Not less than 106 federal legislation clerks have been mistreated by judges in 2023, in line with the judiciary’s personal office local weather survey, that means as many as 106 federal judges dedicated actionable misconduct. But simply three judicial misconduct complaints have been filed by legislation clerks in 2023. A disturbing discrepancy, till you understand how ineffective judiciary reporting mechanisms are — by design.
Living proof: there’s an fascinating merchandise buried within the Judicial Convention of america (JCUS) lately launched biannual assembly minutes: “the Subcommittee on Office Conduct accredited a request on behalf of the Committee … to permit an extra time period legislation clerk and profession legislation clerk to be assigned to a chief district choose’s chambers by means of August 2026 with a view to handle a office conduct matter.” Sometimes, the judiciary reassigns clerks who allege critical mistreatment — addressing one discrete state of affairs and separating choose from clerk whereas failing to unravel broader systemic issues. With out establishing authorized guardrails to forestall judges from mistreating clerks and getting away with it, these issues persist, dedicated by the identical repeat offenders. What’s most fascinating about this reassignment isn’t who this abusive district court docket choose who hires for two-year phrases could be, however the systemic issues it illustrates.
This isn’t the primary such reassignment: a number of years in the past, two district court docket clerks have been concurrently reassigned partway by means of their two-year clerkship to deal with a office situation. That choose was not disciplined on the time: she employed new clerks who, as a result of judiciary’s lack of transparency and accountability, have been unaware of the circumstances surrounding the earlier clerks’ departure. With no remedial coaching, the choose presumably continued to mistreat clerks. Nevertheless, she may very well be disciplined now, if the Fourth Circuit learns from previous failures.
Why this patchwork system of reassignments? It stems from a disturbing blind spot: the federal judiciary, and its greater than 30,000 staff, are exempt from all federal anti-discrimination legal guidelines, together with Title VII of the Civil Rights Act of 1964 and the People with Disabilities Act. When you’re harassed, unjustly fired, or retaliated in opposition to by a choose, in contrast to in most different workplaces, you can not sue and search redress. Judges are actually above the anti-discrimination legal guidelines they interpret. As an alternative, the courts peddle a toothless “various” —Worker Dispute Decision (EDR), missing impartiality, clear pointers, due course of, and significant redress. That’s why it’s grossly underutilized — out of hundreds of federal legislation clerks nationwide, between 2021 and 2023, simply seven EDR complaints have been filed by legislation clerks, despite the fact that greater than 100 clerks described actionable misconduct within the courts’ personal survey that yr.
Legislation clerks hardly ever report mistreatment as a result of they don’t consider their issues will likely be taken significantly after which be robustly, impartially investigated. They’re skeptical the method will likely be truthful, since fellow judges oversee it: judges are unable to impartially choose colleagues’ misconduct. Importantly, clerks concern retaliation, which they lack authorized safety in opposition to beneath Title VII. Some clerks open up to a court docket level of contact like a Director of Office Relations (DWR) or nationwide Workplace of Judicial Integrity, which the courts misleadingly conflate with reporting. Sadly, disclosure typically stops there, since court docket directors dissuade clerks from submitting complaints.
Whereas reassignment might help one explicit clerk, with out disciplining or coaching the problematic choose, issues will recur. Abusive judges know they gained’t be held accountable for mistreating clerks: so, they proceed committing misconduct. Disturbingly, judges whose clerks have been reassigned are free to rent new ones, who unwittingly enter a hostile work atmosphere. And as a result of lack of judicial transparency, clerkship candidates don’t have any approach of figuring out from the courts which judges have been reprimanded for misconduct. Judiciary office conduct insurance policies, clumsily lumped beneath the EDR umbrella, are nothing greater than a Band-Support over a bullet gap — speedy, short-term options that fail to deal with bigger, festering systemic issues. And, reassignment lacks the significant authorized and monetary redress mistreated clerks deserve, for which Title VII gives.
Whereas the judiciary acknowledged shortcomings and proposed options in its March 2025 Working Group Report, together with a searchable database of EDR and Judicial Conduct & Incapacity (JC&D) Act disciplinary orders, with out congressional oversight or benchmarks for progress, these proposals aren’t well worth the paper they’re printed on. The judiciary advantages from this damaged system and isn’t correctly incentivized to repair it. Frankly, judges are recognized for contemplating long-term implications and broad-based options: in the event that they wished to enhance insurance policies to facilitate sturdy reporting and actual accountability, they’d.
Importantly, whereas chief judges can open investigations beneath the JC&D Act in the event that they be taught of misconduct, absent a proper criticism, they hardly ever do. That’s why judicial self-discipline have to be taken out of the judiciary’s chain of command and dealt with by impartial third events — civil rights investigators and skilled office conduct specialists — with significant congressional oversight. The judiciary won’t ever self-discipline its personal except it’s pressured to, as comparable issues within the army and police unions illustrated.
Troublingly, judiciary insurance policies depend on weak subordinates — legislation clerks, depending on judges for references and profession development, missing authorized safety in opposition to retaliation — to blow the whistle on their highly effective, life-tenured bosses. However clerks concern reputational hurt and profession destruction: the judiciary’s refusal to meaningfully self-discipline abusive judges provides them no confidence they’ll be taken significantly in the event that they stick their necks out. Court docket directors perceive and have taken benefit of clerks’ vulnerability, repeatedly dismissing calls to make criticism processes truthful, unbiased, and clear.
