Law Clerks Rarely Quit. Maybe More Should. 

// Judge Aileen Cannon, who’s been in the news as the judge presiding over one of the cases against former president Donald Trump, is in the news for a very different reason. As David Lat first reported in his newsletter, Original Jurisdiction, several of Cannon’s term clerks quit within the past year.

“Clerks don’t quit,” one law professor tweeted in response.

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Actually, some do. Many more consider it or wish they had. And far too many are fired. But it’s notable when a clerk leaves early, considering the prestige of the position, the questions it would raise for clerks’ future employers, and the risk of provoking a judge’s ire and risking retaliation or reputational harm, since federal clerks lack whistleblower or retaliation protections.

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And, considering that Cannon has only been on the bench for a few years, she has probably hired fewer than a dozen clerks total. Two departures within a year is noteworthy.

These departures raise questions about whether turmoil in chambers caused delays in the Trump case. District judges typically have two clerks per term. There’s more than enough work to go around, particularly in a bustling district like the Southern District of Florida, when chambers is fully staffed. So, clerks quitting creates more work for those left in chambers. It also requires the judge to hire a new clerk quickly and train them. That takes time.

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Contrary to the political hay some may make, this isn’t about Cannon’s politics. Or her handling of the Trump case.

Why would anyone quit a clerkship? After all, clerkships are messaged as pivotal post-graduate opportunities that confer prestige and incomparable connections from working closely with a judge. They’re overwhelmingly viewed as launchpads to career success in private practice, public service, and academia.

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Law clerk issues too rarely make news. Judges’ treatment of clerks and chambers culture should be on public display. Perhaps it will incentivize judges to look inward and change their behavior.

How common is it for law clerks to quit? Probably more common than you’d think. But not often enough, considering the challenges clerks face. I’m privy to the varying degrees of nuanced and negative clerkship experiences because of The Legal Accountability Project’s work.

This is one of the federal judiciary’s many blind spots. They’ve historically failed to collect and report data on law clerk hiring, workplace culture, or the prevalence of mistreatment.

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Information about clerks leaving clerkships early is particularly important for clerkship applicants — law students and recent graduates — because it’s a red flag about problems in chambers. It could suggest the judge is a poor manager, or that they mistreat clerks. This information has historically, and conveniently, not been shared (though Heidi Bond, in a 2018 letter to the Senate Judiciary Committee, argued the judiciary should document instances of clerks leaving early to flag judges for remedial training).

Clerks don’t just “stick it out” and endure mistreatment because they’re advised to. They understand the professional repercussions of leaving a clerkship without a positive reference, of having to explain the early departure to a future employer, and of being at odds with a powerful judge.

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I’ve had thousands of conversations with clerks since I launched LAP. Some leave early. Many more considered it or wish they had. But the headwinds in the legal profession — including fear, a culture of silence, and an interest in self-preservation — cut heavily in favor of sticking it out.

Quitting a clerkship may be viewed by some as extreme. But it’s a testament to the lack of effective options to address wrongful conduct, including a dearth of: effective and confidential complaint channels, mechanisms for reassignment, points of contact for clerks seeking assistance, and legal redress. It’s a dire statement about the state of federal clerkships when clerks’ options are: tough it out, endure mistreatment, and hope to leave with a good enough reference; or quit to salvage your mental health and well-being, and risk the reputational damage.

I hear from clerks about all manner of bad behavior in chambers: judges refuse to train clerks when they start — delegating training to outgoing clerks. This causes miscommunication and failure to convey expectations. Then, judges berate clerks for perceived mistakes.

Judges overwork clerks — expecting them to work late nights and weekends, even when the judge isn’t in chambers. Judges fail to convey feedback constructively or meet with their clerks. They yell or throw things. They disparage clerks or pit them against each other.

Some judges fire clerks and even retaliate against them, intervening with post-clerkship jobs or bar applications with negative references, getting them blackballed from jobs. Troublingly, there’s no judiciary oversight over judges’ daily dealings with clerks, no effective points of contact for mistreated clerks, and no support for clerks enduring abuse.

Why do these problems persist? Judges — the most powerful members of our profession — are placed on a pedestal and treated as if they can do no wrong, as if they deserve absolute respect and total deference. They don’t. And clerks suffer the consequences.

Law school faculty members, clerkship directors, and deans are wrapped up in their relationships with judges. It’s why they’ve resisted efforts at transparency and reform, turned a blind eye to workplace mistreatment, and continued to message that “challenging” clerkships (a euphemism for mistreatment) are “worth it” for the prestige.

We won’t solve these problems as long as law schools funnel students into clerkships they know or suspect are bad, to improve their publicly reported clerkship numbers and maintain public perception of the schools. Perhaps schools should be required to collect and report data on clerkship mistreatment to the ABA annually as a condition of their accreditation.

The legal profession — law firm partners, as well as government employers — have also historically failed to support clerks, despite having an interest in ensuring productive clerkship experiences and safeguarding clerks’ welfare. They prioritize hiring of former clerks and expect that when interviewees are asked about their clerkships, they’ll rave. Anything less than a glowing review is considered a red flag, thus perpetuating industry-wide dependence on judges’ references and refusing to acknowledge judges’ fallibility.

