Who Can Hold Judges Accountable? with Aliza Shatzman

Episode Notes

Transcript

SideBar is brought to you by Monterey College of Law, San Luis Abispo College of Law, Kern County College of Law, empire College of Law, located in Santa Rosa and the colleges of Law with campuses in Santa Barbara and Ventura.

Mitch Winick:

Welcome to SideBar discussions with local, state, and national experts about protecting our most critical individual and civil rights Co-hosts LA Deans Jackie Gardina and Mitch Winick.

Aliza Shatzman:

I think that SCOTUS ethics, while important, gets way too much coverage in the news. These are nine justices. They have 36 clerks total. They handle a handful of admittedly consequential cases each year. I’m glad the ethics code was in the news because that is the same code that currently applies to lower court judges, district and circuit judges, and it is toothless and basically unenforceable and relies on judiciary self-policing, which they are just notoriously unwilling to do.

Mitch Winick:

That’s our guest, Aliza Shatzman, lawyer and founder of the Legal Accountability Project

Jackie Gardina:

Mitch. One of the themes that emerged in the first season of SideBar that we highlighted in our recap was judicial ethics and accountability, or rather the lack of both at the Supreme Court level and today we’re going to turn our attention to accountability across the judiciary as a whole. I’ve been looking forward to this conversation since we first scheduled it. Our guest today has literally made it her job to hold judges accountable for their actions, seemingly a unicorn in today’s legal profession.

Speaker 5:

Jackie Aliza Shatzman is an attorney and advocate based in Washington DC who writes and speaks about judicial accountability, clerkships and diversity in the courts. She’s the founder of the Legal Accountability Project, an advocacy organization that focuses on promoting transparency, diversity, and accountability in judicial clerkships, the judiciary and the legal profession. Aliza is a graduate of Washington University in St. Louis School of Law, best known as Wash U for those from the region following law school, she clerked in the Superior Court of the District of Columbia in March, 2022. Aliza submitted written testimony for a house judiciary subcommittee about the lack of workplace protection for judiciary employees detailing her personal experience with harassment and retaliation Jackie. As you mentioned, we’ve discussed a number of aspects of judicial ethics or lack thereof on previous SideBar episodes, but Aliza’s work through the legal accountability project has focused public attention on what has historically been an area that is just not discussed publicly. The workplace environment of the federal judiciary, an environment in which employees such as judicial clerks are surprisingly not protected by the same federal laws against discrimination, harassment, and retaliation as many of the rest of us. Aliza, welcome to SideBar.

Aliza Shatzman:

Thank you. Thanks for having me on the show.

Jackie Gardina:

Mitch and I often joke that we feel like slackers when we invite guests on here and hear everything that you’ve done, but it’s even more so now because you graduated from law school in 2019 and have already started an organization that is doing amazing work in creating change, which I think so many law students go into law school hoping to do. I want to give people some context for why you are so committed to judicial accountability and why you started the Legal Accountability Project. We have listeners who aren’t attorneys and who may not appreciate the lack of guardrails on judicial behavior. Can you just briefly describe the organization and its focus?

Aliza Shatzman:

Sure. So the Legal Accountability Project is a nonprofit I launched about 18 months ago aimed at ensuring that law clerks, so new attorneys who work for judges have a positive clerkship experience while extending support and resources to those who do not. We really endeavor to increase transparency, accountability, and diversity in clerkships the judiciary and a legal profession through various initiatives including thought leadership, advocacy and importantly legal tech.

Jackie Gardina:

So that tells us about what your organization does, but it doesn’t quite tell us why you are so passionate about this and took on such a powerful judiciary in your work. So what prompted this kind of work?

Aliza Shatzman:

Yep. I decided to take on some very powerful stakeholders and potential partners. So as you mentioned, I graduated from WashU Law about five years ago. I’ll be celebrating my fifth reunion this year though I don’t think I’ll be back there for it. So when I was in law school, I wanted to be a homicide prosecutor in the DC US attorney’s office. So the messaging around clerkships at my law school, like at all law schools, is just uniformly positive. I was told that I was going to develop this lifelong mentor-mentee relationship with the judge for whom I clerked. It was going to confer only professional benefits. So I did what most law students do. I applied broadly across the us, across the political spectrum and accept the first clerkship I was offered. So I started clerking in August of 2019. This was after four internships with the Justice Department preparing to launch my career as a homicide A USA, and unfortunately the clerkship went downhill quickly in ways I hadn’t even considered could happen in a job.

