How To Protect Law Clerks From Harassment

// Some judges believe they are above the law. That’s one thing I’ve learned over the past few months, as I’ve been advocating for judicial accountability and workplace protections for judiciary employees. News reports about judicial misconduct have been trickling out — judges are trying to conceal the results of a workplace culture assessment, focusing on the “leak” of a survey rather than the troubling results and refusing to attend workplace conduct training. Anecdotally, mistreated law clerks reach out to me every day to report judicial misconduct.

I submitted a Statement for the Record for a House Judiciary Subcommittee hearing in March 2022 to lend my support to the Judiciary Accountability Act (JAA) (H.R. 4827/ S. 2553), legislation that would extend Title VII protections to judiciary employees. Since then, I’ve been writing and speaking about this issue. Now, I’m launching a nonprofit to tackle these issues full time — to protect judiciary employees and hold judges accountable.

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After the hearing, I shared my story of harassment and retaliation by a former DC Superior Court judge in numerous forums. I speak publicly about my experience for several reasons. First, I want to combat the toxic culture of silence in the legal community that discourages law clerk reporting. Furthermore, I aim to empower others to speak out, stand up for themselves, file complaints, and remove more abusers from positions of power, in the judiciary and in other industries. Additionally, I want law clerks who have faced — or are currently facing — mistreatment to know that they are not alone. Also, by attaching a personal story to an abstract issue, I aim to humanize this topic for lawmakers, stakeholders, judiciary leadership, and the larger legal community. Furthermore, my story illustrates why reforms are so urgently needed: some judges believe they are the law.

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For anyone who thinks my story is particularly outrageous, my point is this: my story is not rare. For every law clerk who speaks out, many more are harassed in state and federal courthouses every day. They are suffering in silence. They will probably never speak out. Judiciary leadership continues to insist that gender discrimination, harassment, and other judicial misconduct are not pervasive in the federal courts. Mistreated judiciary employees know better.

Current and former law clerks send me messages every day, telling me they could never speak out or file a complaint, but are confiding in me. I am happy to strategize with them, share resources, and assist however I can. I have received many messages from law clerk alumni whose law school career centers insist that they are doing an excellent job of protecting their students from misbehaving judges and do not need to make any changes.

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I recently launched a nonprofit with a Washington University School of Law classmate, Matthew Goodman, called The Legal Accountability Project. As we explained in our launch video, our goal is to ensure that as many law clerks as possible have positive clerkship experiences, while extending support and resources to those who do not. Through partnerships with law schools and other stakeholders, as well as data collection and analysis, and law school programming, we intend to finally quantify the scope of discrimination, harassment, and other misconduct in the courts, and use the results of our research to craft effective solutions.

I’ve learned a lot from my conversations with law schools. All schools have room to improve. Some schools understand and acknowledge the scope of the problem of judicial misconduct; others do not. Some care enough to make changes now; others do not.

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When I ask specifically whether law schools warn prospective clerks about judges with a history of misconduct, I repeatedly see a silo effect. Some law schools are able to warn some prospective clerks about judges with a history of misconduct — but they don’t effectively warn everyone. Furthermore, the siloed-off information that individual law schools may or may not maintain about misbehaving judges does nothing for prospective clerks at neighboring institutions who do not benefit from this institutional knowledge, and who unwittingly walk into hostile work environments.

The Legal Accountability Project will partner with as many institutions as are willing to work with us now. Next school year, we will circle back with the ones who haven’t gotten on board, once law students on campuses across the country see how valuable our resources are. We hope students will ask their schools to participate. Law students demanding a healthier, safer, more diverse, and more equal profession will be at the forefront of this movement. I frequently engage with law student organizations: many are excited to invite us to campus and talk about these issues. They know this is an unaddressed issue. I advocate for them, because we owe it to the next generation of attorneys to ensure that their workplaces are safe.

The Legal Accountability Project is collaborating with law schools on two major fall initiatives. We urge every institution to consider participating. One is a centralized Clerkships Database, where law clerks can report on their clerkship experiences, and prospective clerks can read the reports to avoid misbehaving judges. The second is a Judiciary Workplace Culture Assessment that will survey the past 10 years’ worth of law clerk alumni at various institutions to quantify the scope of judicial misconduct. From the feedback I receive from law students, as well as current and former law clerks, I know that these resources are greatly demanded and desperately needed.

