Courts

We Should Criticize The Judiciary. It’s How We Hold The Institution Accountable.

Apparently, even the slightest hint of criticism is equivalent to 'attacking' the courts.

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Some judges apparently believe they should be exempt from criticism and public scrutiny — in addition to being exempt from Title VII of the Civil Rights Act of 1964 and other anti-discrimination laws, and from oversight and accountability.

That was one of my takeaways from Thursday’s Federalist Society panel on “the continued independence of the federal judiciary.”

For anyone who wonders why public confidence in the courts has declined, watch this hour-long event featuring Fifth Circuit Judge Edith Jones, Georgetown Law Professor Stephen Vladeck, Washington University in St. Louis School of Law Professor Daniel Epps, Paul Weiss Partner Kannon Shanmugam, and moderator Fifth Circuit Judge James Ho. At a time when the federal judiciary should be a bulwark against political partisanship and government abuses, this panel
may make you almost as skeptical of the courts as I am.

This grievance-fest was, importantly, marketed as “promoting respectful dialogue” about the courts. Yet Judge Ho kicked things off by framing the current landscape as a “war on the judiciary.” Ho and Jones both bemoaned what they perceive to be the less respectful (subtext: less obsequious) tone with which the courts are discussed, which they associated with declining public confidence in the institution.

Apparently, even the slightest hint of criticism is equivalent to “attacking” the courts. It’s too bad some law professors and advocates want to hold life-tenured public servants to basic standards of human decency!

As someone who regularly engages with federal law clerks — and as much as practicable with the courts where they work — my faith in the courts as an institution is low. Why? Because the way judges treat their clerks behind closed doors, when no one is watching, speaks to who they really are. How can we have confidence that judges are neutral arbiters of disputes and fair, impartial
interpreters of the law, when they mistreat their own employees and believe the anti-discrimination laws they interpret should not apply to them?

The federal judiciary deserves significant scrutiny — far more than meager attempts by some in the Congress and the media. Yet the judiciary refuses to recognize the scope of abusive conduct in their ranks, refuses to engage with lawmakers or law clerk advocates, refuses to release any data, and refuses to enact meaningful reforms in the wake of high-profile scandals and sustained criticism. I do not think the judiciary is beyond repair. But they must admit there are problems, and implement solutions. I have a few ideas.

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The benefit of live streaming this panel is that we could all tune in. The downside is that we can literally roll the tape. And “roll the tape” moments, there were.

Judge Jones’s exchanges with Professor Vladeck generated the most attention. Vladeck, a federal courts expert, studies “judge shopping” — the practice whereby litigants seek a friendly home for their lawsuits by filing suit in single-judge districts. He also writes, speaks, and tweets regularly about the courts.

In a particularly meme-worthy exchange, Jones held up a manila folder containing Vladeck’s “mean tweets” (prompting some to joke about the time Jones’s law clerks probably spent printing them out for her), claiming she has “studied” Vladeck. Jones read several tweets (“Hold on — I only have three more!”) as alleged “evidence” of Vladeck’s “attacks” on the judiciary.

According to Jones, “attacks on the judiciary are attacks on the rule of law,” and she misleadingly suggested that critiques of the judiciary led to, for example, threats on Texas federal judge Matthew Kacsmaryk’s life. (Kacsmaryk is the judge at the center of the politically charged Mifepristone case.)

Vladeck interjected several times to clarify: “That’s not what I meant,” and “I think we should provide the context,” to which Jones snapped “I don’t think that’s right.” Frustrated by Vladeck’s attempts to clarify Jones’s misleading statements, Jones slammed the table and scowled. Her irreverent behavior was not particularly becoming of a life-tenured federal circuit judge — and former chief judge — to say the least.

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Given Jones’s anger, you’d think these tweets would be quite scathing. Yet the mundane tweets Jones read appeared to simply describe the process of judge-shopping. Vladeck responded, “Where was the attack in that?” What seemed to set Jones off was not the content of the criticism, but the mere fact that Vladeck dared to disagree with her.

When I watched Jones’s conduct, my first thought was, If this is how Jones treats a well-respected law professor, in public, I wonder how she treats her 20-something-year-old law clerks, behind closed doors, in stressful circumstances, when no one is watching and no one will hold her accountable?

