,

Speaker 5 there was a lot of talk about the judge's personal relationships, about sexual relationships.

Speaker 4 She says she thought it was part of her job to listen to the judge and help him with anything.

Speaker 4 He was going through a divorce, and he began to text her constantly, to the point where her phone felt like an electric leash.

Speaker 5 He'd told me that I was a confidant, and he'd given me the title of career clerk. And, you know, he'd spoken to me about what an honor that was.
And

Speaker 5 I mean, this is ridiculous, but I thought I was doing a public service.

Speaker 4 That pressure built. He texted that she looked like a, quote, fucking Disney princess and that he liked her blue pants.
He even asked how things were going with her boyfriend.

Speaker 5 You know, I never had respite from being just a few text messages away from him. It was constant.
It was during work. It was after work.
It was all the time.

Speaker 4 In the summer of 2022, things got worse.

Speaker 5 That's when he told me he'd been communicating with this prosecutor that was appearing before him, and she had been sending nude photos.

Speaker 5 And that was the breaking point for me where I decided I needed to leave.

Speaker 4 She stayed in Alaska, but she got a new job as a federal prosecutor, and this she hoped would put an end to the ordeal. As it turned out, that was wrong.

Speaker 4 The voice you've been hearing is not her real voice, although they are her words verbatim. We're using a voice actor because she was too afraid to talk.
You'll understand why in a moment.

Speaker 4 About a week after she left the judge's chambers, she ran into him at a party. I'm going to tell the next part of the story entirely from allegations in the court papers.

Speaker 4 That's in part because retelling it to me was too painful. At the party, he tried to get her to sit next to him on the couch.

Speaker 4 Eventually she left, but she got a text from him saying he needed to talk to her. It was cold that night, so the judge suggested they chat inside his apartment.

Speaker 4 Once inside, the judge insisted she come to the bedroom. At first, she sat on the corner of the bed, but he wanted her to lay down.
Then, she told investigators, he grabbed her breast.

Speaker 4 She tried to pull his arm off, but he was really strong.

Speaker 4 I just remember thinking, like, there's nothing I can do about this, she told the investigators. This is about to happen.

Speaker 4 Like, I always felt like this thing he could not touch, and finally, he felt like he could touch. He took off her pants and performed oral sex on her.

Speaker 4 A judge's control over the future of a young lawyer is real and lasting. With only a phone call, a judge can open doors to a lucrative job at a law firm or shut them permanently.

Speaker 4 And there's no one really policing what happens inside a judge's chambers beside the judge themselves.

Speaker 4 Unlike people who work for private companies, nonprofit groups, or Congress, employees of the federal courts usually cannot sue for mistreatment.

Speaker 4 For nearly a year, I interviewed 42 people, current and former workers within the federal court system, about their experience.

Speaker 4 They're men and women who work for more than two dozen judges, appointed by presidents from both major political parties.

Speaker 4 I heard from people whose self-confidence was shattered by judges who screamed so loudly, others could hear from the hallways. People who were fired after a week or two on the job for no clear reason.

Speaker 4 Some described sexual harassment, like in the case of the Alaska clerk.

Speaker 4 Many more shared episodes of bullying, and others said they faced discrimination because they had a disability or were pregnant, like Jessica Horton.

Speaker 4 When she graduated from law school at age 24, she felt lucky to get a job as a law clerk to a new federal judge. Horton says she disclosed her pregnancy a couple months before she started work.

Speaker 4 And at the time, it didn't seem like it would be much of a problem for the judge. She was herself a mom.

Speaker 7 She told me that she took off two weeks when she had each of her children. And so she said you can expect the same.
And at the time, I had no context for how little that is.

Speaker 4 Inside those chambers, the judge's word is law, and Horton fell in line. She worried so much about missing work that she told the doctor she wanted to avoid a C-section because of the recovery time.

Speaker 4 She refused an epidural, too, because she had read about complications with them.