And the judiciary itself has long perpetuated problematic behaviors in its ranks by refusing to acknowledge these problems, let alone take meaningful steps to solve them. It has been more than six years since former judge Alex Kozinski stepped down, yet the federal judiciary has implemented few changes. A few window dressing changes to the underutilized Model Employee Dispute Resolution (EDR) Plan. Creating a Workplace Conduct Working Group to “study” these issues. The judiciary insists it can internally “self-police,” despite overwhelming evidence to the contrary — including this situation with Cannon, which they have yet to respond to.

Right now, judiciary Directors of Workplace Relations (DWRs) — law clerk points of contact — are totally in the dark. The judiciary claims their decentralized system works because DWRs know their circuits best. But when I speak with them and point out, for example, that Judge X just fired several clerks, they respond that they don’t know about that because they’re not located in that courthouse, or because the clerks did not approach them.

The onus should not be on mistreated clerks to enforce judicial accountability. It should be a red flag for the entire courthouse when clerks leave early. Fellow judges should take notice. And the judiciary should keep track of this. Yet there’s historically been a toxic belief that if it’s not my chambers, it’s not my business, and an unwillingness by fellow judges to intervene. This lack of bystander intervention perpetuates bad behavior. It’s also inexpedient for judges, since clerk resignations create aftershocks throughout courts.

What would finally solve these problems? Legislative, policy, and clerkship transparency changes.

The federal judiciary is exempt from Title VII of the Civil Rights Act. Law clerks and federal public defenders cannot sue their harassers and seek damages for harms done to their lives, careers, reputations, and future earning potential. Congress should reintroduce and pass the Judiciary Accountability Act (JAA) — common-sense, nonpartisan legislation that would correct this injustice for more than 31,000 judiciary employees — this year.

Judges should not be uniquely exempt from the anti-discrimination laws they enforce. And because clerks lack legal protection against retaliation, they are routinely silenced. They fear speaking up about mistreatment, let alone filing a complaint against a life-tenured federal judge. Yet if clerks do not file complaints, we’ll never hold judges accountable for misconduct, change judiciary culture, or raise the bar on judiciary workplace civility.

Policy changes are necessary, too. Revise the EDR Plan to make it more complainant-friendly and provide meaningful protection against retaliation. Update the Judicial Conduct and Disability Act. Create multiple confidential reporting channels. And hire more qualified, better-trained judiciary points of contact to address law clerk issues.

But the best opportunity in a generation to correct the secrecy, opacity, and lack of accountability in judicial clerkships is LAP’s Centralized Clerkships Database, legal technology that democratizes information about judges as managers and clerkship experiences. LAP’s database launches in a few days for the first cohort of student users. Current and former clerks nationwide can share their clerkship experiences with LAP and with prospective clerks from every law school. Students applying for clerkships can register now for database access. Soon, they’ll be able to log in and read hundreds of candid post-clerkship surveys to help them identify a positive working relationship and avoid judges who mistreat clerks.

The judiciary has failed to self-police. Congress could hold the judiciary accountable through legislative oversight but has failed to do so. So, LAP is holding judges accountable through transparency in chambers culture and workplace treatment. Judges who mistreat clerks can no longer hid behind the clerkships whisper network and the professional deference they take for granted. Their managerial style, chambers culture, and treatment of clerks will be on display for any clerkship applicant who pays $20 for access to the unvarnished truth about judicial clerkships from chambers nationwide. LAP has already seen judges incentivized to change their behavior, since LAP’s efforts have gained national traction.

I’m glad the legal profession is finally talking about mistreatment during clerkships. This is one aspect of the larger cultural change I’ve been talking about for several years.

Negative clerkship experiences are not rare. Unfortunately, they’re still rarely shared publicly. We’re changing that by shining a public spotlight on behavior that has historically been shrouded in secrecy.

We should normalize both leaving your clerkship early if you’re mistreated and talking about it. A “challenging” clerkship is never “worth it” for the prestige. Clerks should not “tough it out.” As my experience illustrates, it’s not just a year of your life. In the worst circumstances, it’s a year that could derail your career.

Quitting your clerkship should be no bigger deal than quitting any other job. It’s a big decision. You’ll need to find an off-cycle job and answer questions about why you left early. But it’s feasible. Others have done it.

And the legal profession should support clerks. Legal employers should agree not to call judges for references when clerks confide that they were mistreated. Law schools should affirmatively reach out to employers to assist mistreated clerks with their post-clerkship job searches. A judiciary point of contact should remind judges whose clerks quit that retaliating against them violates their judicial code of conduct — and someone is watching.

The legal profession has conferred overwhelming and unchecked power on judges. We’re all responsible for fixing it.

I’m glad Judge Cannon’s clerks did not “stick it out” and endure mistreatment. The next step is talking about it.

Rather than contribute to a culture of silence and fear, let’s promote a culture of open and honest dialogue about the full range of clerkship experiences, so future clerks don’t have to endure what too many of us endured, and still others continue to endure in silence.

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 X/Twitter @AlizaShatzman.

 

Topics

Aileen Cannon, Aliza Shatzman, Clerkships, Courts, Donald Trump, Judiciary Accountability Act