The judge for whom I clerked would kick me out of the Courtroom and tell me that I made him uncomfortable and that he just felt more comfortable with my male co-work. He told me I was bossy and aggressive and that I had personality issues, stuff that would only be said about a female clerk. The day I found out that I passed the DC bar exam, so big day in my life, he called me into his chambers, got in my face and said, you’re bossy, and I know bossy because my wife is bossy. This was just all really devastating. This is my first job out of law school. The judge seemed to be singling me out for mistreatments. I wished I could be assigned to another judge. My workplace didn’t allow for that. So I confided in some attorney mentors who advised me to stick it out, and so I tried.

I knew that I needed a year of work experience to be eligible for next job, that this judge would have a lot of influence over my career. So during the pandemic March, 2020, we transitioned to remote work. I moved back to Philly to stay with my parents, worked remotely. The judge basically ignored me for six weeks before he called me up and told me that he was firing me because I made him uncomfortable and lacked respect for him and he hung up on me. So then I tried to use accountability channels I thought existed to me. I contacted DC Court’s HR and they told me there was nothing they could do that HR doesn’t regulate judges that judges and law clerks have a unique relationship. Then they told me I should have known I was an at-will employee. Then I reached out to WashU my law school seeking, I don’t know, advice and support.

Found out this judge had a history of harassing his clerks that law school officials, including the clerkships director who still works at WashU advising students on clerkships knew about at the time I’d accepted this clerkship. So this was all really devastating, obviously took me a year to get back on my feet before I secured my dream job in the DCUS attorney’s office. While it was always in the back of my mind that I might file a complaint and take action, I think I really just kind of wanted to put this behind me and probably would have, but for what happened next. So I was two weeks into training at the USAO. I had already started working there. When I received devastating news that altered the course of my life, I was told the judge had made negative statements about me during my background investigation that I wouldn’t be able to obtain a security clearance and that my job offer was being revoked.

So I remember crying on the phone with USAO leadership, DC court’s leadership. They wouldn’t tell me what the judge had said and they said the decision was final. So I filed a judicial complaint and I hired attorneys and participated in the investigation into the now former judge partway through that found out he was on administrative leave pending an investigation into other misconduct at the time, he’d filed the negative reference about me, which the USAO was never alerted about. He was removed from the bench for other reasons besides mistreating his clerks. And then we engaged in private settlement negotiations. So January, 2022, he issued a clarifying statement pursuant to our private settlement agreement addressing some but not all of his outrageous claims about me. But by then the damage had been done. It had been way too long. I was pretty much blackballed from what I thought was my dream job, and I now share this experience a lot in my daily work.

And what I always seek to underscore is this, my negative clerkship experience is not rare, but it is one that is rarely shared publicly due to the culture of silence and fear surrounding the judiciary. And so eventually I was participating in the judicial complaint process in the summer of 2021, and that’s when I discovered what you mentioned at the top, which is that law clerks judiciary employees are not protected by Title vii. Folks like me cannot sue our harassers and seek damages, which is outrageous. So I participated in a house judiciary subcommittee hearing on the Judiciary Accountability Act, which is legislation that would finally extend those crucial Title VII protections. And following that began to think about some ideas to further my advocacy work on behalf of clerks, which eventually inspired me to launch a nonprofit to correct injustices I personally experienced as a law student and a LawClerk.

Speaker 5:

Let’s expand this a little for those who are not lawyers listening. Title VII that you referenced is Title VII of the Civil Rights Act of 1964. It’s what we generally know as the anti-discrimination law that actually extends workplace protection to private and public employees. I have to tell you, I was surprised to realize that judicial officers and the federal judiciary is exempt from these type of anti-discrimination and harassment and retaliation laws, federal laws that are exempting federal judiciary from this. This doesn’t even make any sense to me, and I know that you’ve worked through some of the legislative issues. Help us understand what justification has been given that of all things the federal judiciary should be exempt from federal laws on anti-discrimination, harassment, and retaliation.

