The way judges treat their clerks—especially when no one is watching—speaks to who they really are. But when they mistreat their clerks, life-tenured federal judges rarely face accountability.
Some mornings, I close my office door to cry, thinking about the career as an assistant U.S. attorney (AUSA) in Washington, D.C., that never was. While it’s too late for my career as a prosecutor, it’s not too late for the next generation of eager young public servants—aspiring prosecutors and public defenders who decide to clerk for judges in order to launch their legal careers.
Eventually, I wipe my tears. I try to carve out some time to write, speak with an advocacy organization, or talk to a congressional office about judicial accountability. These activities energize me. One door has closed, but another door has opened.
The D.C. Superior Court judge for whom I clerked began harassing me just weeks into my clerkship. He escalated the situation in October 2019, calling me into his chambers to discuss my “personality issues.” He told me, “You’re bossy! And I know bossy because my wife is bossy!”
The judge did not approve of the fact that I did not conform to gender stereotypes about women in the workplace—because I was assertive, confident and offered my opinions. For that, I endured a constant stream of criticism. I was “aggressive,” “nasty,” a “disappointment.” I made him “uncomfortable” and he “just felt more comfortable” with my male co-clerk. I wished I could be reassigned to a different judge, but at the time my workplace did not have an employee dispute resolution (EDR) plan in place that might have provided for a reassignment. Finally, the judge ended my clerkship four months early because I “made him uncomfortable” and “lacked respect for” him but he “didn’t want to go into it.”
I contacted human resources for the D.C. courts, but I was told there was nothing they could do because “HR doesn’t regulate judges” and that “judges and law clerks have a unique relationship.” They asked me, “Didn’t I know that I was an ‘at-will’ employee?” and rebuffed my requests for a reassignment.
Just over a year later, I had started working at my dream job in the D.C. U.S. Attorney’s Office (USAO), when my world came crashing down. The USAO alerted me that the judge had made negative statements about me during my background investigation. They told me I “would not be able to obtain a security clearance” and that my job offer was being revoked. I was devastated. I tried to advocate for myself, but the decision was final.
I filed a formal judicial complaint with the D.C. Commission on Judicial Disabilities and Tenure (CJDT), the regulatory body for D.C. judges. I participated in the investigation of my former supervisor, who I later found out had already agreed to take administrative leave, pending an investigation into other allegations, when he filed the negative reference. However, the CJDT was not empowered to help me get my USAO job back. They could not provide me with monetary relief for the damage done to my career. My options were limited.
My Senate-confirmed former supervisor has since been “involuntarily retired” from the D.C. bench, for reasons other than the way he treated me when I was a clerk. However, that is of limited comfort to me, considering the enormous damage he has done to my life. As I recently explained to the House Judiciary Subcommittee in my statement for the record, law clerks have neither legal recourse nor effective remedies when they are harassed by the most powerful members of the legal profession. Any existing safeguards to prevent the type of mistreatment that I experienced during my clerkship and in the years following it are deeply inadequate.
When they mistreat their clerks, life-tenured federal judges rarely face accountability. They can only be removed by congressional impeachment—which is rare. Mistreated federal clerks currently have two options: They can file an internal EDR complaint and/or a formal judicial complaint under the Judicial Conduct and Disability Act. However, these options are inadequate.
Law clerks have neither legal recourse nor effective remedies when they are harassed by the most powerful members of the legal profession. They rarely file complaints against judges, because they fear both retaliation and reputational harm.
EDR is the internal courthouse dispute resolution process. Through EDR, a clerk can be reassigned to a different judge. This often requires both hiring an attorney and engaging in a months-long investigation and hearing process. In contrast, the formal judicial complaint process offers no relief to victimized clerks—its function is to investigate misbehaving judges, and most complaints are dismissed . Complaints rarely result in formal discipline. Furthermore, both of these processes are currently overseen by other judges. Law clerks are understandably skeptical that judges’ colleagues will impartially investigate and adjudicate complaints.
Law clerks rarely file complaints against judges, because they fear both retaliation by the judge and reputational harm. After I filed a CJDT complaint against the then-judge, I continued to job search in the jurisdiction where he worked. I accepted the risk that he might disparage me again, considering how angry he was about the investigation.