We should not conflate criticism or critique of institutions — particularly the most powerful and least accountable — with “attacks.” As Vladeck said, “that’s a dangerous road to go down.” This is particularly true if we want to promote respectful, balanced dialogue about the courts.

Importantly, Vladeck’s tweets were not “attacks,” since they were neither aggressive, nor intended to spark violence. As someone who regularly criticizes the federal judiciary’s unethical behavior, his statements seemed mild.

It was disheartening, though not surprising, that only Epps defended Vladeck in the moment. But the overwhelming deference granted to judges during this event underscores a much larger issue in the legal profession and media: an industry-wide unwillingness to hold the federal judiciary accountable through dogged reporting and honest dialogue about misconduct in the courts. Law
schools and legal employers purvey overwhelmingly positive — and biased and misleading — messaging about judicial clerkships, and rhetoric, intended to inculcate students, that one should never say anything negative about a judge, even if you were mistreated.

The media, too, has failed to hold judges accountable. Unless journalists or Congress hold the judiciary’s feet to the fire and ask tough questions about their repeated failures to protect law clerks from harassment and abusive conduct, and their refusal to implement reforms in the wake of numerous scandals, the judiciary will refuse to make any changes.

The public deserves to know:

  1. Why does the federal judiciary oppose extending federal anti-discrimination protections to employees?
  2. Is there evidence that judiciary “alternatives” to Title VII have been effective
  3. How many law clerks per year are mistreated? How many are fired or quit
  4. How often do law clerks use internal employee dispute resolution mechanisms, and what are the outcomes?
  5. What metrics does the judiciary use to assess the effectiveness of its reporting and disciplinary mechanisms?
  6. How does the judiciary protect law clerks who report misconduct against retaliation by judges?

Judicial misconduct is only covered by the media when there is a sexy scandal. Even then, the courts are covered with kid gloves. Reporters are loathe to criticize the judiciary and nearly always prioritize “both-sides-ing” over honest reporting. Actually, there are not two sides to sexual harassment.

Too many of my timely pitches to media outlets about judicial accountability are declined as not “newsy” enough, even though they offer an under-represented perspective on the federal courts — the law clerk perspective — and a much-needed critique of the judiciary’s shortcomings. Yet if skittish editors tightly control what gets published and are unwilling hold the judiciary accountable but, rather, cower in the face of judges, what good is the Fourth Estate? This is why I view part of my responsibility, through platforms like Above the Law and my own social media, to ensure the law clerk perspective is properly represented.

Jones used her platform at the FedSoc convention to “defend her colleagues” from what she characterized as unfair criticism. So, it’s equally important for me to defend the hundreds — probably thousands, over the past few decades — of law clerks who have been mistreated by her judiciary colleagues nationwide. I’ll continue to use my public platforms to provide a necessary counterweight to the judiciary’s misleading rhetoric, since formal checks and balances like Congress and the press have failed, while also offering concrete third-party solutions.

What is the takeaway from this panel? Jones apparently believes that judges and the judiciary should not be criticized. She bemoaned the failure of legal academia and bar associations to defend the judiciary — as if the judiciary needs defending (it does not). And she complained about the “unregulated podium in the press and law blogs to cast … aspersions” (referring to journalism and social media), which she seems to perceive as unfair criticism.

Considering the enormous, unchecked power judges wield, it’s ridiculous to claim that judges should not be criticized. With great power comes both the responsibility to wield it ethically, and the expectation that you’ll be held accountable, including by those who disagree with you. To suggest that speech we don’t like should be restricted, based on some judges’ hurt feelings — or that the unaccountable judiciary needs more defenders — is antithetical to an impartial judiciary.

I critique the courts to make them better. It is, of course, our First Amendment right to speak, and to speak critically — a right protected under the Constitution, which Jones swore to uphold. Criticism holds our institutions accountable, especially when few are willing to speak truth to power, fearing reputational harm or retaliation.

When I launched The Legal Accountability Project (LAP), a clerkship transparency and judicial accountability nonprofit, several years ago, I suspected most judges had never been confronted with a negative experience like mine — certainly not on a sustained basis. The federal judiciary should be regularly confronted with experiences like mine — which are not rare — and urged to
make changes, until they finally ensure future generations of clerks do not endure experiences like mine, and those who do, have legal recourse.

