//  4/9/18  //  Commentary

#MeToo Series: This post is part of a series on #MeToo, sex discrimination, and possible solutions that amount to more than quick fixes.  You can read earlier posts in this series here, here, here, and here, and some related posts that weren't in this series here and here.

Four months ago, Judge Alex Kozinski chose to retire after the Washington Post published several accounts of his alleged inappropriate behavior. Two months ago, the Second Circuit Judicial Council announced that it would not continue its investigation into the judge’s misconduct, which effectively ended the public accounting of #MeToo in the federal courts. (I’ve tried to write this piece for so long this paragraph began “last week” at one point.)

The council’s decision is representative of something I’ve become increasingly attuned to over the last few months, which is that the biggest obstacle to meaningful change in light of #MeToo may end up being the people who think they’ve already put in the work.

Start with the federal courts’ own response. The Second Circuit Judicial Council concluded that the relevant laws didn’t allow the council to proceed with a misconduct investigation once the judge who was accused of misconduct chose to retire. Fair enough; other councils have reached similar conclusions in previous cases, and the Second Circuit Council’s decision was both expected and probably correct (in my view).

That leaves us with the working group that Chief Justice Roberts ordered the U.S. Courts’ administrative director to create (the Federal Judiciary Workplace Conduct Working Group), and the working groups that the Ninth Circuit Court of Appeals and the Seventh Circuit Court of Appeals established on their own. The creation of the working groups was promising, all the more so in light of the Federal Judiciary Workplace Conduct Working Group’s summary of proposed actions, and the Ninth Circuit working group's plans to hold focus groups with former clerks.

But some people, including myself, were disappointed that no working group chose to fully include people who aren’t federal judges themselves, or high-level, senior officers in the administrative offices of the courts. I was also disappointed to hear that the working groups apparently maintain that they are solely forward-looking, and not backward-looking. (To understand why that’s disappointing, check out these articles on due process for accusers, this tribute to Judge Reinhardt, or read Kathy Ku's Washington Post piece, in which she observed that not conducting an investigation leaves everyone to judge the accusations and the response to them "without knowing the full scope of [the] misconduct.")

It is easy to rationalize each of the working groups' plans or the judicial council's decision individually—the working groups are all probably concerned with judicial independence, and the Second Circuit Judicial Council was interpreting a statute against a backdrop of other cases that came to the same conclusion it ultimately did. But collectively, the decisions show us one way that institutional sexism can happen: Every group has done something that will suppress an institution's ability to respond to the concerns of victims (and the ones we know about are mostly women), either by not including them in the process, or by not pursuing their claims.  

In my view, we are already seeing some of the resulting consequences. Take the Federal Judiciary Workplace Conduct Working Group's response to a letter from Senators Grassley and Feinstein. The Senators wrote a detailed request to the working group, which demanded information about how the group was formed, among other things. The letter also referenced the inestimable Joan Biskupic’s staggering CNN report that attempted to look through the approximately 5000 judicial orders related to accusations of judicial misconduct. As the CNN report acknowledged, the orders contain few details so it is difficult to know the substance of the allegations.

The working group bristled at the mention of the CNN report.  After characterizing the report as "inaccurate," the group jumped at the opportunity to note that few of the complaints concerned alleged sexual misconduct:

No misconduct complaints were filed under these procedures by law clerks or Judiciary employees in 2016….[N]one of the four complaints in 2016 that were referred to a special committee … involved sexual misconduct. This has been true in most years.

The working group's response kind of misses the point. The Post stories (and others) included statements about why clerks, colleagues, and other people never filed a report of misconduct, even though some of them had considered doing so. Instead of addressing—or even acknowledging!—the reasons why clerks, chambers staff, and other personnel might choose not to file a report, the working group’s response celebrates that no one did so. That’s a mistake—unless the working group is willing to confront why individuals don’t feel able to report harassment, more reporting mechanisms might not do much good. And the working group may struggle to understand why individuals don’t report harassment if the working groups do not include clerks, chambers staff, and other employees in their discussions.

