Some
judges
apparently
believe
they
should
be
exempt
from
criticism
and
public
scrutiny
—
in
addition
to
being
exempt
from
Title
VII
of
the
Civil
Rights
Act
of
1964
and
other
anti-discrimination
laws,
and
from
oversight
and
accountability.
That
was
one
of
my
takeaways
from
Thursday’s
Federalist
Society
panel
on
“the
continued
independence
of
the
federal
judiciary.”
For
anyone
who
wonders
why
public
confidence
in
the
courts
has
declined,
watch
this
hour-long
event
featuring
Fifth
Circuit
Judge
Edith
Jones,
Georgetown
Law
Professor
Stephen
Vladeck,
Washington
University
in
St.
Louis
School
of
Law
Professor
Daniel
Epps,
Paul
Weiss
Partner
Kannon
Shanmugam,
and
moderator
Fifth
Circuit
Judge
James
Ho.
At
a
time
when
the
federal
judiciary
should
be
a
bulwark
against
political
partisanship
and
government
abuses,
this
panel
may
make
you
almost
as
skeptical
of
the
courts
as
I
am.
This
grievance-fest
was,
importantly,
marketed
as
“promoting
respectful
dialogue”
about
the
courts.
Yet
Judge
Ho
kicked
things
off
by
framing
the
current
landscape
as
a
“war
on
the
judiciary.”
Ho
and
Jones
both
bemoaned
what
they
perceive
to
be
the
less
respectful
(subtext:
less
obsequious)
tone
with
which
the
courts
are
discussed,
which
they
associated
with
declining
public
confidence
in
the
institution.
Apparently,
even
the
slightest
hint
of
criticism
is
equivalent
to
“attacking”
the
courts.
It’s
too
bad
some
law
professors
and
advocates
want
to
hold
life-tenured
public
servants
to
basic
standards
of
human
decency!
As
someone
who
regularly
engages
with
federal
law
clerks
—
and
as
much
as
practicable
with
the
courts
where
they
work
—
my
faith
in
the
courts
as
an
institution
is
low.
Why?
Because
the
way
judges
treat
their
clerks
behind
closed
doors,
when
no
one
is
watching,
speaks
to
who
they
really
are.
How
can
we
have
confidence
that
judges
are
neutral
arbiters
of
disputes
and
fair,
impartial
interpreters
of
the
law,
when
they
mistreat
their
own
employees
and
believe
the
anti-discrimination
laws
they
interpret
should
not
apply
to
them?
The
federal
judiciary
deserves
significant
scrutiny
—
far
more
than
meager
attempts
by
some
in
the
Congress
and
the
media.
Yet
the
judiciary
refuses
to
recognize
the
scope
of
abusive
conduct
in
their
ranks,
refuses
to
engage
with
lawmakers
or
law
clerk
advocates,
refuses
to
release
any
data,
and
refuses
to
enact
meaningful
reforms
in
the
wake
of
high-profile
scandals
and
sustained
criticism.
I
do
not
think
the
judiciary
is
beyond
repair.
But
they
must
admit
there
are
problems,
and
implement
solutions.
I
have
a
few
ideas.
The
benefit
of
live
streaming
this
panel
is
that
we
could
all
tune
in.
The
downside
is
that
we
can
literally
roll
the
tape.
And
“roll
the
tape”
moments,
there
were.
Judge
Jones’s
exchanges
with
Professor
Vladeck
generated
the
most
attention.
Vladeck,
a
federal
courts
expert,
studies
“judge
shopping”
—
the
practice
whereby
litigants
seek
a
friendly
home
for
their
lawsuits
by
filing
suit
in
single-judge
districts.
He
also
writes,
speaks,
and
tweets
regularly
about
the
courts.
In
a
particularly
meme-worthy
exchange,
Jones
held
up
a
manila
folder
containing
Vladeck’s
“mean
tweets”
(prompting
some
to
joke
about
the
time
Jones’s
law
clerks
probably
spent
printing
them
out
for
her),
claiming
she
has
“studied”
Vladeck.
Jones
read
several
tweets
(“Hold
on
—
I
only
have
three
more!”)
as
alleged
“evidence”
of
Vladeck’s
“attacks”
on
the
judiciary.
According
to
Jones,
“attacks
on
the
judiciary
are
attacks
on
the
rule
of
law,”
and
she
misleadingly
suggested
that
critiques
of
the
judiciary
led
to,
for
example,
threats
on
Texas
federal
judge
Matthew
Kacsmaryk’s
life.
(Kacsmaryk
is
the
judge
at
the
center
of
the
politically
charged
Mifepristone
case.)
