Second Circuit Judge Sarah Merriam Disciplined Again, This Time for Creating A ‘Tense And Challenging’ Work Environment

The federal judiciary is perpetrating a fraud upon the public. With four judges in the news just this month for committing misconduct — Eleanor Ross, Ryan Nelson, Thomas Luddington, and now Sarah Merriam — we should be honest about systemic flaws in the judicial complaint process that perpetuate misconduct, shield abusive judges from accountability, dissuade law clerks from reporting, and chill complaints.  

Regular Above the Law readers know Sarah Merriam — the Second Circuit judge first disciplined in late 2023 for creating an “overly harsh” work environment. Almost immediately, LAP learned Merriam continued to mistreat clerks, in flagrant violation of Chief Judge Debra Ann Livingston’s order. To violate that order, put in place pursuant to a federal law — the Judicial Conduct and Disability Act (JCDA) — would be to violate the law. Disturbingly, those tasked with enforcing the discipline — the chief judge, who met with Merriam to discuss her workplace behavior; the Director of Workplace Relations (DWR), the law clerk point of contact tasked with checking in with Merriam’s clerks; and the Second Circuit Executive — were aware or, in Livingston’s case, should have been aware, that Merriam continued to mistreat clerks. Given this misconduct, the chief judge was empowered to identify another complaint against Merriam. Yet she did not.

So, in December 2025, The Legal Accountability Project (LAP) took a significant step toward real accountability, filing our first judicial misconduct complaint as an organization against Merriam, alleging her chambers was “characterized by fear, oppressive control, intimidation, humiliation, and bullying.” LAP did not make this decision lightly. But anyone — lawyers, litigants, law clerks, members of the public, and organizations like LAP — is empowered to file a JCDA complaint alleging a judge has committed misconduct prejudicial to the fair and impartial administration of justice. Other good-government organizations file complaints against judges too. LAP’s was in the public interest; the interests of more than 30,000 judicial branch employees who remain dangerously exempt from all anti-discrimination, civil rights, and labor laws; and the interest of those in the judiciary who believe in ethics, accountability, and fair and respectful workplaces. 

In 2023, the year Merriam was first disciplined, just three clerks filed JCDA complaints against judges. Yet the federal judiciary’s own climate survey revealed as many as 106 judges — or 1 in 17 — harassed their clerks. That discrepancy is because clerks aren’t legally protected against retaliation for reporting. The complaint process relies on young, vulnerable clerks, dependent on judges for references and career advancement, to blow the whistle. The judiciary doesn’t make it easy, gaslighting clerks and dismissing their concerns. 

The federal judiciary insists they can “self-police,” so no reform, outside oversight by Congress, or legal protections for employees against discrimination, harassment, and retaliation under Title VII is necessary. Yet clearly toothless “discipline” hadn’t deterred Merriam, and may even have emboldened her after mostly getting away with it the first time. 

LAP’s complaint provided the circuit with enough information to alert them of the problem and urge them to investigate. It was based on firsthand conversations with clerks, and reviewed by the first clerk complainant. We did not identify clerks by name to shield their identities from Merriam, who received a copy of the complaint and was legally empowered to retaliate against them. Frankly, LAP was preferable to a clerk filing, because clerks could be confidential witnesses instead of the named complainant. LAP hoped clerks would speak candidly with the chief judge. I expected, as the complainant, to be interviewed, to shed further light on the situation. 

Clerks regularly contact me seeking advice and assistance: I tell them I’m not their lawyer. I don’t want to be clerks’ therapist or carry their secrets. I tell them their experiences should, at a minimum, be submitted as post-clerkship surveys for LAP’s Clerkships Database to warn applicants. To be clear: I don’t think anyone should need therapy after their clerkship, and I’ve dedicated my life and career to fixing broken systems that break clerks. But LAP is a watchdog; we don’t provide legal services. We look out for the best interests of thousands of federal clerks (state court clerks, too) who benefit from our work, whether they interact with us or not; over 30,000 vulnerable federal judiciary employees; hundreds of thousands of individuals impacted by our work or who interact with the courts; and society generally. When the circumstances demand it, we may file complaints to alert the court of misconduct that endangers clerks, staff, litigants and the public; and to underscore for the judiciary, Congress, and society generally, the urgent need for reform. We balance clerks’ interests against the greater public interest. 

