The Federal Judiciary: The Most Dangerous White-Collar Workplace In America

The federal judiciary — which employs more than 30,000 people, including several thousand judicial law clerks — is the most dangerous white-collar workplace in America. The toxic combination of pervasive harassment; lack of outside, impartial oversight; and dearth of impartial, effective mechanisms to report create an outrageous lack of accountability. The decentralized judiciary is composed of imperial, unaccountable, life-tenured judges, many of whom lord total power and demand unquestioning fealty from two to four recent law graduates, not just for their one- or two-year clerkships, but for their entire legal careers.  

The federal judiciary has a harassment problem. There are numerous solutions, if they cared to implement them. Consider this: The Legal Accountability Project (LAP) runs a Centralized Clerkships Database (AKA “Glassdoor for Judges”), containing more than 1,500 candid post-clerkship surveys submitted by law clerks nationwide. Our surveys, which anyone who clerked can submit, and anyone applying can access for a small fee, suggest that 75% to 80% of clerkship experiences are positive. That means 20% to 25% of judicial clerkship experiences are neutral to negative. Not exactly the overwhelmingly positive, lifelong mentor/mentee relationships that law school clerkship programming and social media ram down our throats.  

In my conversations with clerks, they describe “pervasive” abusive conduct (the judiciary’s term for “bullying”), gender- and race-based discrimination, sexual and gender-based harassment, unjust termination, and retaliation. Clerks voice concerns about a lack of oversight; guardrails to prevent mistreatment; neutral, impartial outside points of contact to confide in; safe, impartial channels to report misconduct; transparency around judicial discipline; or accountability for judges who mistreat clerks. Yet clerks understand the lack of legal or cultural protection against retaliation for reporting misconduct; lack of meaningful redress, like monetary damages or legally enforceable settlement agreements, available to them; and judiciary disinterest in assisting them. In fact, judiciary points of contact literally discourage clerks from filing misconduct complaints or pressure them to withdraw them once filed, threatening — explicitly or implicitly — termination or other retaliation. 

Clerks overwhelmingly tell me they have not and would not report misconduct to the federal judiciary, because they do not believe their complaints will be taken seriously or robustly investigated. The wholly internal complaint process suffers from misaligned incentives: the judiciary is highly motivated to chill complaints and to dissuade clerks from filing complaints — which judges and their defenders within the Administrative Office of the U.S. Courts (AO) find inconvenient and disruptive. Beyond this, were there to be a groundswell of clerk complaints, the judiciary might be forced to answer tough questions about their failure to protect clerks from harassment. Since mistreated clerks rarely report misconduct, the low number of misconduct complaints the judiciary reports annually is a gross undercount representing a fraction of the misconduct judges commit. Silence benefits the federal courts, but not the clerks who support the courts’ daily functioning. 

It’s a perilous time for clerks. Neither the federal judiciary nor Congress is interested in implementing meaningful solutions. There’s also a ticking clock, as students enter yet another clerkship application cycle without proper information. While LAP’s Clerkships Database has become ubiquitous among applicants, the hazards of federal clerkships are unknown to many, since law schools gaslight students about these prestigious yet unregulated positions. Structural flaws in judicial clerkships make them particularly conducive to harassment and other misconduct, but students would never know that from attending a law school career services-sponsored judicial clerkship program. 

Lest you think clerks are “just too sensitive,” here’s a broad overview of what I hear from clerks: judges berate clerks for perceived “mistakes” after not providing clear instructions, feedback or guidance. Judges complain about clerks while in earshot and pit clerks against each other. Judges fire clerks partway through the clerkship (after all, clerks are “’at will’ employees”) not for poor performance, but because they’re apparently just “not a good fit,” after clerks have uprooted their lives and families to move to a new state, sign a one- or two-year apartment lease, and perhaps even take a state-specific bar exam. 

