Aliza Shatzman, the founder of the Legal Accountability Project (LAP) and the author of The Clerkships Whisper Network, has kicked off a national conversation about the clerkship experience and lack of accountability for judges who mistreat their law clerks. It is important to continue to refine the information available to law students and alumni considering applying for clerkships. The many people who have great clerkship experiences should describe those experiences “in the rosiest of terms.” But referencing Charles Dickens’ A Tale of Two Cities, Shatzman identifies the paradox: “the best of circumstances, the worst of circumstances.” A clerkship lives at the extremes – if it is very good, it is wonderful and a blessing, and if it goes very badly, it can be the worst work experience one has ever endured. The work environment often revolves around one person – the judge.
Mistreatment does not affect all clerks equally, but may vary with the personal identity of the clerk. Some difficult work environments make it difficult for the employee to disentangle the mistake from the employer’s negative or abusive reaction. The employee starts to believe that perhaps it is their fault or they deserved the mistreatment. An employer who is a serial abuser often suggests the employee deserves the mistreatment, avoiding accountability for their actions or their part in the conflict. The first reaction for many employees is to internalize the criticism and blame themselves, deterring them from reporting the experience.
The risk of internalizing mistreatment increases for people who have endured childhood abuse or past trauma, whether physical, sexual, verbal, emotional or otherwise. Shatzman and LAP’s Clerkships Database seek to democratize access to information about clerkship experiences. In the effort to diversify the ranks of law clerks, it is important to be mindful of the imbalance in the past experiences that many law school graduates of color carry into their careers. Black and Latinx children are more likely to have adverse childhood experiences, including trauma and abuse, than their white counterparts. Children who experience abuse often adapt by believing that they are responsible for and deserve the abuse.
The road to healing from this trauma should include what psychologists call “corrective experiences.” A potential clerk deserves access to information about a judge and the work experience in that judge’s chambers that helps them decide if this environment will be healthy for them personally given their background and what they need from an early legal employment experience.
Access to information about prior clerks’ experiences helps students and recent alumni make the best decisions about whether to commit to working for a particular judge. But that transparency must extend to information about how the judge’s behavior affects students from particular backgrounds. If the judge has a habit of making racist comments or an employee of color found the experience difficult because of their race, that information should be shared with potential clerks. Likewise if the judge is insensitive or disrespectful toward women or demeans the experiences of LGBTQ+ individuals. It is hard to admit that a judge would have such biases that shape how they relate to employees from certain groups. But judges are a product of society, susceptible to the same biases, even if the behavior does not rise to the level of discrimination in a legal sense.
If a potential clerk accepts a clerkship based on faith and the best available information, that clerk may not find support if something goes wrong. Shatzman explains that the “legal community has created a culture of silence and fear around the judiciary: one of deifying judges and disbelieving law clerks.” The power and prestige afforded to judges leads many attorneys, law professors, and others in the legal profession to believe judges can do no wrong. They fear calling out the behavior and admitting that the Emperor is wearing no clothes. A clerk who reaches out to a mentor for advice in the midst of the crisis may find an unreceptive ear, including a focus on identifying all the ways the clerk may have contributed to the judge’s behavior rather than validation of their concerns and advice on advocating for themselves or ending the clerkship early.
Chambers is a whole employment ecosystem. As Shatzman explains, a “judicial chambers’ structure is both isolated and hierarchical: Two to four clerks, perhaps a judicial assistant, and a powerful judge work long hours behind locked doors in stressful circumstances.” The experience resembles a small law firm, with the judge as the senior partner, the courtroom deputy as a legal assistant, and the two to four clerks as junior lawyers. But those junior lawyers have fewer options for addressing mistreatment, as the federal judiciary is exempt from Title VII.
A judge’s management style, rather than the clerk’s behavior, may be the greatest contributing factor to a clerk’s negative experience. Some judges may delegate to long-term staff—judicial assistant, courtroom deputy (for trial-court judges), and career clerks—a role in managing clerks’ experiences. That leaves a clerk little or no recourse when the judge fails to intervene to prevent misconduct. The judge has every incentive to protect the key staff member who has served the judge for 30 years but who makes clerks’ lives miserable or to believe a clerk the judge has informally placed in a leadership position over another clerk who raises a complaint. To do otherwise would call into question the judge’s judgment and require them to do the uncomfortable work of managing change. Potential clerks need information about the judge’s preference for such a system of indirect management and how well it functions.
The legal profession relies on hierarchy to manage behavior, whether within a 1,000-attorney law firm or a five-person judicial chambers. The risk of losing a job practicing law and having it sully one’s reputation in the legal community can lead many young lawyers to suffer in silence or tolerate mistreatment. But as a non-attorney once told me when I dealt with a difficult legal employment situation, “You never regret standing up for yourself. Even if you lose that job, one thing you will not regret is that you stood up for yourself.” Providing transparent information about clerks’ experiences with judges can help recent law school graduates avoid having to learn this lesson the hard way, in a work environment with little protection and great stakes.