Speaker 7 My judge at one point asked me how dilated I was, and I didn't know not to, like, and so she's like, well, maybe when you go to your appointment, the doctor should check. I had no idea.

Speaker 7 Like, I mean, at the time, like, I knew that that was wrong. Looking back, that is so incredibly inappropriate.

Speaker 4 Horton ended up back at work for an event 11 days after her first child was born.

Speaker 7 And I remember

Speaker 7 I was still wearing all the pads because I was still bleeding. I was leaking milk everywhere.

Speaker 7 And I just remember dropping him off at my mom's house and being gone for those few hours and just being completely miserable.

Speaker 4 She returned to work fighting infections and bullying from another clerk in the chambers. Her clerkship lasted a year and leaving wasn't a possibility in her mind.

Speaker 7 And I felt like it would have been career suicide at that point to leave my clerkship.

Speaker 4 She started counting down the days.

Speaker 7 Yeah, literally on the calendar and every day I'd cross it off and and just count the days until I could

Speaker 7 be done with that and put it behind me.

Speaker 4 Starting out, Horton had been so excited about learning from the judge, having a mentor, maybe someday becoming a judge herself.

Speaker 7 But after this experience, I changed my mind and it, I think, kind of put a nail in the coffin of my legal career pretty early.

Speaker 4 Her son is now nine years old. Sometimes they drive by the courthouse and she reminds him, that's where he slept underneath her desk as a baby.

Speaker 4 Horton decided to talk to me on the record, in part because she's left the legal profession, and things can get pretty tough for clerks who speak out.

Speaker 4 When the Alaska clerk reported the assault, she told a colleague who had been assigned to mentor her, but that mentor said she also had been coerced.

Speaker 5 When I reported to my mentor, she was also the person that had been sending him nude photos and immediately told him that I reported the sexual assault.

Speaker 4 Her mentor later said the judge's power and authority contributed to the pressure she felt, and he told her he would have sway over a job she wanted.

Speaker 4 The former clerk heard from friends the judge was furious she'd told anyone. When she ran into him in the hallway at the courthouse, she says he warned her to keep her head down and shut up.

Speaker 5 The actual sexual assault was awful. Don't, I mean, it was completely awful.
And, you know, I've since sought therapy for that and help.

Speaker 5 But what happened next was almost worse.

Speaker 4 The court system ultimately launched an investigation into the judge, Joshua Kindred.

Speaker 4 What followed were multiple rounds of interviews with investigators who cross-examined her and stress-tested her credibility. The court investigation took more than a year.

Speaker 4 All the while, two other young women clerks in the judge's chambers continued to work by his side. Then, in July.

Speaker 8 Now, with the Ninth Circuit's report released just hours ago, we learned back in May that the judge was told he could face impeachment if he did not resign for what the council concluded was sexual misconduct with a clerk.

Speaker 4 Judge Joshua Kindred told investigators that the sexual experience was consensual and that he had no, quote, sinister intent.

Speaker 4 The special committee found the judge deliberately lied when he said nothing sexual had happened between them.

Speaker 4 But the committee did not reach a conclusion about whether the judge sexually assaulted the former clerk, finding there was enough evidence to say the judge committed misconduct without even resolving that issue.

Speaker 4 Judge Kindred did not respond to NPR's attempts to reach him for comment. The clerk said she felt let down by the process.

Speaker 9 I want to be careful here and you respond in the way that you feel comfortable.

Speaker 9 After you left the job, the judge met up with you and

Speaker 9 assaulted you. And the Ninth Circuit report is less than clear in concluding that, but it's certainly clear in your mind and the mind of your attorney that is exactly what happened.

Speaker 5 That is exactly what I experienced. Yes.
I was sexually assaulted.

Speaker 5 I'm not sure why that was a fact in dispute. Perhaps not a fact in dispute, but not a conclusion drawn by the report.

Speaker 5 And I've never wavered on that fact that that was immediately what I reported to the U.S. Attorney's Office.

