Just
9%
of
the
78
workplace
dispute
resolution
matters
initiated
by
federal
court
employees
over
the
two-year
period
between
2021
and
2023
were
initiated
by
term
judicial
law
clerks,
according
to
the
Administrative
Office
of
the
U.S.
Courts’
(AO)
2023
Workplace
Report,
released
a
few
weeks
ago.
To
put
this
in
perspective,
that’s
around
seven
complaints
over
a
two-year
period,
or
fewer
than
five
misconduct
complaints
per
year.
This
negligible
number
of
workplace
misconduct
complaints
suggests
limited
use
of
the
federal
judiciary’s
employee
dispute
resolution
(EDR)
process
and
little
progress
toward
fostering
a
culture
of
reporting,
despite
sustained
criticism
of
the
federal
courts
and
several
recent
high-profile
sexual
harassment
scandals.
Yet
the
AO
wants
you
to
believe
that
all
is
well,
since
admitting
the
scope
and
severity
of
the
problem
might
necessitate
actually
implementing
meaningful
solutions.
According
to
AO
Director
Judge
Robert
Conrad,
“steady
progress”
has
been
made,
“multiple
robust
reporting
channels”
exist
for
mistreated
clerks,
and
the
judiciary
“does
not
have
a
judicial
problem”
because
there
have
been
few
complaints.
And,
according
to
Conrad,
law
clerks
are
apparently
at
no
higher
risk
than
employees
in
any
other
workplace
of
being
subjected
to
discrimination
or
harassment.
In
fact,
the
AO
does
not
know
—
or
does
not
care
to
know
—
that
abusive
conduct
is
pervasive
and
unaddressed
in
the
federal
courts.
What
anyone
with
expertise
in
sexual
harassment,
employment
law,
or
workplace
misconduct
knows
(and
sadly,
many
in
the
AO,
including
those
tasked
with
handling
law
clerk
issues,
do
not
have
this
expertise),
is
that
a
low
number
of
misconduct
complaints
does
not
signify
a
safe
workplace.
Rather,
it
suggests
ineffective
reporting
mechanisms
and
that
employees
do
not
feel
safe
reporting
misconduct
internally.
The
AO
seems
not
to
understand
that
there
is
no
greater
power
disparity
in
the
legal
profession
than
between
a
fresh-out-of-law-school
clerk
and
a
life-tenured
federal
judge,
necessitating
at
least
the
same
workplace
anti-discrimination
protections
for
judicial
law
clerks,
that
the
rest
of
us
enjoy.
Considering
the
enormous
power
disparity
between
subordinate
and
principal,
lack
of
anti-discrimination
protections
for
employees,
and
dearth
of
effective
reporting
channels
or
law
clerk
points
of
contact
for
assistance,
judicial
chambers
are
workplaces
particularly
conducive
to
abusive
conduct.
It
is
quite
simple:
law
clerks
do
not
and
will
not
report
misconduct
within
the
federal
judiciary
as
long
as
they
are
not
legally
protected
against
retaliation
under
Title
VII
of
the
Civil
Rights
Act
of
1964.
Yet
the
judiciary
still
opposes
extending
Title
VII
protections
to
its
more
than
30,000
employees.
It
is
disheartening
but
not
surprising,
that
just
days
after
an
entrenched
federal
judge
asserted,
categorically,
that
judges
should
not
be
criticized,
the
AO
would
characterize
advocates
as
alarmists
for
pointing
out
systemic
failures.
This
report,
and
the
regressive
statements
made
by
the
AO
about
it,
should
give
law
clerks,
prospective
clerks,
attorneys,
and
the
public
absolutely
zero
confidence
that
the
federal
judiciary
can
effectively
and
impartially
handle
sexual
harassment
disputes
internally.
Disturbingly,
this
workplace
that
spends
so
much
time
touting
its
law
clerk
program
and
recruiting
judicial
clerks,
apparently
cares
little
about
clerks’
well-being.
As
someone
who
regularly
counsels
law
clerks
on
their
options
to
address
misconduct,
most
mistreated
clerks
I
speak
with
have
not
and
would
not
report
misconduct
within
existing
judiciary
channels,
because
they
do
not
believe
it
will
be
taken
seriously
and
investigated
vigorously.
And
with
limited
remedies
available
to
clerks,
no
legal
protection
against
retaliation,
and,
sadly,
often
no
legal
counsel
to
assist
them,
it
is
difficult
to
convince
clerks
to
stick
their
necks
out
and
blow
the
whistle
on
misconduct.
Law
clerks
face
enormous
headwinds
in
reporting
misconduct:
the
federal
judiciary
does
not
make
the
process
any
easier.