Judges demand outrageous 80-hour work weeks, not because the court’s docket is overburdened but because of the judge’s unreasonably exacting expectations for work product. They regularly require clerks to handle “non-judicial tasks” that are well outside clerks’ job descriptions — treating clerks more like personal assistants than like legal apprentices — tasking clerks with dog walking, fetching dry cleaning, tutoring children, and even helping them teach law school courses during government time. All of these likely violate judiciary restrictions on (mis)use of court resources, but holding judges accountable would require clerks to file complaints. And, after subjecting clerks to abuse — which they try to endure, understanding the importance of a clerkship to their careers and the necessity of leaving with a good reference — judges retaliate anyway by giving negative references to employers or bar associations — even affirmatively calling prospective employers to bad-mouth clerks, causing job offers to be revoked and putting bar licenses in jeopardy.

Disturbingly, most misconduct goes unreported, because clerks fear speaking out against their imperious, unaccountable bosses. The judiciary doesn’t make it easy, by design. There are no impartial, secure reporting channels, and clerks are not legally protected against retaliation for doing so, since the federal judiciary is exempt from Title VII of the Civil Rights Act. 

You’d hope that at least the most extreme situations would spur the judiciary to action. For example, clerks quitting — which they rarely do; and even, in some instances, whole chambers quitting or being fired. Or, in at least one particularly disturbing situation, when both chambers law clerks requested to be reassigned to a different judge simultaneously. Yet when I raised concerns about situations like these with one director of workplace relations (DWR) — the law clerk point of contact who the judiciary claims is best able to handle clerk issues because they know their decentralized circuits best — the DWR told me they “didn’t know anything about that” because they “don’t work in that courthouse.” Often, the judiciary disclaims responsibility for these matters. So, who judges the judges?

In order to keep their reported misconduct numbers low, while forcing vulnerable clerks into their debt, the AO often hastily reassigns mistreated clerks who informally “report” mistreatment to work for different judges for the remainder of their clerkship term. On its face, this might seem like a mutually beneficial solution. But it’s actually a Band-Aid over a bullet hole, and a pretense for failing to actually solve systemic problems. The judiciary is able to conceal the symptoms of these larger structural challenges by chilling complaints, enabling them to avoid dealing with the problems, whose evidence they have suppressed. 

Reassignment may seem like a decent outcome for clerks. It’s certainly ideal for the judiciary, rather than investing time and resources to investigate a misconduct complaint. But this sham of a process lacks the meaningful redress mistreated clerks deserve. Clerks don’t get their dignity back. They don’t get six months of their lives when they cried themselves to sleep, back. They don’t get the monetary remedies they might otherwise be owed, were they able to pursue legal claims under federal anti-discrimination laws. And, for clerks who struggle to find post-clerkship employment — after enduring mistreatment to try to preserve their career prospects — because they’re unable to list the judge as a reference after they were mistreated, fired, or quit — the judiciary does nothing to help. Beyond this, by reassigning clerks, the judiciary puts off addressing the structural challenges — including lack of training, oversight, transparency, reporting channels, and discipline — that cause judges to mistreat clerks with impunity, year after year. 

And because these circumstances do not launch formal misconduct investigations, there’s no accountability (discipline) for judges who mistreat clerks and no transparency around this such that prospective clerks could avoid these judges. Additionally, without mandatory remedial or managerial training for abusive judges and poor managers, there’s no way to ensure they will not continue mistreating subordinates or deter judges from mistreating future clerks. Then, judges are free to hire new clerks, who may be unaware that previous clerks were just reassigned due to mistreatment — thrusting additional clerks unwittingly into hostile work environments. State court systems do the same thing — reassigning clerks quietly rather than disciplining judges. Nothing changes about the hostile work environment in chambers, and the vicious cycle of mistreatment repeats. This broken system must be fixed: otherwise, the judiciary will keep sending clerks blindly into unsafe work environments and setting judges up for failure.