Speaker 2 We're going to take a quick break, more from Carrie, in a moment.

Speaker 10 This message comes from NPR sponsor CNN. Stream Anthony Bourdain Parts Unknown Prime Cuts Now, exclusively on the CNN app.

Speaker 10 These rarely seen, never-before-streamed episodes dig deep into the Parts Unknown archives with personal insights from Anthony Bourdain and rare behind-the-scenes interviews about each season.

Speaker 10 Anthony Bourdain, Parts Unknown, Prime Cuts, now streaming exclusively on the CNN app. Subscribe now at CNN.com/slash all access, available in the U.S.
only.

Speaker 10 This message comes from Charles Schwab. When it comes to managing your wealth, Schwab gives you more choices, like full-service wealth management and advice when you need it.

Speaker 10 You can also invest on your own and trade on Thinkorswim. Visit Schwab.com to learn more.

Speaker 1 This message comes from Michelin.

Speaker 1 More than a tire company, Michelin is an innovation company, from connected mobility to clean materials, and now taking on one of the toughest mobility challenges, space.

Speaker 1 Developing an airless wheel for space exploration designed to withstand the extreme conditions at the moon's south pole.

Speaker 1 Michelin isn't just making exceptional tires, they're helping build a better future. Motion for life.
More at michelinman.com/slash y-michelin slash innovation.

Speaker 2 And we're back.

Speaker 4 Here's Carrie. The federal judiciary points to the departure of the Alaska judge as a demonstration the system works.

Speaker 4 The administrative office of the courts, which sets policy from Washington, says they've taken extensive steps to protect clerks and other workers since the Me Too movement swept the country in 2017.

Speaker 4 And they say they hold judges to the highest standards. But our investigation uncovered problems with the reporting system in the judicial branch.
For one, there's a widespread culture of fear.

Speaker 4 And there's a good reason for that. Jamie Baker is a former judge who also worked in the White House and the military.

Speaker 11 The location where I found the power differential

Speaker 11 the most distinct was when I was serving as a judge with law clerks.

Speaker 11 And I think that's something worth noting.

Speaker 4 Not only is the relationship intense, it often comes with a huge age gap.

Speaker 12 Judges are life-tenured. The average age of federal judges right now is about 65 or 68.

Speaker 12 Law clerks, they are roughly, let's say, 26 to 30.

Speaker 4 Gabe Roth is executive director of Fix the Court. He's pushing the federal courts to be more accountable.
Here's the way the system works. Let's say a clerk has a problem.

Speaker 4 The first option is something called informal advice.

Speaker 12 So informal advice can be anything like, you know, talk to the judge, write down your thoughts. It can be a lot of different sort of basic HR things that we've all spoken to HR people about.

Speaker 4 The next step, however, gets more complicated.

Speaker 12 If it's more serious, there are other options that you have. So something that's called an assisted resolution.

Speaker 4 The courts say there are about 500 people across the system who can hear about problems and offer advice.

Speaker 4 A lot of that happens informally through mediation, where a clerk or other court employee can raise concerns and get an apology or even a job transfer.

Speaker 4 Then there's the most serious option, making a formal complaint. But staying anonymous is not guaranteed, clerks say.
I talked about that with Eliza Schotzman.

Speaker 4 She runs the Legal Accountability Project, a database where clerks can share honest feedback about judges, the good and the bad.

Speaker 9 I spoke with a clerk recently who talked about going in for an interview with investigators. One of the investigators was planning a party for the judge this clerk complained about.

Speaker 9 And when the interview ended, the clerk walked out into the hallway and there was the judge about whom they were complaining.

Speaker 7 Yep.

Speaker 14 Yep. I don't take it lightly when I say the federal judiciary is the most dangerous white-collar workplace in America.
There are no workplace protections.

Speaker 14 And year after year, thousands of young, eager, recent law graduates are sent into these federal clerkships.