Vladeck
interjected
several
times
to
clarify:
“That’s
not
what
I
meant,”
and
“I
think
we
should
provide
the
context,”
to
which
Jones
snapped
“I
don’t
think
that’s
right.”
Frustrated
by
Vladeck’s
attempts
to
clarify
Jones’s
misleading
statements,
Jones
slammed
the
table
and
scowled.
Her
irreverent
behavior
was
not
particularly
becoming
of
a
life-tenured
federal
circuit
judge
—
and
former
chief
judge
—
to
say
the
least.
Given
Jones’s
anger,
you’d
think
these
tweets
would
be
quite
scathing.
Yet
the
mundane
tweets
Jones
read
appeared
to
simply
describe
the
process
of
judge-shopping.
Vladeck
responded,
“Where
was
the
attack
in
that?”
What
seemed
to
set
Jones
off
was
not
the
content
of
the
criticism,
but
the
mere
fact
that
Vladeck
dared
to
disagree
with
her.
When
I
watched
Jones’s
conduct,
my
first
thought
was,
If
this
is
how
Jones
treats
a
well-respected
law
professor,
in
public,
I
wonder
how
she
treats
her
20-something-year-old
law
clerks,
behind
closed
doors,
in
stressful
circumstances,
when
no
one
is
watching
and
no
one
will
hold
her
accountable?
We
should
not
conflate
criticism
or
critique
of
institutions
—
particularly
the
most
powerful
and
least
accountable
—
with
“attacks.”
As
Vladeck
said,
“that’s
a
dangerous
road
to
go
down.”
This
is
particularly
true
if
we
want
to
promote
respectful,
balanced
dialogue
about
the
courts.
Importantly,
Vladeck’s
tweets
were
not
“attacks,”
since
they
were
neither
aggressive,
nor
intended
to
spark
violence.
As
someone
who
regularly
criticizes
the
federal
judiciary’s
unethical
behavior,
his
statements
seemed
mild.
It
was
disheartening,
though
not
surprising,
that
only
Epps
defended
Vladeck
in
the
moment.
But
the
overwhelming
deference
granted
to
judges
during
this
event
underscores
a
much
larger
issue
in
the
legal
profession
and
media:
an
industry-wide
unwillingness
to
hold
the
federal
judiciary
accountable
through
dogged
reporting
and
honest
dialogue
about
misconduct
in
the
courts.
Law
schools
and
legal
employers
purvey
overwhelmingly
positive
—
and
biased
and
misleading
—
messaging
about
judicial
clerkships,
and
rhetoric,
intended
to
inculcate
students,
that
one
should
never
say
anything
negative
about
a
judge,
even
if
you
were
mistreated.
The
media,
too,
has
failed
to
hold
judges
accountable.
Unless
journalists
or
Congress
hold
the
judiciary’s
feet
to
the
fire
and
ask
tough
questions
about
their
repeated
failures
to
protect
law
clerks
from
harassment
and
abusive
conduct,
and
their
refusal
to
implement
reforms
in
the
wake
of
numerous
scandals,
the
judiciary
will
refuse
to
make
any
changes.
The
public
deserves
to
know:
-
Why
does
the
federal
judiciary
oppose
extending
federal
anti-discrimination
protections
to
employees?
-
Is
there
evidence
that
judiciary
“alternatives”
to
Title
VII
have
been
effective
-
How
many
law
clerks
per
year
are
mistreated?
How
many
are
fired
or
quit
-
How
often
do
law
clerks
use
internal
employee
dispute
resolution
mechanisms,
and
what
are
the
outcomes?
-
What
metrics
does
the
judiciary
use
to
assess
the
effectiveness
of
its
reporting
and
disciplinary
mechanisms?
-
How
does
the
judiciary
protect
law
clerks
who
report
misconduct
against
retaliation
by
judges?
Judicial
misconduct
is
only
covered
by
the
media
when
there
is
a
sexy
scandal.
Even
then,
the
courts
are
covered
with
kid
gloves.
Reporters
are
loathe
to
criticize
the
judiciary
and
nearly
always
prioritize
“both-sides-ing”
over
honest
reporting.
Actually,
there
are
not
two
sides
to
sexual
harassment.
Too
many
of
my
timely
pitches
to
media
outlets
about
judicial
accountability
are
declined
as
not
“newsy”
enough,
even
though
they
offer
an
under-represented
perspective
on
the
federal
courts
—
the
law
clerk
perspective
—
and
a
much-needed
critique
of
the
judiciary’s
shortcomings.
Yet
if
skittish
editors
tightly
control
what
gets
published
and
are
unwilling
hold
the
judiciary
accountable
but,
rather,
cower
in
the
face
of
judges,
what
good
is
the
Fourth
Estate?