In July 2021, Congress proposed a bill that would help federal law clerks in situations like mine. The Judiciary Accountability Act (JAA) of 2021 (H.R. 4827 in the House, S. 2553 in the Senate) would empower judiciary employees to sue federal judges under Title VII of the Civil Rights Act of 1964. As it stands, all federal judicial branch employees are currently excluded.
The JAA would also expand the definition of “judicial misconduct” to include discrimination and retaliation; revise the formal judicial complaint process; and create both a confidential reporting system and a standardized EDR Plan. Additionally, the JAA would require the judiciary to collect and publish data on judicial complaints, workplace culture, and clerkship hiring diversity.
The Judiciary Accountability Act would empower judiciary employees to sue federal judges under Title VII of the Civil Rights Act of 1964. As it stands, all federal judicial branch employees are currently excluded.
The JAA would extend basic workplace protections to uniquely vulnerable judiciary employees. However, less than a month after the JAA was introduced, the Judicial Conference of the United States, the governing body for federal judges, sent letters to the House and Senate Judiciary Committees opposing the bill. The Judicial Conference claims that there are “robust safeguards” in place to protect law clerks; that the JAA “interferes with internal governance;” and that it imposes “intrusive requirements” on the judicial branch. The Judicial Conference has also argued that subjecting judges to Title VII would threaten judicial independence.
The right to sue under Title VII is crucial. The JAA’s opponents are unwilling to engage with the argument that internal complaint processes are insufficient in antidiscrimination cases. Through litigation, victimized clerks could recover monetary damages, which are not available through EDR. Judges should be forced to pay for their misconduct, especially when they harm clerks’ careers and future earning potential. Additionally, a neutral arbiter would preside over the Title VII case, enabling the clerk to receive a fair hearing on her claims. Judges who preside over antidiscrimination cases should themselves be subject to antidiscrimination laws.
The judiciary has repeatedly touted its EDR plan. However, EDR is quite judge-friendly; it is challenging for law clerks to navigate; and it offers extremely limited remedies. Furthermore, even though the judiciary has a “Model EDR Plan,” not every courthouse follows it.
Judges hold positions of public trust. They make decisions every day that affect fundamental aspects of people’s lives. Judges should be held to the highest ethical standards, not the lowest. It threatens the public’s confidence in the judiciary as a fair arbiter of disputes, when judges known for misbehaving are never disciplined. Judges should act as if they are above reproach in their interactions with clerks.
Considering both the lack of workplace protections and the judiciary’s failure to discipline crooked judges, the judicial branch is among the most unaccountable workplaces within the federal government. Congressional staffers are protected by Title VII pursuant to the Congressional Accountability Act of 1995, as are most executive branch employees. There is no reason why the judiciary should be exempt from anti-discrimination laws.
The JAA’s requirements are not overly intrusive. They would simply require the judiciary to collect data on judicial complaints and workplace culture, so that we can finally understand the scope of judicial misconduct. The judiciary balks and buries its head in the sand whenever it is asked to collect data, refusing to acknowledge that the problem cannot be fixed through internal self-policing.
The way judges treat their clerks—especially when no one is watching—speaks to who they really are. Judges who treat everyone with respect should support the JAA, because it raises the bar for workplace civility. Misbehaving judges, who have long evaded scrutiny and avoided accountability, will be held accountable by both the new rules and the judiciary’s commitment to enforcing the rules. Passing the JAA would send a message that judicial misconduct will not be tolerated, and that the judiciary is committed to ensuring safe workplaces. I wish the JAA protected me when I was a law clerk.
As I reflect on my efforts to seek justice for myself and accountability for the misbehaving former judge, as well as the ways the system failed me when I tried to report the mistreatment, I know that passing the JAA is more urgent than ever.
Editor’s note: This article was written prior to the March 17, 2022, House Judiciary Subcommittee hearing. Hours before the hearing, on March 16, the Federal Judiciary Workplace Conduct Working Group submitted a report to the Judicial Conference of the United States, proposing some limited reforms, primarily to the judiciary’s Employee Dispute Resolution (EDR) Plan. However, these proposed changes would not make the type of meaningful reforms for which the author advocates.