Courts, Law Schools

We Should Tell The Truth About Judicial Clerkships

While law schools are currently part of the problem, they can be part of the solution.

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Title Law school on a book and a gavel.

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It has been almost two months since I submitted a Statement for the Record for the March 17, 2022 House Judiciary Subcommittee Hearing, detailing my personal experience of harassment and retaliation by a former DC Superior Court judge. Back when I was a law clerk, I could never have imagined how my clerkship experience would inform my advocacy work now.

I decided to clerk because I hoped it would launch my career as a prosecutor. However, beginning just weeks into the clerkship, the judge for whom I clerked began to harass me and discriminate against me based on my gender. He would throw me out of the courtroom, telling me that I “made him uncomfortable” and he “just felt more comfortable” with my male co-clerk. He told me I was “bossy,” “aggressive,” “nasty,” and “a disappointment,” and that I had “personality issues.” The day I learned that I passed the DC Bar Exam, he called me into his chambers and told me, “You’re bossy! And I know bossy because my wife is bossy!” I cannot remember a day during my clerkship when I did not cry in the bathroom at work or cry myself to sleep.

The judge eventually ended my clerkship early, telling me that I “made him uncomfortable” and “lacked respect for” him but he “didn’t want to get into it.” He did not approve of the fact that I did not conform to workplace gender stereotypes—because I was assertive, confident, and voiced my opinions. When I reached out to Human Resources (HR) for the DC Courts, they told me there was nothing they could do because “HR doesn’t regulate judges” and that “judges and law clerks have a unique relationship.” They asked me, “Didn’t I know that I was an ‘at-will employee?’” They refused my requests for a reassignment.

I reached out to my law school for support and assistance. I learned that the judge had a history of misconduct, and that multiple professors and administrators were aware of it at the time I accepted the clerkship.

One year later, I accepted a position with the DC U.S. Attorney’s Office (USAO)—a job I had been working toward since I started law school five years earlier. Two weeks into training, the USAO alerted me that the judge had made negative statements about me during my background investigation. I was told that I “would not be able to obtain a security clearance” and that my job offer was being revoked. I was devastated. One week later, the USAO also canceled a previously scheduled interview for a different position, based on the judge’s same negative reference. I was only two years into my legal career, and the judge seemed to have limitless power to trash my reputation and destroy my career.

I filed a formal complaint with the DC Commission on Judicial Disabilities and Tenure (CJDT), the regulatory body for DC judges. I participated in the investigation of my former supervisor. I discovered that judicial regulatory bodies are set up to protect misbehaving judges, not mistreated law clerks—but that is not unusual, when the misbehaving judge’s friends and colleagues are the ones deciding whether to discipline him. There are no effective safeguards to prevent the type of mistreatment I experienced, nor are there real remedies available for mistreated clerks.

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The former judge has since been “involuntarily retired” from the DC bench, for reasons other than mistreating his clerks. While I am relieved that he can no longer abuse his position of power, this seems like insufficient punishment, considering the damage he has done to my life.

I now spend my time writing, speaking, and advocating to prevent harassment in the judiciary. I have been forced to grapple with my complex emotions surrounding clerkships—including whether I think law students should clerk, considering the unregulated environment of a judicial chambers.

Early in my law school career, I realized that I wanted to be an Assistant U.S. Attorney (AUSA) at the DC USAO. I chose to clerk in DC Superior Court because that is the jurisdiction in which DC AUSAs practice. The judge for whom I clerked was a former AUSA himself. At least one of my professors made calls on my behalf to help me secure the clerkship. I knew law school rankings were affected by the number of students who secured judicial clerkships, and that my law school was incentivized to encourage me to clerk. But clerking seemed like a good career move. It would offer me a crash course in trial lawyering and judicial decision-making. My law school instructed me to accept the first clerkship I was offered, so I did.

Unfortunately, as more stories about judicial misconduct have come to light, so too have revelations that law schools are aware of the scope of the problem. However, law schools either push students to clerk for notoriously misbehaving judges, because the clerkships are so prestigious, or they dissuade women and minorities from clerking for certain judges, thereby foreclosing important professional opportunities.

While law schools are currently part of the problem, they can be part of the solution. I am working productively with law schools on some urgently needed reforms. These include internal databases where alumni can report on their clerkship experiences, as well as follow-up protocols to check in with alumni once their clerkships have ended. I also hope to conduct a pilot program in the fall, contacting the past 10 years’ worth of law clerks from various institutions, to administer small-scale workplace culture assessments. These changes will help enable prospective clerks to avoid misbehaving judges. All law schools should implement these reforms.

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When students from my alma mater contact me seeking advice about clerkships, I offer interview tips and guidance. However, it feels wrong to enthusiastically encourage students to clerk. Clerkships can be valuable experiences, and they can foster lifelong professional connections. Yet judicial chambers are workplaces conducive to harassment, and mistreated clerks have limited avenues to report misconduct or seek help.

The federal judiciary is currently exempt from Title VII of the Civil Rights Act of 1964, making it distinct even from Congress. The Judiciary Accountability Act (JAA) (H.R. 4827/S. 2553) would begin to address the lack of workplace protections in the federal judiciary. The JAA would finally enable judiciary employees—including law clerks and federal public defenders—to sue their harassers and seek damages for harm done to their careers, reputations, and future earning potential. The JAA would also revise the judicial complaint process, create a confidential reporting system and standardized Employee Dispute Resolution (EDR) plan, and require the judiciary to collect and report some data on judicial complaints, workplace culture, and clerkship hiring.

Congress should pass the JAA this year. However, we also need a culture shift in the legal profession. It will be quite a leap to go from the current landscape—where law clerks do not file complaints against judges because they fear retaliation by the judge or reputational damage—to a place where law clerks feel comfortable suing their Senate-confirmed former supervisors.

The legal community deifies judges and dissuades law clerks from speaking out against them. We are taught in law school that judges deserve absolute respect and total deference. Speaking out against a judge can cost a law clerk her current job, her reputation, or even her entire legal career. Furthermore, institutions—including courts, judicial regulatory bodies, legal employers, and even law schools—protect misbehaving judges, not mistreated clerks. There are more crooked judges on the bench than the legal profession would care to admit. Current data points capture only a fraction of the judges engaging in misconduct, since law clerks rarely file formal complaints.

Few former clerks are willing to speak openly about their negative clerkship experiences. This needs to change. By discouraging clerks from talking about the harassment we experienced, the legal community sends a message that mistreated clerks should be ashamed of what happened to them. We should believe and affirm law clerks, and we should encourage everyone—regardless of their identity—to bring their full selves to work, including to a judicial chambers.

Until we can effectively address the problem—by preventing harassment in the judiciary, removing more harassers from the bench, and punishing judges who mistreat their clerks—law schools and attorneys should stop pressuring students to clerk. A judicial clerkship should no longer be one of the required “check boxes” for a legal job. Furthermore, law schools should stop purveying the dangerous message that applicants must accept the first clerkship they are offered.

My story about judicial misconduct is not rare. I hope more former clerks will feel empowered to tell the truth about clerkships. We owe it to the next generation of attorneys to ensure that their workplaces are safe, and we should take forceful steps to ensure that misconduct in the judiciary is no longer tolerated.

Aliza Shatzman is an attorney and advocate in Washington, DC, who writes and speaks on the subject of preventing harassment in the judiciary. Follow her on Twitter @AlizaShatzman.

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