Speaker 14 where far too many will be mistreated, careers and lives are destroyed, folks are retaliated against, and the judiciary has no interest in engaging on these problems, crafting any kind of effective solutions, really doing anything.

Speaker 4 But hard data about misconduct in the court system can be hard to come by. For example, no one tracks that first step we mentioned, the informal advice.

Speaker 7 There's tons of stats.

Speaker 12 You want to know the birth year of some random judge in Missouri from 1897? They have that. But the idea that they have not successfully captured the most common type of complaint is very frustrating.

Speaker 4 A report in November did show that more court employees are using the dispute resolution process, but few of them are law clerks.

Speaker 4 There are more than 1,400 federal judges with life tenure, and they each have at least two clerks. Just seven complaints came from law clerks between 2021 and 2023.

Speaker 4 But the federal courts interpret that low number to mean something different. I asked Eliza Schotzman about that.

Speaker 9 Just a few months ago, the head of the administrative office of the U.S.

Speaker 9 courts, Judge Robert Conrad, came out and said the numbers of complaints filed by law clerks, EDR complaints, is very low, which to him means that they have kind of a middle manager problem in the judiciary and it's not the judges.

Speaker 9 What do you take that data to mean?

Speaker 14 When you see a low number of harassment and misconduct complaints in a workplace, typically that does not signal that it is a safe workplace.

Speaker 14 Typically it signals that the reporting mechanisms are broken and law clerks do not feel comfortable filing complaints.

Speaker 4 The clerk in Alaska, for example, never used the judiciary system to report Judge Kindred. She says she didn't know it existed.
And that's not uncommon.

Speaker 4 A national research study last year found many federal courts failed to put required information on reporting misconduct on their websites. Here's retired judge Jamie Baker.

Speaker 11 I was surprised how many of the courts don't have fully up-to-date websites.

Speaker 11 And that's an easy one.

Speaker 4 One person, a former coordinator, told me there are a lot of people trying to help and do the right thing.

Speaker 4 But they told me it was a struggle to get information updated on the court's website so clerks could find out who they can talk to if they have the courage to speak.

Speaker 4 Even this coordinator was afraid to talk because of possible reprisal for talking about the courts.

Speaker 4 And then there is inaction. Before the courts started to develop more formal systems for reporting abuse seven years ago, and even to this day, clerks are left to figure out a solution for themselves.

Speaker 4 That's what happened many years ago with a woman who would only use her initial, S.

Speaker 4 S worked for a federal judge in Puerto Rico just out of law school.

Speaker 15 We were working together on a very high-profile, high-stakes death penalty case. And I remember that I was in his chambers and we were sitting next to each other.

Speaker 15 And I remember that he put his hand on my thigh.

Speaker 15 And I remember moving it off of my thigh and just being shocked.

Speaker 4 Things like that happened quite a few times, she says.

Speaker 15 There was a moment when he was traveling, and i think he was traveling in boston and he came back he gave me a huge hug and i remember that when we pulled away from the hug he tried to kiss me on the lips and again

Speaker 4 i was just shocked judge jose antonio fuste copied down a love poem and left it at her desk S says she struggled with her options, including whether to leave the job early.

Speaker 4 Eventually, a new law clerk arrived, and the judge made advances to her, too.

Speaker 4 S realized something.

Speaker 15 This wasn't about me personally. This was just a pattern and a practice of behavior.

Speaker 4 Together, she and the other clerk developed some strategies for handling the judge, their boss.

Speaker 15 We never went into his chambers alone, kind of just tried to stay away from him as much as we could, which is a very unfortunate situation because part of the reason one might choose to work for a federal judge is because you want to be able to interact with a federal judge.

Speaker 15 So we just, we just got very cold to him. And I guess strength in numbers is how it turned out.

Speaker 4 S says she and her fellow clerk, diligent young attorneys just out of law school, dug into legal research about sexual harassment and the ramifications of making a complaint about a federal judge.

Speaker 4 Ultimately, they've reached out to administrators in the appeals court for the First Circuit.