In several more egregious cases recently, the judiciary encouraged abusive judges to retire or resign quietly — amid clouds of misconduct — to evade accountability and spare their reputations. That’s because once a judge retires or resigns, under the current rules, the federal judiciary loses jurisdiction over, and cannot discipline, judges once they step down. (Importantly, state bar associations do have jurisdiction and could theoretically discipline former judges.) The judiciary protects judges’ allegedly sterling reputations at all costs, so they can return to lucrative private practice (where they will probably mistreat more employees) and even appear before the courts they once presided over, hoping no one learns why they were pushed out. Frankly, nothing is more detrimental to declining public trust in the judiciary than repeatedly turning a blind eye to judicial misconduct, since the judiciary’s harassment problem has become a subject of regular public discussion, yet the judiciary repeatedly fails to respond properly to criticism.  

These problems persist largely because clerks fear retaliation or reputational harm for speaking out. Clerks depend on judges for references and career advancement. Years after the clerkship, a prospective employer may call your listed references, but they’ll almost certainly contact the judge. Clerks live in fear years and even decades later. Even after judges die, clerks fear angering the judge’s army of loyal and powerful clerks and worry about retribution from the legal profession for speaking ill of improperly lionized judges. Yet the judiciary benefits from clerks’ silence. 

The judicial accountability mechanisms are broken and require total overhaul. Both the Employee Dispute Resolution (EDR) Plan, and the Judicial Conduct and Disability (JC&D) Act rely on vulnerable clerks filing complaints against their powerful superiors. But with no legal protection against retaliation for reporting, no legal counsel to assist them, no clear benefits, and enormous headwinds against success, the processes are stacked against clerks. Discipline is overseen by fellow judges in the court or circuit where the misbehaving judge works, and judges are unable or unwilling to sit in impartial judgment of their colleagues. There is so little oversight and accountability over these processes that several clerks literally said to me, “What’s to prevent the court from throwing my complaint in the trash?”

The judiciary doesn’t literally toss complaints in the trash, but they might as well. DWRs, who hold themselves out as law clerk points of contact but actually serve as “HR for the judiciary,” and other judiciary representatives, actively dissuade clerks from filing complaints. They advise clerks that, for example, the mistreatment they experienced does not rise to the level of actionable abusive conduct, or that there aren’t enough co-clerk complainants for them to be successful. Outrageously, in instances where clerks worked up the courage to file either an EDR or a JC&D Act complaint, DWRs have told them one complaint was sufficient. It’s not. The two processes have different goals — one, redress for clerks and the other, accountability for abusive judges. But a clerk would not know that if their only contact is a DWR intentionally trying to mislead them. It’s not a DWR’s job to advise clerks whether or not to file complaints, especially when they lack proper training to do so. Clerks should view DWR advice with skepticism, since the judiciary is heavily incentivized to keep their complaint numbers low so they can continue to falsely claim they do not have a misconduct problem. 

DWRs and circuit executives also pressure clerks to withdraw complaints they filed, threatening them — explicitly or implicitly — with retaliation, including termination. After all, clerks are at-will employees with no guarantee of employment. So, when unrepresented clerks are told they should be glad they were reassigned, and their complaints will likely be dismissed, the subtext is: Withdraw your complaint or be fired. To be clear, these actions by AO employees are unethical — perhaps actionable by state bars, of questionable legality, and outside their scope of authority. But they’re doing exactly what the judiciary wants them to — dissuading clerks from filing, deflating and misrepresenting misconduct data, and protecting the judiciary against “inconvenient” complaints. 

The judiciary is suppressing misconduct data and gaslighting the public. Hardly anyone bothers to question why their complaint data are suspiciously low, given that more than 1,100 life-tenured, unaccountable federal judges supervise law clerks, yet just seven EDR complaints were filed by clerks during the two-year period between 2021 and 2023. The judiciary accomplishes this not just by scuttling complaints, but also because, when law clerks confide “informally” in a DWR about mistreatment, it’s not documented anywhere. 