Aliza Shatzman:

They have never given any meaningful justification. Back in 1964, civil Rights Act has passed. It applies to private employers. Back in 1995, there was kind of a reckoning in Congress and the executive branch, at which time they extended Title VII protections to themselves. The judiciary was just vociferously opposed to being regulated in any kind of way, and they have maintained that position ever since then. Right now the exemption sends a message to judges You are above the laws you enforce, which is outrageous.

Jackie Gardina:

I think you made a really powerful statement when you testified before Congress. You wrote in your statement, Congress, Senate confirmed judges act as if they’re accountable to no one, and the longer they’re on the bench, the more dangerous this God-like complex becomes. That is an incredibly powerful statement. You’ve given us a sense of what you mean by that, and you’ve also given us a sense that this has happened across the board to more than you. Can you give listeners some examples of that God-like complex and how it manifests?

Aliza Shatzman:

Definitely. So this is a pervasive problem in all aspects of the legal profession, starting with law schools and the ways they lionize judges thinking about legal employers and the ways they defer to judges and all the way through. So let’s talk about law schools because that’s a lot of what I deal with. What I always say to law schools is I critique systems that I believe must change while endeavoring not to criticize anyone personally. I think the law schools that generally welcome my work to their campuses understand that and the handful that don’t really perceive me to be criticizing them personally, law schools have historically prioritized the number of clerkship placements period and the prestige of clerkship. So primarily federal circuit is fancier than district Scotus being the ultimate gold star over positive clerkship experience that has caused them to send students into clerkships they know or suspect are bad.

That has caused them to message that a challenging clerkship, which is a euphemism for mistreatment is worth it for the prestige. They routinely tell clerks who are mistreated that the right professional decision is to stay silent. They tell me, most clerks just want to move on. Legal employers prioritize the hiring of former clerks and unfortunately many are still sending the message that when we ask you in a job interview, what did you think of your clerkship? If you say anything other than it was the best experience in my life, that is a red Flagg and we’re going to toss you aside. They also, regardless of whether your judge is listed as a reference, will contact the judge knowing that some judges are challenging bosses, knowing that some judges mistreat their clerks and if the reference is negative or even lukewarm. Again, as my experience illustrates, just tossing clerks aside what I say and now I have data from the legal accountability project to back this up, is that these problems are pervasive and unaddressed in both the federal and state courts.

Unfortunately, LawClerk clerks are really fearful about retaliation, really fearful about reputational harm, which means they rarely speak publicly. They even rarely will share information with their law schools that would empower those law schools to steer students away from judges who mistreat their clerks. So while many judges are wonderful people, I mean we have a judge on our board of directors at LAP, judge Nazarian and I am confident he is a wonderful manager and mentor. Some are not and some need to incorporate more best practices and some are not going to be able to improve and we need to be talking about those judges because unlike most other legal employers, judges have disproportionate influence over their former clerk’s careers as my experience illustrates. So ensuring that judges are not just good jus but good managers is so important.

Jackie Gardina:

We’re going to take a brief break and then continue our conversation with Aliza Shatzman, founder and executive director of the Judicial Accountability Project.

Speaker 6:

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Speaker 5:

It strikes me so incredible that we have to have this conversation in this day and age that we have this type of truly just abuse, managerial abuse in the federal judiciary. We see it in corporations, but hopefully Title VI has had some impact on improving that Jackie. I know you, unlike me, had the academic chops still go out and also be a judicial clerk. That was far from an opportunity for me. So for Aliza and Jackie, congratulations on that. I was too far down in the class roster to have that as an option, but I can’t refer to it personally, but Jackie you did. Does this resonate with you? Were there elements of this when you were a judicial clerk or is this more limited to specific bad actors?