This
is
why
I
view
part
of
my
responsibility,
through
platforms
like
Above
the
Law
and
my
own
social
media,
to
ensure
the
law
clerk
perspective
is
properly
represented.
Jones
used
her
platform
at
the
FedSoc
convention
to
“defend
her
colleagues”
from
what
she
characterized
as
unfair
criticism.
So,
it’s
equally
important
for
me
to
defend
the
hundreds
—
probably
thousands,
over
the
past
few
decades
—
of
law
clerks
who
have
been
mistreated
by
her
judiciary
colleagues
nationwide.
I’ll
continue
to
use
my
public
platforms
to
provide
a
necessary
counterweight
to
the
judiciary’s
misleading
rhetoric,
since
formal
checks
and
balances
like
Congress
and
the
press
have
failed,
while
also
offering
concrete
third-party
solutions.
What
is
the
takeaway
from
this
panel?
Jones
apparently
believes
that
judges
and
the
judiciary
should
not
be
criticized.
She
bemoaned
the
failure
of
legal
academia
and
bar
associations
to
defend
the
judiciary
—
as
if
the
judiciary
needs
defending
(it
does
not).
And
she
complained
about
the
“unregulated
podium
in
the
press
and
law
blogs
to
cast
…
aspersions”
(referring
to
journalism
and
social
media),
which
she
seems
to
perceive
as
unfair
criticism.
Considering
the
enormous,
unchecked
power
judges
wield,
it’s
ridiculous
to
claim
that
judges
should
not
be
criticized.
With
great
power
comes
both
the
responsibility
to
wield
it
ethically,
and
the
expectation
that
you’ll
be
held
accountable,
including
by
those
who
disagree
with
you.
To
suggest
that
speech
we
don’t
like
should
be
restricted,
based
on
some
judges’
hurt
feelings
—
or
that
the
unaccountable
judiciary
needs
more
defenders
—
is
antithetical
to
an
impartial
judiciary.
I
critique
the
courts
to
make
them
better.
It
is,
of
course,
our
First
Amendment
right
to
speak,
and
to
speak
critically
—
a
right
protected
under
the
Constitution,
which
Jones
swore
to
uphold.
Criticism
holds
our
institutions
accountable,
especially
when
few
are
willing
to
speak
truth
to
power,
fearing
reputational
harm
or
retaliation.
When
I
launched
The
Legal
Accountability
Project
(LAP),
a
clerkship
transparency
and
judicial
accountability
nonprofit,
several
years
ago,
I
suspected
most
judges
had
never
been
confronted
with
a
negative
experience
like
mine
—
certainly
not
on
a
sustained
basis.
The
federal
judiciary
should
be
regularly
confronted
with
experiences
like
mine
—
which
are
not
rare
—
and
urged
to
make
changes,
until
they
finally
ensure
future
generations
of
clerks
do
not
endure
experiences
like
mine,
and
those
who
do,
have
legal
recourse.
As
I
continued
to
engage
with
federal
judges,
clerks,
and
those
working
within
the
federal
courts
through
LAP,
it
quickly
became
clear
just
how
cloistered
judges
are.
They
don’t
engage
on
social
media.
They
don’t
make
regular
public
statements
or
comment
in
the
press
because
they
might
be
perceived
by
litigants
as
biased,
if
they
expounded
on
an
issue
that
later
came
before
the
court.
And
they
perceive
themselves
to
be
“untouchable”
—
a
word
some
used
privately
with
me
—
exemplified
by
Jones’s
behavior
during
this
panel.
But
Jones
is
not
alone:
I
have
found
that,
the
longer
judges
serve
on
the
bench,
the
more
removed
from
reality
some
become.
Some
have
gone
decades
without
anyone
challenging
or
criticizing
them.
And
while
they
supervise
law
clerks
—
new
attorneys
at
the
start
of
their
careers
—
they
are
decades
removed
from
the
daily
experience
of
being
a
judicial
clerk.
Too
many
seem
unsympathetic
to
the
enormous
power
disparity
between
judge
and
clerk
and
the
heightened
risk
of
abuses
of
power
in
a
hierarchical
judicial
chambers.
And
some
restrictions
on
speech
are
what
judges
sign
up
for.
In
exchange,
they
are
granted
enormous
power
to
interpret
laws
having
national
significance,
substantial
prestige
of
office,
life
tenure,
decent
salaries
—
and,
they’re
exempt
from
anti-discrimination
laws.
Judges
do
not
have
bosses,
nor
do
they
face
oversight
over
their
dealings
with
subordinates.
Judges
who
don’t
like
this
are
free
to
leave
the
bench
—
and
resume
their
right
to
expound
publicly.
Judges
are
not
gods.
We
should
no
longer
place
them
on
pedestals.
