At
least
106
federal
law
clerks
were
mistreated
by
judges
in
2023,
according
to
the
judiciary’s
own
workplace
climate
survey,
meaning
as
many
as
106
federal
judges
committed
actionable
misconduct.
Yet
just
three
judicial
misconduct
complaints
were
filed
by
law
clerks
in
2023.
A
disturbing
discrepancy,
until
you
realize
how
ineffective
judiciary
reporting
mechanisms
are
—
by
design.
Case
in
point:
there’s
an
interesting
item
buried
in
the
Judicial
Conference
of
the
United
States
(JCUS)
recently
released
biannual
meeting
minutes:
“the
Subcommittee
on
Workplace
Conduct
approved
a
request
on
behalf
of
the
Committee
…
to
allow
an
additional
term
law
clerk
and
career
law
clerk
to
be
assigned
to
a
chief
district
judge’s
chambers
through
August
2026
in
order
to
address
a
workplace
conduct
matter.”
Occasionally,
the
judiciary
reassigns
clerks
who
allege
serious
mistreatment
—
addressing
one
discrete
situation
and
separating
judge
from
clerk
while
failing
to
solve
broader
systemic
problems.
Without
establishing
legal
guardrails
to
prevent
judges
from
mistreating
clerks
and
getting
away
with
it,
these
problems
persist,
committed
by
the
same
repeat
offenders.
What’s
most
interesting
about
this
reassignment
isn’t
who
this
abusive
district
court
judge
who
hires
for
two-year
terms
might
be,
but
the
systemic
problems
it
illustrates.
This
isn’t
the
first
such
reassignment:
several
years
ago,
two
district
court
clerks
were
simultaneously
reassigned
partway
through
their
two-year
clerkship
to
address
a
workplace
issue.
That
judge
was
not
disciplined
at
the
time:
she
hired
new
clerks
who,
due
to
the
judiciary’s
lack
of
transparency
and
accountability,
were
unaware
of
the
circumstances
surrounding
the
previous
clerks’
departure.
With
no
remedial
training,
the
judge
presumably
continued
to
mistreat
clerks.
However,
she
could
be
disciplined
now,
if
the
Fourth
Circuit
learns
from
past
failures.
Why
this
patchwork
system
of
reassignments?
It
stems
from
a
disturbing
blind
spot:
the
federal
judiciary,
and
its
more
than
30,000
employees,
are
exempt
from
all
federal
anti-discrimination
laws,
including
Title
VII
of
the
Civil
Rights
Act
of
1964
and
the
Americans
with
Disabilities
Act.
If
you’re
harassed,
unjustly
fired,
or
retaliated
against
by
a
judge,
unlike
in
most
other
workplaces,
you
cannot
sue
and
seek
redress.
Judges
are
literally
above
the
anti-discrimination
laws
they
interpret.
Instead,
the
courts
peddle
a
toothless
“alternative”
—Employee
Dispute
Resolution
(EDR),
lacking
impartiality,
clear
guidelines,
due
process,
and
meaningful
redress.
That’s
why
it’s
grossly
underutilized
—
out
of
thousands
of
federal
law
clerks
nationwide,
between
2021
and
2023,
just
seven
EDR
complaints
were
filed
by
law
clerks,
even
though
more
than
100
clerks
described
actionable
misconduct
in
the
courts’
own
survey
that
year.
Law
clerks
rarely
report
mistreatment
because
they
don’t
believe
their
concerns
will
be
taken
seriously
and
then
be
robustly,
impartially
investigated.
They’re
skeptical
the
process
will
be
fair,
since
fellow
judges
oversee
it:
judges
are
unable
to
impartially
judge
colleagues’
misconduct.
Importantly,
clerks
fear
retaliation,
which
they
lack
legal
protection
against
under
Title
VII.
Some
clerks
confide
in
a
court
point
of
contact
like
a
Director
of
Workplace
Relations
(DWR)
or
national
Office
of
Judicial
Integrity,
which
the
courts
misleadingly
conflate
with
reporting.
Sadly,
disclosure
often
stops
there,
since
court
administrators
dissuade
clerks
from
filing
complaints.
While
reassignment
may
assist
one
particular
clerk,
without
disciplining
or
training
the
problematic
judge,
problems
will
recur.
Abusive
judges
know
they
won’t
be
held
accountable
for
mistreating
clerks:
so,
they
continue
committing
misconduct.
Disturbingly,
judges
whose
clerks
were
reassigned
are
free
to
hire
new
ones,
who
unwittingly
enter
a
hostile
work
environment.
And
due
to
the
lack
of
judicial
transparency,
clerkship
applicants
have
no
way
of
knowing
from
the
courts
which
judges
have
been
reprimanded
for
misconduct.
Judiciary
workplace
conduct
policies,
clumsily
lumped
under
the
EDR
umbrella,
are
nothing
more
than
a
Band-Aid
over
a
bullet
hole
—
immediate,
short-term
solutions
that
fail
to
address
larger,
festering
systemic
problems.