Jackie Gardina:

Everything that Aliza said tracks what was happening in my law school and early legal professional career. Unfortunately, the law school makes a big deal out of both recruiting people to apply for clerkships and who gets recruited to do that and who doesn’t is part of the hierarchy, promoting particular clerkships and celebrating when a student receives a clerkship. But I got my big law firm interview. I truly believe because I had on my resume that I was going to be clerking for a federal district judge. Now, my experience with my judge was excellent, more in line with what Elise has described for the person who serves on her board. He was not only what I think of as a very ethical judge and juris, but also very good to his clerks, and the same is true when I clerked at the First Circuit Court of appeals, the judge that I clerked for had a clerkship family that felt very close to him and very connected to him, and I had good experiences in both, but there was a federal judge that everyone knew was difficult to work for and the understanding was you can do anything for a year, and that judge’s clerks who were close to the chambers where I worked would often come to our chamber for lunch or just to hang out.

He would throw things, he would get incredibly angry. He would berate people and literally for all the reasons that Aliza has described, nothing was ever said or done in relation to his actions towards his employees. Essentially something that would never be accepted in any other workplace is just kind of glossed over because of the prestige of the judiciary and because of the power that they wield.

Speaker 5:

It would seem to me that without being too naive that this issue would be relatively easy to address legislatively or it certainly that should be the underpinning of it. I know in fact in 2021 the Judiciary Accountability Act was introduced in both the House and the Senate, and if passed, it would extend these very same Title VII protections that we’re describing to federal judiciary employees including law clerks and federal public defenders. Aliza, what’s the status of this effort?

Aliza Shatzman:

So it’s a new legislative session, so the JA needs to be reintroduced this year and we believe that it will, the House and Senate, especially the Senate, need to hold hearings on the legislation and we’ll see. We need to again garner co-sponsors. It needs to again garner bipartisan support. Now, the Jay did last year, but it is an uphill battle because while this is common sense bipartisan nonpartisan legislation because both democratic and Republican judicial appointees mistreat their clerks, both liberal and conservative clerks are mistreated. The judiciary, which is, I mean the judicial conference in the administrative office of the US courts are small but weirdly powerful lobbies and so many members of Congress just cower in the face of these judges in the same way that many law schools and legal employers cower in the face of the judiciary. The strange thing is in my conversations with individual federal judges, many are supportive of the J or at least Title VII protections. They say, I didn’t realize I was exempt from Title vii. I used to be a state court judge where I was subject to anti-discrimination laws. Nothing about me magically changed when I got life tenure. The AO and the Judicial conference do not represent the beliefs of most judges, and that is so sad because they wield way too much power.

Jackie Gardina:

I want to switch to something that has been in the news and most of our listeners actually heard us talk about in the last season simply because there was a drumbeat of scandals around the Supreme Court, primarily around money and influence. So the Supreme Court finally kind of adopted a code of ethics and I put code of ethics in air quotes and one criticism is that the ethics code is unenforceable. There’s no mechanism to hold them accountable if they violate one of the standards, what do you see as the way forward?

Aliza Shatzman:

Good question. I think that SCOTUS ethics, while important gets way too much coverage in the news. These are nine justices. They have 36 clerks total. They handle a handful of admittedly consequential cases each year. I’m glad the ethics code was in the news because that is the same code that currently applies to lower court judges, district and circuit judges, and it is toothless and basically unenforceable and relies on judiciary self-policing, which they are just notoriously unwilling to do. We think of other entities that used to self-police like the military and police unions, not to criticize those entities generally, but to say we know that there was abuse and that fellow police officers, fellow military officers would not hold each other accountable, and that’s why those mechanisms discipline were taken out of those chains of command. The same needs to be done with the judiciary’s code of conduct. It needs outside enforcement, outside oversight. The judiciaries had decades, really centuries to self-police and they have just shown themselves unable or unwilling to do that, and every single year clerks are mistreated and every single year people just stay silent or stay complicit and it is time for a reckoning.

