Best listening experience is on Chrome, Firefox or Safari. Subscribe to Federal Drive’s daily audio interviews on Apple Podcasts or PodcastOne.
Law clerks form a largely unseen network of support for the judiciary branch of government. My next guest says clerks lack protection from and the means to redress harassment and discrimination. Sometimes it’s the judges that do the harassing and discriminating. For more, the president and co-founder of the Legal Accountability Project Aliza Shatzman spoke to the Federal Drive with Tom Temin.
Tom Temin: And you have formed the Legal Accountability Project. And we’ll get into what its aims are. But tell us about the job of law clerk. Is this something that people only do temporarily while they’re students? Or can it be a career? What is the nature of that particular job?
Aliza Shatzman: Sure. So law clerks are typically fresh out of law school. So this is their first legal job. Increasingly, some federal judges hire folks with one or two years work experience, but it’s important to underscore these are very young attorneys at the start of their careers. And for federal employees, so [assistant U.S. attorneys], trial attorneys, other folks who appear before federal judges, if you look up at the dais, the young attorneys flanking the judge, those are law clerks. So law clerks’ tasks vary from chambers to chambers. But basically, they spend one or two years working for and learning from a judge. They conduct research, they write orders and opinions. They go to court with the judge. They assist with judicial decision-making. For folks who want to become trial attorneys, it’s an excellent crash course in trial lawyering. You learn from the judges and the attorneys you see in the courtroom. And in the best of circumstances, it really creates a lifelong mentor-mentee relationship, where your judge will help you get your next job, serve as a reference. What I’m trying to raise awareness of is the worst of circumstances where mistreatment in chambers can really devolve into a long term negative relationship between judge and clerk and judges, particularly life-tenured federal judges, but all judges, there is an enormous power disparity between those folks, the most powerful members, the legal profession, and brand new young attorneys just starting out their careers.
Tom Temin: Sure and have you clerked, and what did you experience?
Aliza Shatzman: Sure, so I served as a law clerk and D.C. Superior Court during the 2019 to 2020 term. D.C. Superior Court is DC’s local trial court, but our judges are unique and that they’re Senate-confirmed for 15 year terms. So unfortunately, beginning pretty much just weeks into the clerkship, I began to experience gender discrimination and harassment by the judge for whom I clerked. He would kick me out of the courtroom and tell me I made him uncomfortable and he just felt more comfortable with my male co-clerk, told me I was aggressive and nasty, a disappointment. The day that I found out that I passed the D.C. bar exam so a big day in a young attorney’s life, he called me into his inner chambers. He got in my face and said, “You’re bossy. And I know bossy because my wife is bossy.” And it was just devastating. I mean, as I mentioned, this is my first job out of law school, I was a couple months into my legal career. And this person who had enormous power over my life just seemed to be mistreating me every single day. We eventually transitioned to remote work during the pandemic, and I moved back to Philly to stay with my parents. During the six-week period, the judge basically ignored me before he called me up and told me he was ending my clerkship early because I made him uncomfortable and lacked respect for him. So I reached out to D.C. Court’s HR because we did not have an employee dispute resolution or EDR plan in place in my courthouse when I was a law clerk that might have enabled me to seek some sort of redress for these workplace challenges. And D.C. Court’ss HR told me there was nothing they could do because HR doesn’t regulate judges. And then they asked me didn’t I know that I was an at-will employee? So after all, that it took me about a year to get back on my feet. But I eventually moved back to D.C., secured my dream job as a prosecutor in the D.C. U.S. Attorney’s Office. And I was two weeks into training there when I was alerted the judge had made negative statements about me during my background investigation, that I would not be able to obtain a security clearance, and that my job offer was being revoked.
Tom Temin: Wow. So it sounds like this went from simply being upset to being really angry. I know I would be.
Aliza Shatzman: And I think my story highlights a couple things. It highlights that mistreatment and chambers can really devolve into a long-term negative or long-term retaliatory relationship between judge and clerk that goes so far beyond just a poor law clerk-judge relationship, and it also really highlights some of the other things I talked about, which are some judges act as if, believe that they are above the law. And right now they are not subject to anti-discrimination laws like Title VII in the Civil Rights Act. They are very few workplace policies in these courthouses and judicial misconduct policies right now are historically unenforceable against these judges, which makes it all enormously difficult for a law clerks seeking judicial accountability to get any sort of justice for themselves and accountability for the judges who mistreated them.
Tom Temin: We’re speaking with Aliza Shatzman, she’s president and co-founder of Legal Accountability Project. And before we get into the aims and goals of the project, two questions: One, do you believe it’s widespread among clerks? And secondly, what about other judicial branch employees that are not clerks that might be just full-time career employees, in the judicial branch, that also work for judges in effect?