The judiciary does not collect and report any data on “informal advice,” the most-utilized aspect of the EDR Plan — when a mistreated clerk confides in a judiciary point of contact (typically the DWR). We do not know how often clerks seek advice from DWRs, nor the outcomes of those conversations. To be clear: DWRs have information about judicial misconduct that would point to a much broader problem, but they are not require to disclose this data publicly — or even to the Office of Judicial Integrity. DWRs know which judges mistreat clerks, but even though it could help the judiciary discipline abusive judges and protect future clerks against mistreatment, they do not disclose it. 

I’ve dedicated my career to solving these challenges. They are not unsolvable. But structural problems require structural solutions, including:

1. The Judiciary Accountability Act (JAA), which would not only extend federal anti-discrimination protections to judiciary employees, but would also revise the judicial complaint process, so misconduct investigations can continue even after judges retire or resign;
2. Amending the JC&D Act, or its rules, so investigations can continue even after judges step down;
3. Neutral, third-party investigators should investigate misconduct complaints, giving clerks confidence their complaints will be taken seriously and robustly investigated; 
4. Hiring impartial law clerk points of contact who represent clerks’ interests, not the judiciary’s;
5. Impartial, secure reporting channels; 
6. Outside congressional oversight over the judiciary, including hearings and investigations, to hold the judiciary’s feet to the fire and insist on benchmarks for progress; and more robust data collection and reporting requirements as a condition of the judiciary’s annually apportioned budget.

Sadly, most of these are unlikely in the near future, due to congressional intransigence and a proudly unaccountable federal judiciary. That’s why the onus is on law clerks to file complaints and speak with the press. Some will say it’s not a survivor’s responsibility to speak out. But if you don’t report the mistreatment you experienced, you allow the judge to get away with mistreating you, and you perpetuate a status quo where abusive judges mistreat clerks with impunity. 

I regularly advise clerks that the best way to protect themselves against retaliation is to do what I did: file a complaint. This formally documents the mistreatment, in case the judge retaliates later. And it’s how you might negotiate an agreement with the judge to preclude them from giving negative references. But there’s a toxic culture of silence and fear surrounding the judiciary, perpetuated by our risk-averse, hierarchical legal profession. Most fellow lawyers advise mistreated clerks to keep their heads down, stay silent, and move on. Sadly, clerks don’t realize that those giving this advice — whether intentionally or unintentionally — perpetuate the status quo. I was given the same advice; I just didn’t listen. Because it’s terrible, cowardly advice. And I don’t regret my choices. The headwinds against reporting are undoubtedly daunting: but you miss 100% of the shots you don’t take and, if you don’t report, you will not get redress, and you will live in fear. 

In fact, it’s empowering to speak out. You signal to other clerks that they are not alone. Whenever I speak with mistreated clerks, I’m struck by the incredible power that abusive judges have conferred upon them. Because clerks now have the opportunity to share their experiences and hold abusive judges accountable, in a way few have historically been brave enough to. 

And, speaking to the press can help prevent a judge from effectively retaliating against you because once they’ve been publicly discredited, their word won’t be worth much to prospective employers. Clerks are better-positioned to convince prospective employers not to hold a judge’s word in high regard if there’s a record of the judge’s misconduct. Few would dare discredit the word of a brave clerk who has gone to such a self-sacrificing extent to protect others by speaking out. 

The future of the judiciary is in clerks’ hands — to help ensure the mistreatment they experienced does not happen to future clerks. It’s time to hold the judiciary’s feet to the fire and spark a #MeToo movement in the judiciary. There is no longer a stigma around these issues. As one judge told me a few years ago, speaking out is brave, powerful, and impactful. This can be the year that we force meaningful change through a groundswell of complaints and reporting, public outcry, and sustained pressure. This is not just a clerkship transparency movement: it’s a revolution.  

Silence is complicity. More than most other workplaces, the judiciary is betting on clerks’ silence. By holding the most powerful, least accountable branch of government to account for misconduct, clerks can help transform the most dangerous white-collar workplace in America, to one that actually reflects a commitment to fair and impartial justice — including justice for clerks. 

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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.