Speaker 5:

You’re not going to find Jackie or I disagreeing with you on any of those issues. We’ve talked about them on the program before and we’re thrilled to have you talk to us about it and expand it into a broader context. While we’re picking on the Supreme Court, you recently commented on Chief Justice Roberts annual report on the judiciary. We know what you think about his lack of attention to judicial ethics in his statement, but you went further and talked about his comments about technology. One of the things that becomes clear is if you use a simple example such as small claims court or traffic court courts where individuals frequently are representing themselves and the idea that somebody standing in one of those traffic courts in a three piece suit, well dressed well coifed is in front of the judge and the very next person is standing there in paint splattered work clothes with work boots and multi-day growth, the odds are that they get a different experience in court and one of the arguments is that AI would look at the underlying facts and at these lower levels actually remove a level of bias that the human element brings in.

And I’m just fascinated about that idea. I’m not sure exactly how I fall on the issue, but I just wonder what your thoughts were about that.

Aliza Shatzman:

It also depends on who the judge is as to whether they get a more or less fair shake depending on who they are. I’m not insensitive to the benefits of technology. I guess I’m not sure yet. I don’t know enough about AI to comment expertly. I have been following some of the tech platforms that increase access to justice for unrepresented litigants, and I think those are really transforming the future of the legal profession and judiciary in ways I think are truly awesome. The idea that you no longer need an attorney to assist you in a place like traffic court or small claims courts or family court where I spent part of my clerkship is really incredible.

Jackie Gardina:

I want to point out something that I think does relate what Mitch is talking about. Back to the issues that you’re invested in Mitch, really his question was really about bias. It was about human judge looking at someone and making a determination that they deserve a break or they don’t deserve a break based on appearance. And one of the things that is very telling to me about some of the stories that you’ve been able to tell or that clerks have been able to tell is that a judge’s treatment of their clerks, especially for example, female clerks or clerks of color certainly does not stay in chambers and can easily be transferred to how they treat plaintiffs or defendants. I have an example from my own clerkship and again, really adored my judge, but white male in his sixties grew up at a time when women were in a very different position and he was hearing a discrimination suit and he was really struggling with the evidence and he said one day, but I say some of those things, and so it was hard for him to see that as potentially discriminatory behavior because he has said some of those things as well, but he was at least aware enough to make that connection.

I think one of the things that concerns me is the hidden behavior in chambers is actually representative of their biases that gets transferred onto the bench and how they treat parties. Is that part of what you talk about as well?

Aliza Shatzman:

It definitely is. I think that the way judges treat their clerks behind closed doors when no one is watching speaks to who they really are, speaks to those biases. That’s why the issues I talk about affect everybody, whether you clerked or not, whether you’re an attorney or not, and I mean, what is a Title VII litigant a woman to think when she’s appearing before a judge who is not even subject to those same laws. It also speaks to the necessity of diversifying judicial chambers, of course, of diversifying the bench, recognizing diverse judges are certainly not exempt at all from the problematic behaviors we’ve been talking about. It’s about creating a judiciary and judicial chambers that are kind of representative of the country generally so that judges are sensitive to those appearing before them, and part of that is making the judiciary more representative and part of them, part of it is training judges on some of those biases.

Jackie Gardina:

When we come back from this break, we talk with the Lisa Shaman about what it takes to be a whistleblower knowing it could impact your reputation and career trajectory.

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Jackie Gardina:

I think one of the things that you’ve really brought to the forefront is the fear that judicial employees, and I’m going to call them employees to make it more relevant to those who get up and go to work every day someplace other than a judge’s chambers, their employees at will employees, as you experienced, is silence as in any workplace, allows this behavior to continue and the fear of retaliation and effect on long-term career, especially for someone just starting out is huge. It’s enormous. I’m not sure people realize the risk you took when you filed the complaint, when you testified before Congress, when you started the legal accountability project and started challenging the judiciary. I know lots of times I hear from law students and even new lawyers who are facing difficulties that they’re afraid of retaliation or they’re afraid that their careers are going to be affected. I am just curious what made it possible for you to move past that and what advice would you give to others in similar situations?

