Testimony at Senate Judiciary Committee hearing on sexual misconduct in judiciary reveals impeachment only option for retired judges

Sen. Richard Blumenthal says if retired judges get full retirement pay, judiciary should have jurisdiction to investigate misconduct

The judiciary can’t take disciplinary actions against retired federal judges accused of sexual misconduct except for impeachment, according to testimony before the Senate Judiciary Committee June 13.

But impeachment is a “cumbersome process,” Senator Richard Blumenthal (D-Conn.) said to James C. Duff, one of the witnesses at the hearing on workplace misconduct in the federal judiciary.

Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) called the full committee hearing because a recently released report on the problem of sexual harassment in the federal judiciary is “vague” and “kicks the can down the road,” Grassley said in a statement.

‘No Work, All Pay’

Duff, director of the Administrative Office of the U.S. Courts, confirmed that judges who retire after allegations arise, like Ninth Circuit Judge Alex Kozinski, receive full retirement pay.

Kozinski announced his immediate resignation in December 2017, following explosive allegations of sexual harassment by former clerks and others and a judicial investigation into his behavior. Later, an investigation in the judiciary about the allegations was dropped.

Once a judge retires, the third branch no longer has jurisdiction to investigate any alleged misconduct, Duff said during questioning.

The Judicial Conduct and Disability Act of 1980, which authorizes judicial investigations, doesn’t apply to retired judges.

So “no work, all pay,” Blumenthal said.

“If a judge continues to get paid after committing such a crime, shouldn’t the judiciary be able to pursue him?” he asked Duff.

Duff replied that the judiciary has no authority to stop the pay.

“That’s what I think should change,” Blumenthal said.

New Process Needed

Another witness said that any remedy should involve a “trusted and independent process.”

The judiciary should develop an Article III process “where an employee has a right to file suit in another federal court and adjudicate her claim with the right to a trial by jury rather than having a judge serve as factfinder,” Jenny Yang testified. Yang served as chair of the U.S. Equal Employment Opportunity Commission from September 2014 to January 2017.

In Kozinski’s case, just because he avoided discipline doesn’t mean that he’s “effectively unaccountable for his misconduct,” judicial ethics professor Charles Gardner Geyh told Bloomberg Law in February.

“He quit to avoid being fired. He lost his job and his legacy. His career is over. He will be remembered as a judge who resigned in disgrace,” Geyh said.

Whether this is enough is up for debate “but for someone of Kozinski’s stature, it is something,” he said.

The Federal Judiciary Workplace Conduct Working Group released 24 recommendations based on its months-long investigation into the federal judicial workplace in early June.

Chief Justice John G. Roberts Jr. created the working group at the end of 2017 to address sexual harassment in the judiciary.