And,
reassignment
lacks
the
meaningful
legal
and
financial
redress
mistreated
clerks
deserve,
for
which
Title
VII
provides.
While
the
judiciary
acknowledged
shortcomings
and
proposed
solutions
in
its
March
2025
Working
Group
Report,
including
a
searchable
database
of
EDR
and
Judicial
Conduct
&
Disability
(JC&D)
Act
disciplinary
orders,
without
congressional
oversight
or
benchmarks
for
progress,
these
proposals
aren’t
worth
the
paper
they’re
printed
on.
The
judiciary
benefits
from
this
broken
system
and
isn’t
properly
incentivized
to
fix
it.
Frankly,
judges
are
known
for
considering
long-term
implications
and
broad-based
solutions:
if
they
wanted
to
improve
policies
to
facilitate
robust
reporting
and
real
accountability,
they
would.
Importantly,
while
chief
judges
can
open
investigations
under
the
JC&D
Act
if
they
learn
of
misconduct,
absent
a
formal
complaint,
they
rarely
do.
That’s
why
judicial
discipline
must
be
taken
out
of
the
judiciary’s
chain
of
command
and
handled
by
neutral
third
parties
—
civil
rights
investigators
and
trained
workplace
conduct
experts
—
with
meaningful
congressional
oversight.
The
judiciary
will
never
discipline
its
own
unless
it’s
forced
to,
as
similar
problems
in
the
military
and
police
unions
illustrated.
Troublingly,
judiciary
policies
rely
on
vulnerable
subordinates
—
law
clerks,
dependent
on
judges
for
references
and
career
advancement,
lacking
legal
protection
against
retaliation
—
to
blow
the
whistle
on
their
powerful,
life-tenured
bosses.
But
clerks
fear
reputational
harm
and
career
destruction:
the
judiciary’s
refusal
to
meaningfully
discipline
abusive
judges
gives
them
no
confidence
they’ll
be
taken
seriously
if
they
stick
their
necks
out.
Court
administrators
understand
and
have
taken
advantage
of
clerks’
vulnerability,
repeatedly
dismissing
calls
to
make
complaint
processes
fair,
unbiased,
and
transparent.
The
EDR
Plan
must
be
overhauled.
We
know
clerks
are
not
empowered
to
file
complaints:
it’s
time
to
fix
the
system.
And
internal
dispute
resolution
cannot
be
clerks’
only
option.
There
is
no
substitute
for
extending
Title
VII
and
its
robust
due
process
guarantees
to
judiciary
employees
who
support
the
daily
functioning
of
our
courts
—
ironically,
ensuring
due
process
for
litigants
while
lacking
rights
themselves.
When
clerks
are
reassigned
due
to
mistreatment,
a
robust
investigation
and
publicly
accessible
reprimand
would
help
prospective
clerks
avoid
abusive
judges.
Such
judges
should
also
undergo
mandatory
remedial
managerial
and
workplace
training,
and
their
clerk
supervision
should
be
overseen
by
a
DWR
for
several
years.
In
fact,
this
punishment
was
imposed
on
Second
Circuit
Judge
Sarah
Merriam
several
years
ago.
Additionally,
judges
whose
clerks
are
reassigned
should
not
be
permitted
to
hire
new
clerks
for
at
least
six
months.
Some
cases
might
need
to
be
reassigned,
potentially
burdening
colleagues.
But
only
when
the
threat
of
punishment
is
real,
is
it
an
actual
deterrent.
This
would
shift
the
balance
of
power
back
from
an
unjust
system
where
judges
regularly
get
away
with
misconduct
and
cannot
be
disciplined
by
losing
their
jobs.
If
judges
actually
feared
discipline,
and
it
were
clear
that
judicial
misconduct
affected
all
judges
in
the
court
if
one
were
sidelined,
judges
might
take
these
problems
more
seriously
—
holding
themselves
to
higher
workplace
standards,
and
perhaps
even
blowing
the
whistle
on
colleagues’
misconduct.
Troublingly,
the
judiciary
hesitates
to
acknowledge
judges
retaliate
against
clerks.
Yet
the
judiciary’s
own
survey
indicates
only
42%
of
employees
would
report
mistreatment,
citing
fears
of
retaliation.
The
courts
should
create
a
point
of
contact
for
clerks
to
list
as
a
reference
for
future
jobs
rather
than
the
judge
they
clerked
for,
thereby
lessening
clerks’
concerns
about
retaliation
and
career
damage.
The
courts’
failure
to
act
on
evidence
that
mistreatment
is
not
rare
—
yet
rarely
reported
—
speaks
volumes.
The
judiciary
does
not
want
clerks
to
formally
report
misconduct,
because
then
they
might
need
to
modestly
discipline
some
judges,
which
they’re
loath
to
do.
