The Problem with Federal Judges Who Bully

The case primarily involves age discrimination but includes a sex discrimination claim.

The sex discrimination claim gave rise to a venue dispute involving where the lawsuit could be filed.

The federal government said the case had to be transferred from Arizona to Nevada because of a special venue provision in Title VII of the Civil Rights Act, the federal law that prohibits sex discrimination.

The plaintiff, an Arizona woman who is proceeding pro se, argued in court papers that the case should be moved to California, which would be more convenient for her and would not inconvenience the federal government. Alternatively, she  asked to amend her complaint to drop the Title VII claim that gave rise to the venue dispute so the case could remain in Arizona.

The presiding judge was U.S. District Court Judge James A. Soto, 67, a Hispanic who was appointed to the bench in 2014 by former President Barack Obama. The job of a federal judge is to follow the law. Federal judges are paid more than $200,000 a year to put aside their personal bias and prejudice and to be fair.

It was not complicated. Federal courts have ruled that venue should be interpreted broadly in civil rights cases because Congress intended to afford citizens full and easy redress of grievances. Federal rules encourage judges to”freely” grant leave for a Plaintiff  to amend her complaint, barring evidence of ill motive.

Judge Soto agreed that venue was proper in both California and Arizona (if Plaintiff dropped the conflicting sex discrimination claim). However, he ruled, without elaborating, that “judicial efficiency dictates that a transfer to the District of Nevada is in the interest of justice.”

Regarding judicial efficiency, Judge Soto’s ruling reduced his workload by one case but he could have done that by moving the case to California, which was the epicenter of the age discrimination case. And it is unheard of for a judge to deny a Plaintiff the right to drop a claim that the Plaintiff asserted in the first place. Can a judge force a private citizen to prosecute a sex discrimination claim? Of course not.

Was he attempting to discourage the plaintiff from asserting her civil rights by making the lawsuit as costly and burdensome as possible? Was he engaging in a form of aggression that constitutes bullying?

It is widely thought the male-dominated U.S. judiciary has a problem with bullying judges.  The federal judiciary is insular, closed off to citizen review, and its judges are appointed for life,  not elected. Regardless of the quality of their work, bullying federal judges with lifetime tenure remain on the bench, year after year, wreaking havoc on the unfortunate individuals who enter their orbit.

Thanks to the #metoo  movement, the problem of bullying judges has come to the fore.

Last year, a former chief justice of the U.S. Court of Appeals for the Ninth Circuit in San Francisco,  Alex Kozinski, 67, was  forced to retire after a half-dozen complaints of sexual misconduct were lodged against him by six former clerks. Kozinski allegedly engaged in a pattern of harassment for decades that included making sexual comments in front of female employees and showing them pornography. Kozinski denied the allegations but decided to retire with his hefty federal pension after he was threatened with an investigation.

Despite multiple accusations of sexual harassment, Judge Kozinski quietly retired with his pension.

Kozinski’s fitness for a judgeship was questioned in 1985 during his Senate confirmation hearing. Former  U.S. Sen. Carl Levin, D-Mich, said he opposed Kozinski’s nomination because Kozinski, then 35, treated subordinates in a harsh and cruel manner while serving as special counsel for a government agency. Among other things,Levin said Kozinski forced his subordinates to move and repair his office furniture and wrote deprecating remarks on drafts of their legal briefs. Kozinski, who was nominated by former President Ronald Reagan, was confirmed by a narrow margin of 11 votes.

 Throughout history, only 15 federal judges have ever been impeached; only eight of them were convicted and removed. 

In the wake of Kozinski’s departure, Chief Justice John Roberts of the U.S. Supreme Court  was essentially shamed into forming an eight member working group to address the problem of sexual harassment in the federal judiciary. According to reports, the group is  poised to adopt an informal reporting process that would be shrouded in secrecy. The really sad thing is that 34% of federal judges today are female but none have objected publicly.

There is no reason for optimism. Workplace anti-bullying advocates will tell you that nothing stops  harassment in an organization if the leadership of the organization engages in bullying behaviors and/or tolerates bullying by failing to hold perpetrators to account.  And this may be the most compelling reason of all to eliminate lifetime tenure for federal judges.

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