As I continued to engage with federal judges, clerks, and those working within the federal courts through LAP, it quickly became clear just how cloistered judges are. They don’t engage on social media. They don’t make regular public statements or comment in the press because they might be perceived by litigants as biased, if they expounded on an issue that later came before the court. And they perceive themselves to be “untouchable” — a word some used privately with
me — exemplified by Jones’s behavior during this panel.

But Jones is not alone: I have found that, the longer judges serve on the bench, the more removed from reality some become. Some have gone decades without anyone challenging or criticizing them. And while they supervise law clerks — new attorneys at the start of their careers — they are decades removed from the daily experience of being a judicial clerk. Too many seem unsympathetic to the enormous power disparity between judge and clerk and the heightened risk of abuses of power in a hierarchical judicial chambers.

And some restrictions on speech are what judges sign up for. In exchange, they are granted enormous power to interpret laws having national significance, substantial prestige of office, life tenure, decent salaries — and, they’re exempt from anti-discrimination laws. Judges do not have bosses, nor do they face oversight over their dealings with subordinates. Judges who don’t like
this are free to leave the bench — and resume their right to expound publicly.

Judges are not gods. We should no longer place them on pedestals. Judges are public figures and public servants, and they are accountable to those they serve. No other public figures are immune from scrutiny or criticism. In fact, Ho himself once said, “If you’re afraid of being booed, you shouldn’t be a judge.” If Jones does not want to be booed, or criticized, she can leave.

The public — who judges serve — has not only the right, but the obligation, to criticize. We should hold judges — the most powerful members of the legal profession and, perhaps, the entire federal government, who make decisions affecting litigants’ lives, livelihoods, and liberty — to the highest ethical standards, not the lowest.

Critiques of judiciary ethical lapses, lack of transparency, and opposition to reform are not personal attacks, though some judges who’d prefer not to be criticized at all take them personally. The public square may be the only real mode of accountability for the federal judiciary right now, considering not only that they are exempt from Title VII, but also that the internal judicial complaint processes are under-utilized shams.

My critiques are not partisan. I suspect Jones would find sympathetic ears for her arguments that the judiciary should not be criticized, and should not change their rules to account for the changing times, from other entrenched judges of her generation across the ideological spectrum.

I’ve identified a generational divide through my work: younger judges, both conservative and liberal, are more sympathetic to the need for workplace protections and greater transparency and accountability. Yet we cannot wait several decades for those wedded to the status quo to retire or die, to make change. (Toward the end of the panel, in response to Epps’s arguments about term limits, Jones quipped, “I’m sorry we’re living longer, but that’s the way it is” — perhaps a good advertisement for term limits.)

Jones, too, criticized the “exploitation of the judicial complaint process,” complaining that “anyone” can file a complaint about a judge and suggesting the process has been weaponized. Apparently, she herself is no stranger to the complaint process. What she misses is that it’s difficult — by design — if you’re a law clerk, considering the lack of basic protection against retaliation. In fact, she failed to mention that only a handful of complaints per year are filed by law clerks, due in part to statements like hers, which appear intended to chill complaints.

Law clerks should not be silenced by these statements. While Jones believes complaints are “distracting” to judges, they should be, for those accused of misconduct, to properly incentivize good behavior and disincentivize misconduct.

Judges are far more concerned with their roles as jurists than they are with their positions as managers, running small workplaces, with all the inherent vulnerabilities this entails. A reshuffling of judicial priorities is necessary. And more mistreated clerks should file complaints and hold judges accountable for misconduct.

In the Third Branch, where judges are immune from suit for sexual harassment; and where law clerks rarely file complaints, complaints are rarely investigated, and judges are rarely disciplined or held accountable, Jones’s opposition to this modicum of accountability under the Judicial Conduct and Disability Act is particularly unpersuasive. Judges have gotten away with egregious misconduct.

We should criticize the federal judiciary more, not less. It is an institution crying out for reform. Clearly, our critiques have been effective — and not just because they have gotten under some judges’ very thin skins. Calls for reform have not gone unnoticed, even if the judiciary has not yet taken the necessary steps to ensure safe and respectful workplaces. More lawyers should speak out and hold the judiciary’s feet to the fire. The public square provides our best hope in the years ahead to hold the judiciary accountable and finally enact meaningful reform.

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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