Speaker 15 You know, we just hit a brick wall. We were told that there wasn't anything that could be done.
And it wasn't until years later that that I actually heard that it was reported up the chain.

Speaker 15 It apparently made its way up to Chief Justice Rehnquist at the time.

Speaker 15 And apparently what I was told was that our judge was given a slap on the hand and told not to do it anymore and nothing else happened.

Speaker 4 NPR could not independently confirm if the complaint reached the Chief Justice or what happened after that.

Speaker 4 Still, the judge remained on the bench for years, until 2016 when he resigned after another clerk reported him to administrators.

Speaker 4 Judge Fouste did not respond to NPR's attempts to reach him for comment.

Speaker 4 All these years later, the news of his retirement reached S, who's still afraid of the damage it could cause her career if she identifies herself by name.

Speaker 4 She was afraid to record with me using her own voice, so we found someone else to speak her words on tape verbatim.

Speaker 15 He was able to retire with all of his federal benefits, so I thought, well, this doesn't really seem seem fair. That all he has to do is kind of, you know, walk away.

Speaker 15 And he could have been ready to retire in any case.

Speaker 4 Retirement stops any court investigation in its tracks. Often, a judge under scrutiny will keep their benefits and sometimes still show up at the courthouse.

Speaker 4 That's how things went down in the most notorious case in recent years.

Speaker 13 Alex Kaczynski handles some of the country's most high-profile cases on the Ninth Circuit Court of Appeals. Now, six former staffers claim that he sexually harassed them.

Speaker 4 Sexual misconduct allegations against Judge Alex Kaczynski rocked the federal courts in 2017. That followed a wave of MeToo complaints in Hollywood, the business world, media, and politics.

Speaker 4 Kaczynski apologized to his former clerks for making them feel uncomfortable. He said he had a, quote, broad sense of humor.
But seven years after that scandal, Kaczynski is still working in the law.

Speaker 4 He's even filed court papers for clients with cases before the Ninth Circuit, the same one he left amid a national outcry.

Speaker 4 The Administrative Office of the Courts points out that Judges Kaczynski, Fouste, and Kindred are off the bench. It says the courts continue to make improvements to foster an exemplary workplace.

Speaker 4 For most people, the courts are where accountability does happen when they have problems at work. But for the people who work in those very courts, their rights are not clear.

Speaker 4 Protections for them are not set out under law. And judges, colleagues, and friends can be the deciders.

Speaker 4 There are efforts to change that. Congresswoman Norma Torres, a Democrat from California, is leading the charge.

Speaker 16 Well, good morning, everyone. It's good to see all of you here.

Speaker 4 Last fall, she convened a group of experts on the Hill Hill to try to draw attention to the problem.

Speaker 16 I don't need to be a lawyer to know that people in power with no oversight get to sweep people and problems under the rug.

Speaker 4 Torres says the majority of judges behave properly, but the ones who don't face little accountability.

Speaker 16 We know there are many, very, the majority, decent, but it's that extreme minority that has made it impossible for their employees to work.

Speaker 4 Torres says the courts operate in a patchwork, so no one's in charge of overseeing all the systems that employees use to report misconduct.

Speaker 4 Torres had Congress set aside money for two research studies to understand the holes in this system. Greta Goodwin led one of those efforts for the Government Accountability Office.

Speaker 6 This report is about workplace misconduct, and we were not really allowed to talk to employees or get perspectives from employees. We were allowed to speak to one current and one former employee.

Speaker 6 The former employee

Speaker 5 had not even

Speaker 16 two employees, one current and one former employee.

Speaker 6 And that took almost a year to get to that point.

Speaker 4 The federal courts say the study validates the steps they've already taken to improve conditions for workers there. But Torres says that's not enough.

Speaker 4 She's committed to using the power of the purse, the appropriations power, to try to get the judiciary to do more. She's working alongside Georgia Congressman Hank Johnson.

Speaker 4 Good morning.