The
AO’s
2023
report
says
little,
obfuscates
often,
and
leaves
experts
and
advocates
with
more
questions
than
answers.
The
report
focuses
on
the
EDR
Plan,
the
judiciary’s
toothless
and
insufficient
“alternative”
to
extending
Title
VII
and
other
anti-discrimination
protections
to
employees.
Of
course,
there
is
no
substitute
for
extending
legal
protections
to
employees,
an
argument
federal
judges
should
understand,
considering
that
they
preside
over
Title
VII
cases
themselves.
What
Is
EDR,
And
What’s
Wrong
With
It?
EDR
is
the
internal
workplace
dispute
resolution
process
whereby
a
mistreated
clerk
can
file
a
complaint
against
the
judge
they
work
for,
alleging
discrimination,
harassment,
abusive
conduct
(bullying),
or
retaliation.
Yet
it’s
a
byzantine
process
that
differs
by
circuit,
and
far
too
little
is
delineated
in
writing.
And,
it
is
rife
with
conflicts
of
interest.
Too
much
is
at
the
discretion
of
individual
presiding
judicial
officers
(PJOs)
—
judges
in
the
courthouse
where
the
complainant
law
clerk
and
misbehaving
judge
work
(basically,
the
judge’s
colleagues
and
friends).
And
fellow
judges
are
unable
or
unwilling
to
sit
in
impartial
judgment
of
their
colleagues’
misconduct.
This
confusing
pseudo-legal
process
necessitates
hiring
an
attorney.
Yet
no
monetary
remedies
are
available
through
EDR,
and
most
attorneys
in
the
jurisdiction
are
“conflicted
out”
(since
they
do
not
want
to
go
up
against
judges
in
the
jurisdiction
where
they
represent
clients).
Sadly,
too
often,
law
clerks
are
forced
to
represent
themselves,
going
up
against
the
overwhelming
force
of
the
federal
judiciary
—
thereby
exacerbating
the
enormous
power
disparity
between
fresh-out-of-law-school
clerk
and
life-tenured
federal
judge.
Picture
this:
a
20-something
recent
law
graduate
in
their
first
legal
job,
going
up
against
a
life-tenured
judge,
is
forced
to
become
investigator
and
employment
law
counselor
and
figure
out
how
to
enforce
their
rights.
It
is
not
a
fair
fight,
and
that’s
by
design.
The
process
is
ripe
for
abuse,
due
to
the
enormous
power
disparity
between
judge
and
clerk.
And
clerks
are
regularly
gas-lit
or
misled
by
PJOs
and
the
AO.
But
most
law
clerks
never
even
get
to
this
stage,
because
many
are
stymied
at
Step
1
of
the
reporting
process:
confiding
in
their
circuit
director
of
workplace
relations
(DWR),
theoretically
a
law
clerk
point
of
contact
who,
in
reality,
serves
as
HR
for
the
judiciary.
Importantly,
DWRs
do
not
have
the
proper
training
or
expertise
to
advise
clerks
on
legal
issues
—
they
are
not
required
to
have
law
degrees;
many
did
not
clerk
themselves;
and
some
do
not
even
have
employment
law
or
human
resources
experience.
Yet
too
often,
they
dissuade
clerks
from
filing
complaints,
advising
them
that
their
allegations
do
not
rise
to
the
level
of
abusive
conduct
or
that
there
aren’t
enough
co-complainants
for
them
to
be
successful,
even
though
they
do
not
have
the
expertise
to
advise
on
these
matters.
Sadly,
this
“informal
advice”
is
not
a
category
of
EDR
data
that
the
judiciary
even
collects
and
reports.
We
have
no
idea
how
often
clerks
contact
DWRs,
nor
how
many
(or
which)
judges
clerks
complain
about.
DWRs
possess
a
treasure
trove
of
potentially
actionable
judicial
misconduct
information.
While
they
are
empowered
in
the
limited
circumstance
of
an
imminent
threat
to
share
information
with
their
superiors,
mostly,
they
are
either
silent
bystanders
or
outright
enablers
of
judicial
misconduct.
Some
DWRs
know
where
the
bodies
are
buried,
yet
clerks’
informal
reports
rarely
lead
to
action
or
discipline.
EDR
lacks
meaningful
remedies.
The
best
a
clerk
can
hope
for
is
reassignment
to
a
different
judge
for
the
remainder
of
the
clerkship,
which
is
not
guaranteed,
since
it
depends
on
another
judge’s
willingness
to
take
on
an
extra
clerk
and
the
clerk’s
ability
to
potentially
uproot
their
life
again
and
move
for
another
clerkship.