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The centralized Clerkships Database will enable every law student and every current or former clerk from any institution to create an account, enter a survey response into the database about their clerkship (either positive or negative), and read the reports. Every law student at every school will benefit from the centralized database — and law schools should care about the wellbeing of their law clerk alumni, not just the fancy clerkships on their resumes. The centralized database will prevent the silo effect whereby law students only benefit from institutional knowledge if their schools collect and maintain reports on misbehaving judges, and if their schools effectively warn students.

Some law schools conduct post-clerkship surveys, and some maintain this information in databases but these institutions are the minority. Furthermore, the internal databases are not intended to warn students about misbehaving judges; they are intended to funnel more students into clerkships. Law schools rarely receive negative reports, because the surveys and databases are not properly set up to receive them. Furthermore, when law schools do receive negative reports, it is unclear what they do with them — whether they follow up with the mistreated law clerks; remove these judges from the database; warn students not to apply to them; or, in some cases, nothing at all. No law school’s post-clerkship survey or clerkships database effectively captures the scope of the problem. Furthermore, every institution that hoards this information within its institutional silos but does not share it with neighboring institutions contributes to the problem of judicial misconduct.

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I am very sensitive to fears about retaliation and reputational harm, because of my personal experience; as well as concerns about anonymity, and questions about privacy and security. As we collaborate with law schools, we constantly consider these issues to ensure that law clerk alumni can report anonymously and that they are protected from retaliation. However, we firmly believe that law clerks should report on their experiences in a centralized database, in order to protect every prospective clerk. For mistreated clerks who do not report, we can reasonably expect that the judges who harassed them will harass future clerks as well.

The Judiciary Workplace Culture Assessment will do what the federal judiciary has been notoriously unwilling to do — conduct a widespread survey to quantify the scope of the problem, and publicly report the results. The first step toward crafting effective solutions is to identify problem areas. Judiciary employees deserve to know whether their workplaces are safe, and whether existing resources are effectively utilized. The judiciary occasionally conducts small-scale internal surveys intended for policy purposes. However, the results are not intended to be public. We will collect, analyze, and publicly report the results of our workplace assessment on our website; in forthcoming legal scholarship; and to lawmakers, federal judiciary leadership, and the American Bar Association (ABA).

Data collection is a statement of our values. The fact that the federal judiciary has been unwilling to collect and report these data, suggests two things. First, it suggests that they do not care that judges are harassing and retaliating against their employees. Second, it suggests that they have something to hide — otherwise, they would release the results of their small-scale surveys. An internal survey is worthless, since the judiciary repeatedly refuses to make changes.

Our workplace assessment will elucidate data on the types of clerks facing mistreatment; the availability and accessibility of resources in their courthouses; and their concerns about reporting. Stakeholders are excited about this data, because it has never been collected before. We will need law schools to send our assessment to the past 10 years’ worth of law clerk alumni. We are confident that they maintain this contact information. We urge every institution to partner with us in this effort. The more robust data we have, they better able we will be to finally quantify the scope of judicial misconduct. Then, we can craft policy solutions to protect judiciary employees and hold judges accountable for bad behavior.

I shoot out of bed early in the morning, ready to hit the day, because I care deeply about these issues. I am committed to ensuring that what happened to me does not happen to future generations of law clerks. I was harassed, retaliated against, and driven from the profession by a then-judge who acted as if he was above the law. The former judge seemed to believe he was untouchable because he was Senate-confirmed — that he could mistreat his law clerks with impunity. I will fight every day to ensure that my clerkship reality is no one else’s reality. I hope everyone — law students, law schools, current and former clerks, practicing attorneys, and even some judges — will join The Legal Accountability Project in these efforts.

Aliza Shatzman is the President and Co-Founder of The Legal Accountability Project, a nonprofit that aims to ensure that as many law clerks as possible have positive clerkship experiences, while extending support and resources to those who do not. Aliza regularly writes and speaks on the subject of judicial accountability. You can find Aliza on Twitter @AlizaShatzman or reach out to her via email at [email protected].

Topics

Aliza Shatzman, Clerkships, Courts, Law Clerks, Law Schools, Sexual Harassment, The Legal Accountability Project, Workplace Harassment