Reassigning Judicial Law Clerks Is A Band-Aid Over A Bullet Hole

At least 106 federal law clerks were mistreated by judges in 2023, according to the judiciary’s own workplace climate survey, meaning as many as 106 federal judges committed actionable misconduct. Yet just three judicial misconduct complaints were filed by law clerks in 2023. A disturbing discrepancy, until you realize how ineffective judiciary reporting mechanisms are — by design. 

Case in point: there’s an interesting item buried in the Judicial Conference of the United States (JCUS) recently released biannual meeting minutes: “the Subcommittee on Workplace Conduct approved a request on behalf of the Committee … to allow an additional term law clerk and career law clerk to be assigned to a chief district judge’s chambers through August 2026 in order to address a workplace conduct matter.” Occasionally, the judiciary reassigns clerks who allege serious mistreatment — addressing one discrete situation and separating judge from clerk while failing to solve broader systemic problems. Without establishing legal guardrails to prevent judges from mistreating clerks and getting away with it, these problems persist, committed by the same repeat offenders. What’s most interesting about this reassignment isn’t who this abusive district court judge who hires for two-year terms might be, but the systemic problems it illustrates. 

This isn’t the first such reassignment: several years ago, two district court clerks were simultaneously reassigned partway through their two-year clerkship to address a workplace issue. That judge was not disciplined at the time: she hired new clerks who, due to the judiciary’s lack of transparency and accountability, were unaware of the circumstances surrounding the previous clerks’ departure. With no remedial training, the judge presumably continued to mistreat clerks. However, she could be disciplined now, if the Fourth Circuit learns from past failures. 

Why this patchwork system of reassignments? It stems from a disturbing blind spot: the federal judiciary, and its more than 30,000 employees, are exempt from all federal anti-discrimination laws, including Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act. If you’re harassed, unjustly fired, or retaliated against by a judge, unlike in most other workplaces, you cannot sue and seek redress. Judges are literally above the anti-discrimination laws they interpret. Instead, the courts peddle a toothless “alternative” —Employee Dispute Resolution (EDR), lacking impartiality, clear guidelines, due process, and meaningful redress. That’s why it’s grossly underutilized — out of thousands of federal law clerks nationwide, between 2021 and 2023, just seven EDR complaints were filed by law clerks, even though more than 100 clerks described actionable misconduct in the courts’ own survey that year.  

Law clerks rarely report mistreatment because they don’t believe their concerns will be taken seriously and then be robustly, impartially investigated. They’re skeptical the process will be fair, since fellow judges oversee it: judges are unable to impartially judge colleagues’ misconduct. Importantly, clerks fear retaliation, which they lack legal protection against under Title VII. Some clerks confide in a court point of contact like a Director of Workplace Relations (DWR) or national Office of Judicial Integrity, which the courts misleadingly conflate with reporting. Sadly, disclosure often stops there, since court administrators dissuade clerks from filing complaints. 

While reassignment may assist one particular clerk, without disciplining or training the problematic judge, problems will recur. Abusive judges know they won’t be held accountable for mistreating clerks: so, they continue committing misconduct. Disturbingly, judges whose clerks were reassigned are free to hire new ones, who unwittingly enter a hostile work environment. And due to the lack of judicial transparency, clerkship applicants have no way of knowing from the courts which judges have been reprimanded for misconduct. Judiciary workplace conduct policies, clumsily lumped under the EDR umbrella, are nothing more than a Band-Aid over a bullet hole — immediate, short-term solutions that fail to address larger, festering systemic problems. And, reassignment lacks the meaningful legal and financial redress mistreated clerks deserve, for which Title VII provides. 

While the judiciary acknowledged shortcomings and proposed solutions in its March 2025 Working Group Report, including a searchable database of EDR and Judicial Conduct & Disability (JC&D) Act disciplinary orders, without congressional oversight or benchmarks for progress, these proposals aren’t worth the paper they’re printed on. The judiciary benefits from this broken system and isn’t properly incentivized to fix it. Frankly, judges are known for considering long-term implications and broad-based solutions: if they wanted to improve policies to facilitate robust reporting and real accountability, they would. 

Importantly, while chief judges can open investigations under the JC&D Act if they learn of misconduct, absent a formal complaint, they rarely do. That’s why judicial discipline must be taken out of the judiciary’s chain of command and handled by neutral third parties — civil rights investigators and trained workplace conduct experts — with meaningful congressional oversight. The judiciary will never discipline its own unless it’s forced to, as similar problems in the military and police unions illustrated.

Troublingly, judiciary policies rely on vulnerable subordinates — law clerks, dependent on judges for references and career advancement, lacking legal protection against retaliation — to blow the whistle on their powerful, life-tenured bosses. But clerks fear reputational harm and career destruction: the judiciary’s refusal to meaningfully discipline abusive judges gives them no confidence they’ll be taken seriously if they stick their necks out. Court administrators understand and have taken advantage of clerks’ vulnerability, repeatedly dismissing calls to make complaint processes fair, unbiased, and transparent. 