Consider
this:
the
106
clerks
who
described
mistreatment
could
still
file
complaints
—
there’s
no
statute
of
limitations
under
the
JC&D
Act.
What
is
the
judiciary
doing
to
encourage
those
clerks
to
report?
Nothing.
And
the
courts
could
probably
not
only
identify
the
clerks,
but
who
they
clerked
for,
and
launch
some
investigations
into
the
most
problematic
judges.
Will
they
do
that?
Of
course
not.
The
courts
will
only
be
incentivized
to
act
through
aggressive
congressional
oversight,
sustained
media
scrutiny,
and
public
outcry.
While
judges’
ethical
lapses
have
generated
increased
scrutiny,
lawmakers
pay
little
attention
to
judges’
conduct
behind
the
bench.
Congress
must
reintroduce
the
Judiciary
Accountability
Act
(JAA)
and
extend
Title
VII
protections
—
including
protection
against
retaliation
—
to
more
than
30,000
exempt
employees.
To
be
clear:
clerks
do
not
file
complaints
because
they
are
not
protected
against
retaliation.
The
dearth
of
complaints
is
primarily
due
to
the
lack
of
Title
VII
protections.
Closing
this
disturbing
legal
loophole
will
increase
reporting
—
a
win
for
accountability
advocates,
and
a
loss
for
abusive
judges
who
currently
harass
clerks
with
impunity.
The
JAA
faces
an
uphill
battle
in
this
political
climate,
but
Congress
need
not
wait:
they
could
attach
its
crucial
anti-discrimination
protections
to
a
mandatory
annual
spending
bill,
like
the
National
Defense
Authorization
Act.
Congress
is
considering
the
judiciary’s
2026
budget
request
right
now
—
a
rare
annual
opportunity
to
tie
funding
to
meaningful
benchmarks
for
reform.
Disturbingly,
there
was
no
serious
discussion
about
this
—
despite
the
judiciary’s
request
for
more
workplace
conduct
funds.
Zeroing
out
the
judiciary’s
budget
until
they
make
meaningful
changes
might
get
their
attention.
Congressional
inaction
is
disappointing
but
not
surprising,
considering
that
Administrative
Office
of
the
U.S.
Courts
(AO)
Director
Robert
Conrad
wasn’t
asked
a
single
question
about
workplace
conduct
when
he
testified
before
Congress
this
spring,
even
though
it
was
the
second
item
in
his
written
testimony.
Nor
did
Congress
send
the
AO
an
oversight
letter
demanding
action
after
its
disturbing
workplace
survey
results.
Congressional
Democrats
will
throw
vulnerable
judiciary
employees
under
the
bus
to
keep
the
courts
happy
because
they’ve
ruled
against
Trump
administration
lawlessness.
Clerks
are
not
hapless
victims:
if
more
used
existing
processes,
we
could
highlight
flaws
and
actually
change
them.
For
example,
had
all
106
mistreated
law
clerks
in
2023
filed
EDR
complaints
seeking
reassignment,
and
were
the
judiciary
forced
to
reassign
and
allot
funding
for
106
additional
hires,
they’d
discover
just
how
broken
the
process
is
and
fix
it.
These
issues
are
particularly
urgent.
Right
now,
thousands
of
law
students
are
interviewing
for
and
accepting
clerkships.
Thousands
of
federal
clerks
are
concluding
their
clerkships:
those
who
were
mistreated
will
take
that
trauma
to
their
next
jobs
—
and,
when
they
become
managers,
they
may
mistreat
subordinates,
because
hurt
people,
hurt
people.
And
thousands
of
recent
law
graduates
are
about
to
begin
clerkships
in
the
most
dangerous
white-collar
workplace
in
America
—
the
federal
judiciary.
The
legal
profession
historically
turned
a
blind
eye
to
judicial
misconduct,
wrongly
trusting
the
judiciary
to
self-police.
No
longer.
We
must
hold
the
judiciary
accountable
for
repeatedly
failing
to
discipline
misconduct.
We
cannot
allow
the
courts
to
quietly
reassign
clerks
year
after
year
while
shielding
judges
from
accountability.
No
judge
should
be
above
the
law.
Yet
judges
rule
on
issues
of
national
significance
and
interpret
the
law
while
themselves
not
subject
to
those
same
laws.
We
cannot
trust
judges
to
be
fair
and
neutral
arbiters
of
disputes
as
long
as
the
law
permits
their
unethical
workplace
behavior.
Aliza
Shatzman
is
the
President
and
Founder
of The
Legal
Accountability
Project,
a
nonprofit
aimed
at
ensuring
that
law
clerks
have
positive
clerkship
experiences,
while
extending
support
and
resources
to
those
who
do
not.
She
regularly
writes
and
speaks
about
judicial
accountability
and
clerkships.
Reach
out
to
her
via
email
at [email protected] and
follow
her
on
Twitter
@AlizaShatzman.