I compared the initial 2022 Merriam complaint to Livingston’s 2023 order concluding it: it’s striking how Livingston whitewashed, cherrypicked, and frankly, misrepresented that clerk’s allegations. Strangely, the clerk’s substantiated abusive conduct allegations (Merriam acknowledged creating an “overly harsh” work environment) aren’t discussed in Livingston’s order: the only ones she discusses are three nonworkplace-conduct allegations she dismissed. The clerk was transferred out of Merriam’s chambers, under the Employee Dispute Resolution (EDR) Plan, before they filed the JCDA complaint. Importantly, that’s not unusual: the JCDA’s intent is discipline for judges, whereas EDR offers (limited) relief for clerks. And when Livingston interviewed that clerk for her investigation, Merriam was in the next room, within earshot: this did not encourage candid reporting. Livingston doesn’t appear particularly interested in a fair and impartial investigation. So, we shouldn’t be surprised Livingston’s “limited inquiry” of LAP’s complaint was too limited to properly investigate. 

Livingston’s 2026 order regarding LAP’s complaint, issued close in time to the Judicial Conference’s order regarding Judge Eleanor Ross, is another example of the broken judicial complaint process. To be clear: I am not comparing the severity of Merriam’s misconduct to that of Ross. I am, however, comparing the lack of severity of discipline in both, as well as the judiciary’s repeated failure to self-police despite insisting it can. LAP’s workplace misconduct allegations were substantiated: Merriam was again reprimanded, this time for creating a “tense and challenging” work environment, after the 2023 disciplinary order. Further toothless remedies were imposed, similarly laughable to those imposed upon Ross: Merriam agreed to meet with judge advisors on workplace conduct; participate in management training; and attend annual workplace training. Merriam was undeterred the first time and will be undeterred the second. Punishment is a deterrent: without enforceable discipline, judges have no disincentive to commit misconduct. This situation, as well as Eleanor Ross’s, underscores that internal workplace complaints adjudicated by misbehaving judges’ friends and colleagues should not be the sole method of accountability for life-tenured federal judges who interpret our laws.

Because Livingston’s order mentions the EDR Plan, it’s important to distinguish EDR from the JCDA. The JCDA offers discipline and accountability for judicial misconduct. It resulted in this public disciplinary order. Pursuant to the JCDA, the federal judiciary must release annual complaint statistics. In contrast, no similar transparency or data disclosure obligations apply to EDR. EDR offers remedies for clerks, not discipline. The two are different. That’s why the judiciary tries to funnel clerks away from JCDA complaints and to EDR — so they do not have to release public disciplinary orders, nor data on employees’ use of the EDR Plan. They don’t have to discipline their colleagues. Peddling EDR, which clerks regularly tell me is a “sham,” is yet another way the judiciary tries to shield abusive judges from accountability. It’s the height of dishonesty. 

And, while Livingston suggests the Merriam matter was resolved before LAP filed, that’s also irrelevant to a JCDA inquiry. Clerks file JCDA complaints after they’ve concluded their clerkships — as did the first Merriam complainant, and the Lydia Kay Griggsby complainant — because they’re safer from retaliation to file after leaving abusive work environments. It’s disturbing that Livingston either doesn’t understand her circuit’s complaint processes, or publicly misrepresents them, since she’s tasked with enforcing them.   

LAP’s complaint would have benefitted from a policy change to the JCDA: all complaints should be inter-circuit transferred so judges outside the misbehaving judge’s circuit, rather than friends and colleagues, investigate them. Even the judiciary’s Workplace Conduct Working Group Co-Chair conceded it’s difficult to impartially adjudicate colleagues’ misconduct. Since Livingston adjudicated the first Merriam complaint, and LAP’s complaint alleges Livingston and her colleagues failed to properly discipline Merriam the first time, Livingston should not have investigated this second complaint. Transferring the complaint would remove even the appearance of a conflict of interest or lack of impartiality. 

Some wonder if LAP was right to file. When the judiciary misleadingly claims their complaint process works well, yet a judge who’s been publicly disciplined flagrantly violates a disciplinary order and continues committing misconduct, risking harm to staff, litigants, and the public, LAP should alert the court. These circumstances justified disclosure.  