And,
there
is
no
accountability
(discipline)
for
judges
who
commit
misconduct.
While
judges
occasionally
undergo
“remedial
training,”
it
is
voluntary
—
agreed
to
by
the
judge.
Considering
the
lack
of
redress,
and
the
substantial
risk
that
a
judge
will
retaliate
against
the
clerk
who
blew
the
whistle
(which
they
are
not
currently
legally
prohibited
from
doing),
it’s
a
hard
sell
to
convince
clerks
to
report
misconduct.
And
the
negligible
number
of
complaints
and
lack
of
transparent
data
—
combined
with
the
AO’s
claims
that
misconduct
is
not
a
problem
—
do
not
give
clerks
confidence
that
they
will
be
taken
seriously.
In
the
year
since
this
report
was
compiled,
the
federal
judiciary
has
been
plagued
by
numerous
scandals,
underscoring
that
reporting
and
disciplinary
processes
do
not
work.
First,
this
spring,
we
learned
that
Second
Circuit
Judge
Sarah
Merriam
was
“reprimanded”
under
the
EDR
Plan
in
December
2023
for
an
“overly
harsh
work
environment.”
The
“discipline”
she
received?
She
agreed
to
watch
some
training
videos.
No
one
—
except
perhaps
the
AO
—
honestly
believes
this
type
of
voluntary
“discipline”
will
solve
the
problem.
The
judiciary
vociferously
opposed
transparency
in
this
matter
by
redacting
the
judge’s
name
from
the
disciplinary
order,
prompting
anxious
incoming
Second
Circuit
clerks
to
reach
out
to
me
to
inquire
about
the
judge’s
identity
(which
I
did
not
know
at
the
time).
The
judiciary
does
not
understand
that
there
can
be
no
accountability
without
transparency.
Then,
in
July,
former
Alaska
federal
judge
Joshua
Kindred
resigned
in
scandal,
after
a
20-month
Ninth
Circuit
Judicial
Council
investigation
revealing
appalling
abuse
and
sexual
harassment
in
his
chambers.
Some
in
the
judiciary
have
misleadingly
pointed
to
Kindred
as
an
example
of
internal
processes
working
well.
Yet
during
the
lengthy
investigation,
the
judiciary
did
not
protect
Kindred’s
clerks,
even
though
he
was
being
investigated
for
sexual
harassment,
by
reassigning
them
to
a
different
judge,
even
though
this
option
exists
under
EDR.
And
the
fact
that
Kindred
was
able
to
get
away
with
misconduct
for
as
long
as
he
did,
points
to
insufficient
reporting
channels.
Weeks
later,
two
reports
were
released
—
by
the
Federal
Judicial
Center
and
National
Academy
of
Public
Administration
and
U.S.
Government
Accountability
Office
—
highlighting
significant
flaws
in
EDR:
a
lack
of
standardization,
metrics
for
success,
transparency,
data
collection
and
reporting,
and
proper
training
for
those
tasked
with
overseeing
and
implementing
the
plan.
The
judiciary
stonewalled
investigators
collecting
data
for
these
reports
and
generally
refused
to
cooperate,
claiming
the
investigations
were
“duplicative”
of
its
2023
workplace
climate
survey
of
the
federal
judiciary
—
a
survey
whose
results,
importantly,
they
have
refused
to
release
publicly
due
to
“confidentiality”
concerns.
Of
course,
data
can
be
anonymized.
And
this
information
has
significant
public
importance.
The
results
must
be
quite
damaging
—
if
it
exonerated
the
judiciary,
they’d
release
it.
Then,
in
late
September,
buoyed
by
public
sentiment,
Congress
reintroduced
the
bipartisan
Judiciary
Accountability
Act
(JAA),
which
would
finally
extend
federal
anti-discrimination
protections
to
30,000
exempt
judiciary
employees;
standardize
EDR
plans
across
all
circuits;
create
multiple
confidential
reporting
channels;
establish
an
office
of
employee
advocacy
to
provide
legal
advice
to
clerks;
and
impose
data
collection
and
reporting
requirements
—
requiring
the
judiciary
to
collect
and
report
results,
publicly
and
to
Congress,
of
an
annual
workplace
culture
assessment,
demographics
of
law
clerk
hiring,
and
outcomes
of
judicial
misconduct
complaints.
Because
quantifying
the
scope
of
these
problems,
is
the
first
step
toward
crafting
effective
solutions.