Judges
are
public
figures
and
public
servants,
and
they
are
accountable
to
those
they
serve.
No
other
public
figures
are
immune
from
scrutiny
or
criticism.
In
fact,
Ho
himself
once
said,
“If
you’re
afraid
of
being
booed,
you
shouldn’t
be
a
judge.”
If
Jones
does
not
want
to
be
booed,
or
criticized,
she
can
leave.
The
public
—
who
judges
serve
—
has
not
only
the
right,
but
the
obligation,
to
criticize.
We
should
hold
judges
—
the
most
powerful
members
of
the
legal
profession
and,
perhaps,
the
entire
federal
government,
who
make
decisions
affecting
litigants’
lives,
livelihoods,
and
liberty
—
to
the
highest
ethical
standards,
not
the
lowest.
Critiques
of
judiciary
ethical
lapses,
lack
of
transparency,
and
opposition
to
reform
are
not
personal
attacks,
though
some
judges
who’d
prefer
not
to
be
criticized
at
all
take
them
personally.
The
public
square
may
be
the
only
real
mode
of
accountability
for
the
federal
judiciary
right
now,
considering
not
only
that
they
are
exempt
from
Title
VII,
but
also
that
the
internal
judicial
complaint
processes
are
under-utilized
shams.
My
critiques
are
not
partisan.
I
suspect
Jones
would
find
sympathetic
ears
for
her
arguments
that
the
judiciary
should
not
be
criticized,
and
should
not
change
their
rules
to
account
for
the
changing
times,
from
other
entrenched
judges
of
her
generation
across
the
ideological
spectrum.
I’ve
identified
a
generational
divide
through
my
work:
younger
judges,
both
conservative
and
liberal,
are
more
sympathetic
to
the
need
for
workplace
protections
and
greater
transparency
and
accountability.
Yet
we
cannot
wait
several
decades
for
those
wedded
to
the
status
quo
to
retire
or
die,
to
make
change.
(Toward
the
end
of
the
panel,
in
response
to
Epps’s
arguments
about
term
limits,
Jones
quipped,
“I’m
sorry
we’re
living
longer,
but
that’s
the
way
it
is”
—
perhaps
a
good
advertisement
for
term
limits.)
Jones,
too,
criticized
the
“exploitation
of
the
judicial
complaint
process,”
complaining
that
“anyone”
can
file
a
complaint
about
a
judge
and
suggesting
the
process
has
been
weaponized.
Apparently,
she
herself
is
no
stranger
to
the
complaint
process.
What
she
misses
is
that
it’s
difficult
—
by
design
—
if
you’re
a
law
clerk,
considering
the
lack
of
basic
protection
against
retaliation.
In
fact,
she
failed
to
mention
that
only
a
handful
of
complaints
per
year
are
filed
by
law
clerks,
due
in
part
to
statements
like
hers,
which
appear
intended
to
chill
complaints.
Law
clerks
should
not
be
silenced
by
these
statements.
While
Jones
believes
complaints
are
“distracting”
to
judges,
they
should
be,
for
those
accused
of
misconduct,
to
properly
incentivize
good
behavior
and
disincentivize
misconduct.
Judges
are
far
more
concerned
with
their
roles
as
jurists
than
they
are
with
their
positions
as
managers,
running
small
workplaces,
with
all
the
inherent
vulnerabilities
this
entails.
A
reshuffling
of
judicial
priorities
is
necessary.
And
more
mistreated
clerks
should
file
complaints
and
hold
judges
accountable
for
misconduct.
In
the
Third
Branch,
where
judges
are
immune
from
suit
for
sexual
harassment;
and
where
law
clerks
rarely
file
complaints,
complaints
are
rarely
investigated,
and
judges
are
rarely
disciplined
or
held
accountable,
Jones’s
opposition
to
this
modicum
of
accountability
under
the
Judicial
Conduct
and
Disability
Act
is
particularly
unpersuasive.
Judges
have
gotten
away
with
egregious
misconduct.
We
should
criticize
the
federal
judiciary
more,
not
less.
It
is
an
institution
crying
out
for
reform.
Clearly,
our
critiques
have
been
effective
—
and
not
just
because
they
have
gotten
under
some
judges’
very
thin
skins.
Calls
for
reform
have
not
gone
unnoticed,
even
if
the
judiciary
has
not
yet
taken
the
necessary
steps
to
ensure
safe
and
respectful
workplaces.
More
lawyers
should
speak
out
and
hold
the
judiciary’s
feet
to
the
fire.
The
public
square
provides
our
best
hope
in
the
years
ahead
to
hold
the
judiciary
accountable
and
finally
enact
meaningful
reform.
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.
Kathryn