The EDR Plan must be overhauled. We know clerks are not empowered to file complaints: it’s time to fix the system. And internal dispute resolution cannot be clerks’ only option. There is no substitute for extending Title VII and its robust due process guarantees to judiciary employees who support the daily functioning of our courts — ironically, ensuring due process for litigants while lacking rights themselves. 

When clerks are reassigned due to mistreatment, a robust investigation and publicly accessible reprimand would help prospective clerks avoid abusive judges. Such judges should also undergo mandatory remedial managerial and workplace training, and their clerk supervision should be overseen by a DWR for several years. In fact, this punishment was imposed on Second Circuit Judge Sarah Merriam several years ago. 

Additionally, judges whose clerks are reassigned should not be permitted to hire new clerks for at least six months. Some cases might need to be reassigned, potentially burdening colleagues. But only when the threat of punishment is real, is it an actual deterrent. This would shift the balance of power back from an unjust system where judges regularly get away with misconduct and cannot be disciplined by losing their jobs. If judges actually feared discipline, and it were clear that judicial misconduct affected all judges in the court if one were sidelined, judges might take these problems more seriously — holding themselves to higher workplace standards, and perhaps even blowing the whistle on colleagues’ misconduct. 

Troublingly, the judiciary hesitates to acknowledge judges retaliate against clerks. Yet the judiciary’s own survey indicates only 42% of employees would report mistreatment, citing fears of retaliation. The courts should create a point of contact for clerks to list as a reference for future jobs rather than the judge they clerked for, thereby lessening clerks’ concerns about retaliation and career damage.  

The courts’ failure to act on evidence that mistreatment is not rare — yet rarely reported — speaks volumes. The judiciary does not want clerks to formally report misconduct, because then they might need to modestly discipline some judges, which they’re loath to do. Consider this: the 106 clerks who described mistreatment could still file complaints — there’s no statute of limitations under the JC&D Act. What is the judiciary doing to encourage those clerks to report? Nothing. And the courts could probably not only identify the clerks, but who they clerked for, and launch some investigations into the most problematic judges. Will they do that? Of course not. The courts will only be incentivized to act through aggressive congressional oversight, sustained media scrutiny, and public outcry. While judges’ ethical lapses have generated increased scrutiny, lawmakers pay little attention to judges’ conduct behind the bench. 

Congress must reintroduce the Judiciary Accountability Act (JAA) and extend Title VII protections — including protection against retaliation — to more than 30,000 exempt employees. To be clear: clerks do not file complaints because they are not protected against retaliation. The dearth of complaints is primarily due to the lack of Title VII protections. Closing this disturbing legal loophole will increase reporting — a win for accountability advocates, and a loss for abusive judges who currently harass clerks with impunity. 

The JAA faces an uphill battle in this political climate, but Congress need not wait: they could attach its crucial anti-discrimination protections to a mandatory annual spending bill, like the National Defense Authorization Act. Congress is considering the judiciary’s 2026 budget request right now — a rare annual opportunity to tie funding to meaningful benchmarks for reform. Disturbingly, there was no serious discussion about this — despite the judiciary’s request for more workplace conduct funds. Zeroing out the judiciary’s budget until they make meaningful changes might get their attention. 

Congressional inaction is disappointing but not surprising, considering that Administrative Office of the U.S. Courts (AO) Director Robert Conrad wasn’t asked a single question about workplace conduct when he testified before Congress this spring, even though it was the second item in his written testimony. Nor did Congress send the AO an oversight letter demanding action after its disturbing workplace survey results. Congressional Democrats will throw vulnerable judiciary employees under the bus to keep the courts happy because they’ve ruled against Trump administration lawlessness. 

Clerks are not hapless victims: if more used existing processes, we could highlight flaws and actually change them. For example, had all 106 mistreated law clerks in 2023 filed EDR complaints seeking reassignment, and were the judiciary forced to reassign and allot funding for 106 additional hires, they’d discover just how broken the process is and fix it. 

These issues are particularly urgent. Right now, thousands of law students are interviewing for and accepting clerkships. Thousands of federal clerks are concluding their clerkships: those who were mistreated will take that trauma to their next jobs — and, when they become managers, they may mistreat subordinates, because hurt people, hurt people. And thousands of recent law graduates are about to begin clerkships in the most dangerous white-collar workplace in America — the federal judiciary. 

The legal profession historically turned a blind eye to judicial misconduct, wrongly trusting the judiciary to self-police. No longer. We must hold the judiciary accountable for repeatedly failing to discipline misconduct. We cannot allow the courts to quietly reassign clerks year after year while shielding judges from accountability. 

No judge should be above the law. Yet judges rule on issues of national significance and interpret the law while themselves not subject to those same laws. We cannot trust judges to be fair and neutral arbiters of disputes as long as the law permits their unethical workplace behavior.     

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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.