And,
of
course,
former
North
Carolina
public
defender
Caryn
Devins
Strickland
has
been
engaged
in
a
protracted
legal
battle
with
the
federal
judiciary
since
2020
for
mishandling
her
sexual
harassment
complaint,
challenging
the
EDR
Plan
as
both
facially
unfair
and
unfair
as
applied
to
her.
Despite
Strickland’s
ordeal,
the
federal
judiciary
has
categorically
refused
to
take
any
responsibility
and
has
fought
Strickland
at
every
turn.
Strickland
appealed
in
October.
The
window-dressing
changes
the
federal
judiciary
has
implemented
over
the
past
few
years,
detailed
in
the
report,
are
not
serious
solutions.
An
effective
internal
dispute
resolution
system
would
promote
transparency,
accountability,
and
impartiality.
Transparency:
The
federal
judiciary
should
release
the
full
results
of
its
2023
workplace
culture
assessment,
as
well
as
EDR
data
broken
down
by
federal
circuit,
and
the
identities
of
judges
adjudicated
to
have
committed
misconduct
under
the
EDR
Plan.
And,
the
judiciary
should
commit
to
annual
public
data
disclosures
of
this
nature.
Accountability:
Judges
have
life
tenure,
but
that
does
not
mean
they
cannot
be
disciplined
through
robust
misconduct
investigations
when
DWRs
or
chief
judges
learn
about
misconduct,
unredacted
disciplinary
orders,
mandatory
remedial
training,
public
reprimand,
and
suspension.
Take
away
judges’
cases
for
a
set
period.
Perhaps
even
take
away
their
law
clerks.
Right
now,
judges
must
“agree”
to
remedial
training,
and
there
are
no
metrics
or
oversight
to
ensure
that
bad
behavior
does
not
recur.
For
judges
found
to
have
committed
misconduct,
for
example,
a
DWR
could
check
in
with
their
clerks
monthly
for
a
five-year
period,
and
the
judge
could
participate
in
mandatory
monthly
check-ins
with
the
chief
judge.
Impartiality:
The
EDR
Plan
should
be
taken
out
of
the
federal
judiciary’s
chain
of
command
and
overseen
by
neutral
third-party
civil
rights
investigators,
not
judges.
Transparency
is
accountability:
these
steps
would
deter
judicial
misconduct
and
foster
good
behavior,
because
judges’
reputations
might
finally
suffer
if
they
continued
mistreating
employees.
EDR
is
a
Band-Aid
over
a
bullet
hole.
Sweeping
reform,
including
but
not
limited
to
total
overhaul
of
the
EDR
Plan
and
extending
federal
anti-discrimination
protections
to
clerks,
is
urgently
necessary.
There
is
no
substitute
for
extending
basic
workplace
protections
to
judiciary
employees.
It
is
the
height
of
injustice
that
law
clerks
—
the
public
servants
who
support
the
daily
functioning
of
our
courts
—
lack
basic
workplace
protections
and
that
judges
are
exempt
from
the
laws
they
interpret.
The
anti-discrimination
laws
that
apply
to
most
other
workers,
should
apply
to
judiciary
employees,
too.
Judiciary
leadership
is
insular,
composed
of
judges
and
their
staunchest
defenders.
They
rarely
encounter
dissent
or
alternative
perspectives.
Even
the
Workplace
Conduct
Working
Group
tasked
with
addressing
law
clerk
issues,
does
not
include
any
law
clerks
or
law
clerk
advocates.
Until
outside
perspectives
are
invited
to
the
table
to
advise
on
reforms,
the
judiciary
will
be
plagued
by
scandal
and
critique.
Sadly,
in
the
short
term,
congressional
oversight
—
and
meaningful
judiciary
internal
reform
—
are
likely
wishful
thinking,
considering
the
political
climate
in
Washington,
congressional
intransigence,
and
federal
judiciary
obstinance.
Fortunately,
aspiring
law
clerks
can
access
a
third-party
transparency
and
accountability
resource
for
candid,
unbiased
information
about
abusive
judges
to
avoid
(and
good
bosses
to
work
for),
and
former
clerks
can
warn
prospective
clerks
without
fear
of
retaliation
by
judges.
Resources
like
my
nonprofit’s
Centralized
Clerkships
Database
do
not
require
buy-in
from
the
federal
judiciary,
nor
Congress,
nor
law
schools
to
make
the
change
that’s
clearly
necessary.
Especially
considering
the
bleak
picture
offered
by
the
AO’s
2023
report
and
what
it
signals
—
limited
recognition
of
the
scope
of
judicial
misconduct
and
limited
interest
in
implementing
effective
solutions
—
third-party
alternatives
have
never
been
more
important.
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
Twitter
@AlizaShatzman.
Chris