Frankly, some lawyers are simply uncomfortable with the pace of change LAP creates — or, with any change at all. The status quo — keeping your head down and staying silent, self-preservation at all costs — benefits them. Perhaps they believe they’re protecting their own reputations — though most lawyers I know view clerk whistleblowing as laudable, not shameful. Or, they want to protect the allegedly pristine reputations of judges they’re associated with as they climb the legal ladder. Maybe they don’t like that we call out liberal lions as much as conservative crusaders. Those are excuses, and hollow ones at that. 

I try to give everyone the benefit of the doubt: one’s views are shaped by their personal experience. So, here’s mine: many readers know I was harassed, unjustly fired, and retaliated against by the judge I clerked for. But some clerks who worked for the judge before me were also mistreated and chose not to report. My life and career were destroyed in large part because prior clerks stayed silent. Had they reported, the judge might have been disciplined, or even removed, as he ultimately was. My life would be totally different. I might be a federal prosecutor — or, given the political climate, a former federal prosecutor. And when the D.C. U.S. Attorney’s Office revoked my job offer and denied me a security clearance after the judge provided a negative and false reference, my first thought was, I want him to be punished. My experience, and my fundamental belief in accountability, by which I mean punishment — ground my conviction that mistreated clerks have an ethical duty to report. 

Some compare my role to that of a “mandatory reporter” in workplace sexual harassment cases. And, when LAP first launched our Clerkships Database, some asked whether I felt obligated to report misconduct I learned about, to the courts. But the only way LAP’s Database works — empowering clerks to share candidly — is if information is never shared with the judiciary or general public, only with clerkship applicants. I maintain that commitment, even while worrying not every applicant consults LAP’s Database and heeds its warnings. Frankly, LAP should do even more to hold judges accountable for abusing their power and violating public trust.   

The Merriam matter may be concluded, for now. But we cannot allow the courts and Congress to sit on their hands and just wait for the next Merriam to make news. 

The JCDA can and should be amended. But the complaint process is also governed by the Rules for Judicial Conduct and Disability Proceedings, which are amended at bi-annual Judicial Conference meetings. Shockingly little is delineated in writing about judicial discipline: that’s by design. It’s ironic, considering judges are sticklers for rules in their own courtrooms, but to govern their conduct, rules do not apply. There should be clearly delineated standards for discipline so the punishment fits the crime, and judges know they’ll be disciplined if they fail to comply. 

The judiciary should also temporarily suspend judges, when circumstances warrant it, as with 98-year-old Federal Circuit Judge Pauline Newman, who’s been suspended for two years for refusing to meaningfully participate in a conduct and fitness investigation. When a judge is investigated for mistreating staff, staff should be immediately reassigned. It defies logic to subject vulnerable clerks to continued mistreatment during investigations. And, since judges consume taxpayer dollars while committing misconduct, and the judiciary expends substantial resources investigating them, judges should pay the investigation expenses if they’re found to have committed misconduct.

These are congressional problems requiring congressional solutions — legislative, oversight, and appropriations. Congress should finally pass the Judiciary Accountability Act (JAA) and extend federal anti-discrimination protections to judicial employees, so judges are no longer immune from suit, and employees can report without fear of retaliation. While congressional Democrats have abdicated their oversight responsibility over the courts, they can send oversight letters right now but have mostly refused. And the Appropriations Committee should tie the judiciary’s budget to meaningful benchmarks for reform or cut their budget until they improve. Congress should not write the courts a blank check to flout congressional authority and shield abusive judges from accountability. 

LAP pushes the envelope. We’re the most aggressive organization in an area of the legal industry where most in legal academia, private practice, and the public sector sat on their hands and disclaimed responsibility. We’ve also created incredible change in just a few years, not just with our Clerkships Database, which has already served over 4,000 students and recent graduates in just two years; legislative and policy advocacy; and thought leadership; but cultural change, too. We’ve created the conditions for more clerks to file complaints and forced the judiciary, Congress, and the press to take complaints seriously. In fact, I later learned LAP’s work inspired the first Merriam complainant to file in 2022. I’ll take those wins every day. Whether or not you agree with LAP’s tactics, as long as neither the courts nor Congress will hold judges accountable, LAP will. 

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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.