The EDR Plan have to be overhauled. We all know clerks aren’t empowered to file complaints: it’s time to repair the system. And inside dispute decision can’t be clerks’ solely possibility. There isn’t a substitute for extending Title VII and its sturdy due course of ensures to judiciary staff who help the each day functioning of our courts — paradoxically, making certain due course of for litigants whereas missing rights themselves.
When clerks are reassigned as a consequence of mistreatment, a sturdy investigation and publicly accessible reprimand would assist potential clerks keep away from abusive judges. Such judges must also endure obligatory remedial managerial and office coaching, and their clerk supervision ought to be overseen by a DWR for a number of years. In truth, this punishment was imposed on Second Circuit Decide Sarah Merriam a number of years in the past.
Moreover, judges whose clerks are reassigned shouldn’t be permitted to rent new clerks for at the least six months. Some circumstances may must be reassigned, doubtlessly burdening colleagues. However solely when the specter of punishment is actual, is it an precise deterrent. This may shift the steadiness of energy again from an unjust system the place judges recurrently get away with misconduct and can’t be disciplined by dropping their jobs. If judges truly feared self-discipline, and it have been clear that judicial misconduct affected all judges within the court docket if one have been sidelined, judges may take these issues extra significantly — holding themselves to larger office requirements, and maybe even blowing the whistle on colleagues’ misconduct.
Troublingly, the judiciary hesitates to acknowledge judges retaliate in opposition to clerks. But the judiciary’s personal survey signifies solely 42% of staff would report mistreatment, citing fears of retaliation. The courts ought to create some extent of contact for clerks to listing as a reference for future jobs slightly than the choose they clerked for, thereby lessening clerks’ issues about retaliation and profession harm.
The courts’ failure to behave on proof that mistreatment just isn’t uncommon — but hardly ever reported — speaks volumes. The judiciary doesn’t need clerks to formally report misconduct, as a result of then they could have to modestly self-discipline some judges, which they’re loath to do. Contemplate this: the 106 clerks who described mistreatment might nonetheless file complaints — there’s no statute of limitations beneath the JC&D Act. What’s the judiciary doing to encourage these clerks to report? Nothing. And the courts might most likely not solely determine the clerks, however who they clerked for, and launch some investigations into essentially the most problematic judges. Will they do this? After all not. The courts will solely be incentivized to behave by means of aggressive congressional oversight, sustained media scrutiny, and public outcry. Whereas judges’ moral lapses have generated elevated scrutiny, lawmakers pay little consideration to judges’ conduct behind the bench.
Congress should reintroduce the Judiciary Accountability Act (JAA) and lengthen Title VII protections — together with safety in opposition to retaliation — to greater than 30,000 exempt staff. To be clear: clerks don’t file complaints as a result of they don’t seem to be protected in opposition to retaliation. The dearth of complaints is primarily as a result of lack of Title VII protections. Closing this disturbing authorized loophole will enhance reporting — a win for accountability advocates, and a loss for abusive judges who at present harass clerks with impunity.
The JAA faces an uphill battle on this political local weather, however Congress needn’t wait: they may connect its essential anti-discrimination protections to a compulsory annual spending invoice, just like the Nationwide Protection Authorization Act. Congress is contemplating the judiciary’s 2026 price range request proper now — a uncommon annual alternative to tie funding to significant benchmarks for reform. Disturbingly, there was no critical dialogue about this — regardless of the judiciary’s request for extra office conduct funds. Zeroing out the judiciary’s price range till they make significant adjustments may get their consideration.
Congressional inaction is disappointing however not stunning, contemplating that Administrative Workplace of the U.S. Courts (AO) Director Robert Conrad wasn’t requested a single query about office conduct when he testified earlier than Congress this spring, despite the fact that it was the second merchandise in his written testimony. Nor did Congress ship the AO an oversight letter demanding motion after its disturbing office survey outcomes. Congressional Democrats will throw weak judiciary staff beneath the bus to maintain the courts blissful as a result of they’ve dominated in opposition to Trump administration lawlessness.
Clerks aren’t hapless victims: if extra used current processes, we might spotlight flaws and truly change them. For instance, had all 106 mistreated legislation clerks in 2023 filed EDR complaints searching for reassignment, and have been the judiciary pressured to reassign and allot funding for 106 further hires, they’d uncover simply how damaged the method is and repair it.
These points are significantly pressing. Proper now, hundreds of legislation college students are interviewing for and accepting clerkships. 1000’s of federal clerks are concluding their clerkships: those that have been mistreated will take that trauma to their subsequent jobs — and, after they develop into managers, they might mistreat subordinates, as a result of damage folks, damage folks. And hundreds of latest legislation graduates are about to start clerkships in essentially the most harmful white-collar office in America — the federal judiciary.
The authorized career traditionally turned a blind eye to judicial misconduct, wrongly trusting the judiciary to self-police. Now not. We should maintain the judiciary accountable for repeatedly failing to self-discipline misconduct. We can’t permit the courts to quietly reassign clerks yr after yr whereas shielding judges from accountability.
No choose ought to be above the legislation. But judges rule on problems with nationwide significance and interpret the legislation whereas themselves not topic to those self same legal guidelines. We can’t belief judges to be truthful and impartial arbiters of disputes so long as the legislation permits their unethical office habits.
Aliza Shatzman is the President and Founding father of The Authorized Accountability Mission, a nonprofit aimed toward making certain that legislation clerks have optimistic clerkship experiences, whereas extending help and assets to those that don’t. She recurrently writes and speaks about judicial accountability and clerkships. Attain out to her through e mail at [email protected] and observe her on Twitter @AlizaShatzman.
