Courts

Judicial Clerkships Are Not An Unadulterated Good

Clerkships are not all unicorns and fairy dust.

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sad minority lawyer of color lack of diversityI should tell the truth about judicial clerkships: they are not an unadulterated good. Yet too many in the legal profession continue to frame these positions as uniformly positive, covering up the darker side of clerking.

This week, thousands of law students and young lawyers will apply for federal clerkships via the Online System for Clerkship Application and Review (OSCAR), in accordance with the Federal Law Clerk Hiring Plan. Many more will apply for state court clerkships nationwide.

Many attorneys will take this opportunity to rave on social media about their clerkships, providing one-sided advice to applicants. Former clerks refer fondly to the judge they clerked for, even decades later, as “my judge.” (Does anyone else refer to their boss as “my partner,” “my U.S. attorney,” or “my federal defender”?) They describe their clerkship as the best job they ever had. They recount that “their judge” officiated their wedding and remains a mentor to this day.

They also share some “conventional wisdom” that I’ve spent the past 29 months dismantling. For example, some still advise students to accept the first clerkship they are offered because, apparently, you should never say “no” to a judge.

Beyond fueling the infallibility complex some judges enjoy from lording total hiring power over applicants, without adequate information about the work environment they are entering, it is risky for a prospective clerk’s career and mental health to “apply blind” and “hope for the best.” A judge who will not afford you time to consider the offer — before you commit several years down the road for a particularly consequential year or two of your life — is probably not someone you want to work for.

Many also advise applicants to “speak with former clerks” about their experiences. But who are students going to ask? Historical lists of law clerks’ contact information are not readily accessible to most applicants. And clerks who respond to outreach almost uniformly rave about their experiences (even whitewashing mistreatment), because they fear retaliation and reputational harm for speaking ill of judges.

This overwhelmingly positive and misleading clerkship messaging is purveyed by law schools (particularly career services departments and faculty), individual attorneys, and the legal profession generally.

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Law school career services offices — that have been unwilling or unable to collect and disseminate candid, transparent information about clerkships — idealize and romanticize clerking. Their clerkship advising, messaging, and programming focus on funneling as many students as possible into clerkships, too often with little regard for the quality of the work experience.

Some of the loudest voices touting their wonderful clerkships publicly are law professors and BigLaw partners, who arguably succeeded at the uppermost echelons of the profession. But their messaging — and revisionist thinking — are due to a combination of self-interest and fear.

Some rationalize bad behavior years later because they succeeded, due in part to their prestigious clerkships. Why bite the hand that fed them?

These clerkship-or-bust voices are not representative of clerkship experiences generally. And the clerkship false advertising is a disservice to the many mistreated clerks who suffer in silence, as well as to prospective clerks seeking candid information from their mentors.

Clerkship hiring is also the exclusive purview of individual judges — with no oversight from a human resources department equivalent or chief judge. Judges are often less than transparent about their hiring preferences and practices, as well as their chambers culture. Judicial clerkships have historically been shrouded in secrecy and mystery, yet messaged as the best career decision a new attorney can make.

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And legal employers — law firms, government offices, and academia — place an enormous premium on judicial clerkships. They’re considered a “gold star” or a necessary checkbox for lucrative jobs in private practice and prestigious public service positions. To say anything less than glowingly positive in an interview would be a red flag for an employer.

Mistreated clerks suffer in silence. They fear sharing their experiences with anyone — not just publicly, but even privately to prospective clerks who reach out for advice.

All of these stakeholders contribute to a toxic clerk-at-all-costs mindset that perpetuates bad behavior. Clerks are told that judges deserve absolute respect, total deference, and should not be questioned. No one speaks up, no one reports misconduct, and the cycle of abuse continues year after year.

I rarely encounter people who did not either experience mistreatment themselves or know someone who did. Yet negative experiences like mine — where clerks were fired (or quit) or are retaliated against — are rarely discussed, due to this culture of secrecy and fear.

These problems persist unabated. The federal judiciary has implemented few meaningful reforms and appears unwilling to acknowledge the scope of the problem, let alone address it. And judges are insulated from most accounts of negative clerkship experiences, causing some to believe this problem is no more than a few bad Kozinskis.