Aliza Shatzman:

So there was not really a day after I was fired from my clerkship when I didn’t think I would take action, try to hold the now former judge accountable, file a complaint, because for me not reporting, not speaking out would mean he would totally get away with mistreating me and mistreating others. Now, it became more urgent, the filing of the complaint after I lost my job at the US Attorney’s Office, even after my complaint was dismissed by the Judicial Commission, we pursued private settlement negotiations, but I always knew that for me speaking out would be a mode of accountability. It is empowering every time I share my experience, so I always say that we talk a lot about the reputational risks of whistle blowing. We speak far too little about the benefits and how empowering it is and how many people you will help by speaking out. The advice I would say if you are considering speaking out is like do it. I mean you don’t know how many people you’ll help. It is empowering. My advice is just push through the fear. Fear is what silences clerks, and it’s really sad because it is the most pervasive emotion I encounter in every single conversation with a clerk. And I worry that those in judiciary leadership who’ve been so resistant to change do not understand the daily experience of being a judicial clerk. The fear, the power disparity, the pressure to stay silent.

Speaker 5:

Aliza, let’s wrap up with what I think you are saying is a positive message, which is you have survived speaking up, you have carved your own opportunity to have a voice, to create voice for others, and so am I right in assuming that is one of the messages you would send to students who are currently in our law school, which on these issues and others being a young lawyer, is having a voice and you should use it.

Aliza Shatzman:

Absolutely. I visit a lot of law schools for programming and our message is always one of empowerment. It is about showing students that you can use your jd, you can use your voice to create real change. I mean, I have turned my one person mission into a movement over the past 18 months, and one person can definitely create real change. I mean, if you see a void and unmet need, if you have an idea, you should go for it.

Jackie Gardina:

I think that’s an absolutely wonderful way to end. Thank you so much for joining us today,

Speaker 5:

Aliza. Thank you for joining us.

Aliza Shatzman:

Thank you for having me on the show.

Jackie Gardina:

Mitch. Part of what really struck me towards the end of our conversation with Aliza was her passion about using your voice. She’s someone who graduated from law school just five years ago. She had a terrible experience and what she did with that terrible experience was translated into action so that others would not have the same experience she did and would receive protections that she didn’t receive. And I think that just speaks volumes about her as a person, but also what I hope all of our students or everyone who attends law school recognizes about the power of a JD to help create change in the world.

Speaker 5:

Jackie, I agree with that message, and I think I would expand it a little further. As I listened to Aliza, obviously she has the power of a JD that gave her a unique voice. I think the underlying message was that living in the shadows of abuse and mistreatment, whether it be in a domestic violence setting or an employment setting, or even as the clerk of a federal judge, is just not okay. And I think what she is helping to prove is as difficult as it is and the courage that it takes at the end of the day, these are the steps that all of us need to take to support this type of reporting, to support a transparent and fair process, a process in which there are hearings and review and objective evaluation. All of these things are critical, and we tend to assume that we’ve overcome those somehow in a modern era, and Aliza reminds us that no, we haven’t. There’s still work to be done.

Jackie Gardina:

The last comment I’ll make is something that, well, I’ve been struggling with since we started the podcast and since so many of our guests have raised questions about judicial integrity, judicial ethics, and now with Aliza even talking about it throughout the judiciary and not just focused on the Supreme Court and money and influence, I believe deeply in our system. My experience on the clerkship was really cementing my belief in our judiciary and the good work that judges attempt to do day in and day out. And I don’t want our students or our listeners to lose sight of the fact that while there are bad actors, just like there are bad actors in any environment, there are a ton of really good judges at the state and federal level who go in every day and try to do justice. Once again, I want to thank everyone who joined us today on SideBar and as always Mitch and I would love to know what’s on your mind. You can reach us at SideBar media.org.

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SideBar would not be possible without our producer, David Eakin, who also composes and performs all of the SideBar music. Thank you also to Gogo Zoger who manages sidebars marketing and social media.

Jackie Gardina:

Colleges of law and Monterey College of Law are part of a larger organization called California Accredited Law Schools. All of our schools are dedicated to providing access and opportunity to a legal education to marginalized communities.

Speaker 5:

For more information about the California accredited Law schools, go to ca law schools.org. That’s ca law schools.org.

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