It might seem like I am nitpicking here; at least the working group is doing something, and I shouldn’t fault them because they could be doing nothing. But we have to stop accepting the bare minimum, and we have to try to make our responses to #MeToo better than they have been to date.

As I noted, the decisions of the three working groups and the Second Circuit Judicial Council are perfectly explainable, particularly when each decision is considered in isolation. But the impulse to rationalize individual events, rather than to step back and see a systemic failure in which we all play a part is not limited to our institutions. It affects all of us in this moment, including the ‘good’ guys, who see themselves as progressive and want to be allies.

Take the problem that much of this harassment we've heard about during #MeToo was an “open secret” that persisted with no consequences. Some number of men say, and I believe them (at least some of them), that they didn’t know about some of the particularly troublesome details that would have merited some additional action on their part. The next step, one not enough people are taking, is to ask themselves whether it is a problem that they didn’t know, and why victims didn’t feel comfortable disclosing to them. Why not ask, with an eye toward understanding rather than discrediting, why victims didn't report more than they did? And why not ask whether they observed anything that, in hindsight, should have given them pause, even if they didn’t observe the most egregious behavior? (A friend of mine has likened this idea to a sports analogy: People who have played a sport for a long time can see a play coming well in advance, even as more novice spectators are flabbergasted when it happens because they never saw it coming.) 

It’s easy to get derailed by nitpicking the choices of individual victims, or defending the actions of individual bystanders or harassers. But collectively, #MeToo has exposed how a litany of social, cultural, and professional norms have systematically enabled sexual harassment while also disabling our responses to it.

Discussing these and other failures that led to #MeToo inevitably leads the discussion to the power differentials between harassers and their victims, and between men and women more broadly. The same disjunction between systemic failure and individual responsibility prompts some people to shut down when this aspect of #MeToo comes up: They either hasten to explain why they haven’t included women on cases, projects, or other endeavors, or choose to ignore this line of questioning entirely and hope it goes away. It is, again, easy to rationalize why including women isn't necessary this one time, or on this particular project.  It is also easy to say you’ve done something that’s short of actually including women when you have the opportunity to do so. 

It’s also completely understandable that the good guys in this position, some of whom are public supporters or advocates of #MeToo, don’t want to be lumped in with the harassers, but the impulse to create distance between oneself and wrongdoing exacerbates the problem. It relinquishes the ability to do something about the way things are, and it leads us to reproduce the current system, rather than correct for its failures.

Again consider the working group's response to the Senators' letters.  The working group's letter expressed that the group was "pleased to have the opportunity" to respond to and correct the CNN report.  I find it ... difficult to imagine that CNN did not attempt to get a comment from the working group, the AO's office, or the judicial officials who oversee misconduct investigations before the report was published.  The working group's response has an air of defensiveness to it, and that's a problem.  People who are and were in a position to do something about harassment can't get defensive when we start talking about how they might be able to do better.  They need to listen, to hear, to reflect, and then do something. 

It is too easy to fall back into familiar patterns, and to rationalize the creation of yet another boys’ club. It’s easy to continue to rely on boys’ networks or behaviors that aren’t welcoming to women; to excuse or fail to notice the exclusion of women; to apologize for or explain away a friend or powerful figure who makes comments that undermine women. And it easy to write off any of these things as nothing in isolation. But collectively, they add up to our current, systemic problems, and until everyone seizes on their own ability to do something when they can, not much is going to change.

I am still cautiously optimistic that the working group is going to come up with some positive, forward-looking solutions.  But if they do so, we shouldn't forget to credit the people who have pressed them to do so, including the conscientious reporters at the Washington Post and CNN, and the group of former clerks, led by Jaime SantosKendall Turner, and others, who have insisted that former clerks be included in the working group's processes.




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