The substantial power and influence judges can — and do — exert over former clerks, keeps clerks silent. A lukewarm — let alone a negative — reference from a judge can derail a clerk’s bar application, reputation, or career. Clerks suffer in silence and fear decades later — even after the judge has died — due to concerns about tarnishing the judge’s sterling reputation and fear of backlash from the judge’s army of powerful former clerks.

To change this clerkship culture, we must first be honest about the challenges some clerks face — rather than sweep them under the rug. While clerking is often framed as a lifelong mentor/mentee relationship between judge and clerk, that dynamic may be the exception, not the rule.

There is nothing shameful about sharing that you did not enjoy your clerkship. The prevailing “wisdom” was once that clerks should stay silent, keep their heads down, and move on. It was “bad form” to “talk bad” about a federal judge. This is no longer the case. Law students and attorneys are hungering for candid content about the courts. Change is happening.

Change could be driven in part by current and soon-to-be-former clerks, who seem increasingly empowered and interested in speaking publicly, talking to reporters, and helping change the culture. They describe misconduct as “pervasive” and “prevalent” in their circuits.

But change could (and should) also come from established attorneys — tenured professors, law firm partners, government leaders — speaking out and sharing their own negative experiences as a vector for change. Those who have contributed to the toxic positive clerkship messaging and been less than fully forthcoming about their own clerkships should reflect on the ways their actions — or inaction — perpetuate the status quo.

Mistreated clerks are your friends, colleagues, and mentors. They have probably never spoken publicly about this. Perhaps they had never shared with anyone, until recently.

It’s time to send a message — to the judiciary, the legal profession, and Congress — that discrimination, harassment, bullying, and retaliation are pervasive and unaddressed problems in the federal judiciary, in order to convey the urgency of reform. And law schools can implement changes right now by subscribing to The Legal Accountability Project’s (LAP) Centralized Clerkships Database, a transparency, accountability, and equity tool that provides candid information to clerkship applicants.

Students applying for clerkships nationwide this month must be mindful about who they clerk for. No one should accept a “challenging” clerkship (a euphemism for mistreatment) for the prestige: it is not worth the risk to your life, career, and reputation.

It’s misleading to send students into judicial clerkships year after year without a realistic understanding of the work environment they’re entering, the expectations for the role, and the judge/clerk dynamics. That’s why LAP has transformed the national conversation around clerking from uniformly positive — and misleading — to balanced and realistic.

Every former clerk should share their clerkship experience with LAP, and with aspiring clerks. And everyone applying for clerkships should register for Database access for the real deal on clerking.

This is the first clerkship hiring cycle where more than 1,000 law students and young lawyers will benefit from LAP’s Centralized Clerkships Database to identify a beneficial clerkship and avoid abusive judges. This platform for law clerks to review their bosses is the best opportunity in a generation to make real and lasting change in the judiciary.

And this month, if you post on social media about your clerkship experience — or when you engage in one-on-one conversations with prospective clerks seeking advice — remember that not everyone’s experience is positive. Nor is every clerk looking for a lifelong mentor when they pursue a clerkship.

I do not expect every former clerk to post daily on social media about clerking the way I do. But former clerks who comment should be honest about their experiences. Mistreated clerks who claim on social media that their clerkships were amazing, formative experiences and the best career decisions they made are perpetuating the toxic clerkship culture of the past.

Too often, law clerks give away their power to judges. They assume that, by speaking out, they risk everything, only to be collateral damage in an unaccountable judge’s quest for self-preservation. That’s not true. Stopping the cycle of abuse starts with sharing our experiences, and empowering others to speak out as well.

If we change the legal community’s prevailing clerkship “wisdom”– from clerk-at-all-costs to choose wisely — law schools and others will be forced to change their messaging and advising to accommodate a changing clerkship culture.

Clerkships are not all unicorns and fairy dust, though some will continue to describe them as such. Historically, applicants could not make informed clerkship decisions. Now, they are empowered to be discerning consumers of opportunities.

Considering the particularly consequential nature of this first legal job, we owe it to the next generation of attorneys not only to ensure safe and supportive work environments, but also to be honest about the challenges some will encounter, and to empower them to stand up for themselves.

Every attorney — whether you clerked or not — bears responsibility for creating larger cultural change in the profession. And with transformational change happening right now on law school campuses and in courthouses nationwide, it’s the perfect time to be part of the solution.

 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.

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