Speaker 1 Pleasure to see you, sir. Great to see you also.
Thank you all for being here.

Speaker 17 You ready to go? Okay.

Speaker 4 Johnson's walking us through the Rayburn House office building

Speaker 4 and into the Capitol to introduce the Judiciary Accountability Act.

Speaker 4 His bill would make clear the same legal protections for workers in the private sector and the executive branch also apply to the 30,000 people who work for the federal courts.

Speaker 17 This is just one small step, but a very important step to bring about some accountability.

Speaker 4 The legislation did not get a hearing before Congress left town last year, and Republicans now control both chambers of Congress. Reforms to the judicial branch are not a priority for them.

Speaker 4 From the Supreme Court on down, the judiciary has been resisting oversight, and so far, the judges are getting their way.

Speaker 4 The people who work for federal judges, for probation departments, for public defenders, they can't go to the executive branch for help. And it's not clear they can sue in courts either.

Speaker 4 In fact, many former clerks told me it's hard to even find a lawyer to give any advice because these complaint systems are so hard to understand, and because the lawyers worry about getting on the bad side of a federal judge who may decide their own cases someday.

Speaker 4 Eliza Schotzman.

Speaker 14 The federal judiciary is outrageously exempt from Title VII of the Civil Rights Act of 1964. That means that if you are a law clerk and you are sexually harassed,

Speaker 14 fired, retaliated against by a federal judge, you have no legal recourse.

Speaker 4 The federal courts say they've done a lot to make sure workers are treated with dignity and respect. Court administrators say employees now have several ways to report problems.

Speaker 4 And when it comes to abusive or hostile behavior, they have more power to complain about their bosses than people who work outside.

Speaker 4 But I've been told clerks who run into trouble on the job still face tremendous pressure to remain silent. A bad word from a judge can derail a clerk's career while judges serve for life.

Speaker 4 I heard it again and again. Those judges who behave badly, often it's an open secret inside the courthouse.
But nobody does anything about it.

Speaker 4 Many clerks graduated from top law schools and pride themselves on their smarts and resilience, only to break down in tears when they talk about hostile treatment they suffered working for federal judges.

Speaker 4 The judiciary protects its own, one clerk told me. Another said, I can handle a tough boss.
I can't handle an abusive boss. I just wish more people would talk about it.

Speaker 2 If you were harassed or bullied by a federal judge or you know someone who was, we want to hear about your experience. Your name will not be used without your consent and you can remain anonymous.

Speaker 2 Please go to npr.org/slash federal judges. This episode was produced by Monica Estatieva with help from Casey Morrell.
It was edited by Barry Hardiman, Monica Estatieva, and Kristen F.

Speaker 2 Callimer with help from Anna Yukaninov and Robert Little.

Speaker 3 Research from Barbara Van Werkum, engineered by Margaret Luther, music courtesy of Universal Production.

Speaker 2 I'm Susan Davis. Thank you for listening.
Have a great weekend.

Speaker 10 This message comes from Vital Farms, who works with small American farms to bring you pastor-raised eggs. Farmer Tanner Pace shares a moment that brings him a sense of purpose.

Speaker 18 I think that when the barn doors open and the hens run to the paddocks, you can truly see what a happy hen really is.

Speaker 18 I love Pasteur's eggs because you can see the work and the pride that the farmers have and have put into these eggs.

Speaker 10 To learn more about how Vital Farms farmers care for their hens, visit vitalfarms.com.

Speaker 1 This message comes from Indiana University, whose industry partnerships go beyond business as usual.

Speaker 1 Working side by side, they're fueling economic growth that creates jobs and supports entrepreneurs and small businesses. More at iu.edu/slash impact.
This message comes from Mattress Firm.

Speaker 1 Tired of losing sleep? Mattress Firm sleep experts can match you with a Temper-Pedic mattress built to absorb motion. Shop the Black Friday sale and save up to $500 on select Tempur-Pedic sets.

Speaker 1 Restrictions apply.