Aliza Shatzman: Sure. Great questions. So there are about 30,000 federal judiciary employees. That’s law clerks, that’s permanent clerks, that’s other courthouse employees. All of those folks are unprotected right now by Title VII of the Civil Rights Act. And permanent courthouse employees face unique considerations, because whereas a law clerk, if they file a complaint, they’ll be there for a year or two, and then they can, I hope, get some other job, get away from the judge who mistreated them. Permanent courthouse employees will need to stay at that job long-term. So they face unique considerations. So it’s important to talk about them as well. I believe that this problem of judicial misconduct, harassment, gender discrimination, retaliation, this is pervasive in the federal courts and in the state courts. And what we see is there is just an enormous data discrepancy between the number of law clerks filing formal complaints against judges, which is pretty negligible, and that when the judiciary conducts a rare workplace assessments, for example, the D.C. Circuit conducted one last year what we see is 57 law clerks reported harassment or retaliation, an additional 134 employees reported witnessing or hearing about problematic behaviors. And while the judiciary leadership continues to say harassment and retaliation are not pervasive in the federal courts, I and other mistreated clerks know differently.
Tom Temin: All right, so that leads us to the Legal Accountability Project. What does that consist of and what are your aims here?
Aliza Shatzman: Sure. So the Legal Accountability Project is a new nonprofit I launched recently with a WashU Law classmate Matt Goodman. We’re basically seeking to ensure that as many law clerks as possible have a positive clerkship experience. And then we’re extending support and resources to the ones who don’t. We have two major fall initiatives that we are working on. The first is a clerkships reporting database whereby current and former clerks will be able to make a report about their clerkship, they’ll be anonymous, but they’ll report on their judge – good, bad, medium, we want to hear everything. And all the law students at the participating institutions can read all the reports. It’s really a way for law students to look out for misbehaving judges and also know the good ones to apply to. The Legal Accountability Project is what I wish existed when I was a law student applying for clerkships, what I wish existed when I was a law clerk facing mistreatment and unsure where to go. And when I was a former clerk engaging in the judicial complaint process. So that is our first initiative and it’ll combat a couple things. It’ll combat the whisper networks, which are currently one of the only ways for law students to find out which judges to avoid. And historically, law clerks are unwilling to provide the full scoop to law students for a variety of reasons, fear of reputational damage, fear of retaliation by the judge. So we’re trying to combat that. We’re also trying to combat the problematic silo effects I see as I’m talking to law schools, where some schools have information on misbehaving judges. They may or may not warn students, but if a couple of schools are hoarding that information that does nothing for all the other law students applying each year. The second initiative we are working on is a workplace culture assessment of the federal and state judiciaries. As I mentioned earlier, the federal judiciary has been notoriously unwilling to conduct a widespread assessment of workplace culture, which I think is a red flag, either that they know there is misconduct, that they don’t want to be unveiled, or they don’t care that much that misconduct is occurring, and law clerks are being mistreated. So our assessment is going to be sent to the past 10 to 20 years worth of law clerk alumni from participating institutions. And we’re finally going to elucidate data on the scope of the problem because that is the first step toward crafting effective solutions. This type of data collection analysis hasn’t been done before. So we are very excited about it.
Tom Temin: And I just wanted to touch on that one point you made about somehow this bad experience in the judiciary branch that you had bled over to the Justice Department in the executive branch. And it sounds like maybe an unstated goal is to make sure maybe Justice Department that hires as you say, people that working in the U.S. attorney’s offices are not unduly influenced by a bad judge on the other side of the the government.
Aliza Shatzman: Absolutely, yes, that is enormously important. I think some of these Justice Department employees need to really interrogate a negative reference by a judge. I mean, in my case, they looked at this outrageous negative reference that was totally different from everything in my application. They didn’t ask any follow up questions to the judge. So they afforded me no opportunity to defend myself and they just tossed me aside with no regard for how this would affect my life and my career and reputation. And so I think employers so rarely give a negative reference as I’m talking to them. They say, well, I would give a lukewarm reference so as to not cause this type of long-term negative effects, not cause scrutiny to be forced upon myself. I think it’s important that legal employers in general, Justice Department officials in particular, absolutely are interrogating these negative references. My concern is that they kind of defer to judges because they’re worried perhaps the judge will retaliate against our Justice Department clients in the future, will rule against us in the future. But that is not a reason to just toss young attorneys aside.
Tom Temin: Yeah, that would make that particular judge more than just a bad employer would make him or her a bad judge.
Tom Temin: And do you have any significant backers for this project?
Aliza Shatzman: So we’ve received privately a lot of support from various aspects of the legal community. There’s a lot of interest among law schools and participating and privately I’ve received lots of support from federal judges from sitting judges who tell me they support what I’m doing. They think it’s time to extend Title VII protections. They think it’s time to create this type of clerkships database. So we’re very excited about the support we’ve received. Later this summer, we are going to be announcing our initial law school partners, which looks like will be about 10 schools. We hope that eventually every school will come on board, and the ones who don’t we will circle back with them next year. And we are already seeing a groundswell from law students who want these resources and who are excited to engage with me on these issues.
Tom Temin: Aliza Shatzman is president and co-founder of the Legal Accountability Project. Thanks so much for joining me.