Update To The Law Clerk’s Handbook

In telling her story of serving as Kozinski’s clerk, one of the wishes of Heidi Bond was that judicial law clerks were informed that they didn’t have to remain silent about impropriety within chambers.

2. I want the law clerk handbook distributed by the judiciary to explicitly state that judges may not compel clerk silence on matters like the ones I have described here. I also believe that there should be a person, or persons, or an institution that clerks can turn to in order to find answers. I understand that there are reasons why no such institution exists now—judicial independence and confidentiality must be fiercely protected. I also believe that the judiciary is capable of coming up with a solution to this problem.

For the unwashed, the young lawyers who are hired as law clerks are the “best and brightest,” with top grades, law review, Order of the Coif, and whatever other awards law schools have to dole out. And not just any law schools, but the best law schools. The most selective. The most revered. While they may lack wisdom, no one can say they aren’t smart.

One might wonder whether Bond’s wish really needed to be said. If their judge murdered cats in chambers, did they think it was subject to confidentiality? In fairness, these are young people, impressionable people, serving the great minds they were taught to adore, thrust into this world they dreamed of for years to be one of a very select group who might someday be important in the law as well. Who are these kids to question their judge? Who are these kids to defy their instructions?

With a speed that’s shocking given the pace of the law. the Clerk’s Handbook has already been updated in light of Kozinski.

Law clerks should be careful about publicly discussing their judge and chambers-related activities beyond case-related matters. For example, clerks should not publicly discuss their judge’s personal views about political, social, or other matters that could arise in litigation, nor should clerks reveal a judge’s travel plans. In general, clerks should respect and protect the privacy of their judge. However, nothing in this handbook, or in the Code of Conduct, prevents a clerk, or any judiciary employee, from revealing misconduct, including sexual or other forms of harassment, by their judge or any person. Clerks are encouraged to bring such matters to the attention of an appropriate judge or other official.*

* Clarifying language in italics added December 18, 2017

Was this necessary to say? Apparently, given that Bond believed herself constrained from saying anything. And even if it seems patently obvious, so what? Does this explicit caveat do harm? That’s not so simple a question to answer.

The handbook doesn’t define “sexual or other forms of harassment.” Harassment is one of the words that’s taken on a meaningless life of its own, where it could mean the single utterance of a word that offends someone with particularly delicate sensibilities or severe and pervasive attacks.

Notably, it’s not just sexual, as with Dahlia Lithwick’s stare rape complaint,* but extends to any conduct that a law clerk might find harassing. Given the demands of the position, the nature of old judges speaking freely in chambers, the opportunity for being victimized is huge. Certainly, some conduct should be clearly wrong, whether sexual or otherwise abusive. For the most part, decent men and women just don’t do such things.

But at the fringes, there is much that could be problematic, and there is a constant, and growing, disconnect between what young people perceive as harassment and older people perceive as either humorous, ordinary or, at worst, petty.

Assuming law clerks are sufficiently smart enough to recognize the difference between matters that are sufficiently serious that they should, if not must, be revealed, none of this will prove to be a problem. They recognize the opportunity presented by being a law clerk. They realize that if they run around screaming “harassment” over things that aren’t, it will not reflect well on them. Then again, this is the complaint about revealing sexual harassment too, that nobody likes a snitch and their futures will be tarred by their ratting out their judge.

Judge Kopf offered an idea, that maybe the law clerk hiring process would do better if judges hired clerks with a few years experience rather than straight out of law school. This way, they would gain some maturity, perspective and be tough enough to speak out about impropriety, as well as tough enough to distinguish between harassment and their personal delicacy. It’s hard to do when one’s eyes are filled with stars and glory.

But the bottom line is that Article III judges should never put their law clerks into this position. My experience is that federal judges are exceptionally courteous, respectful, decent people. They can be testy, irascible and, of course, completely wrong, but they are good people. The Sam Kents are extreme outliers. They exist, but they are far removed from the norm.

Will this change in the handbook, in the atmosphere, create a minefield in chambers? Beats me. I suspect not, as most judges won’t be concerned about their conduct. And if clerks are abused, they should know that they don’t have to take it. And they don’t. The change has been made and explicit language added** to the handbook. Bond got her wish.

*The horrifying incident was related by Lithwick:

Without my prompting, my former co-clerk described this interaction in an email to me this week. “He completely ignored me and appeared to be undressing you with his eyes,” he wrote. “I had never seen anyone ogle another person like that and still have not seen anything like it. Was so uncomfortable to watch, and I wasn’t even the subject of the stare.”

**The new language refers a clerk to “an appropriate judge or other official,” which is about as vague and unhelpful as possible. They might want to work on that a bit.

17 thoughts on “Update To The Law Clerk’s Handbook

  1. B. McLeod

    In another article on this topic, the “appropriate judge or other official” language seemed connected to a survey where large numbers of clerks wanted a “secret” reporting process such that they did not have to go to the judge they work for. If supplying such a process is indeed the goal, it gives me pause that anyone with authority to change this handbook actually thinks judicial officers should be subject to a secret inquisition process where the accusers would remain anonymous.

    1. SHG Post author

      Introducing anonymity into this morass is a different animal, but there is absolutely nothing in the new handbook providing for anonymity, so let’s not start comments off with a dive down the rabbit hole.

      1. Kirk Taylor

        Wait, there are rabbits here?

        I think her point might be something that’s desperately needed in this type of situation. Something akin to the Navy’s post-Tailhook “informal resolution” process, where the kind of middle of the road behavior that might or might not be harassment was handled informally. Basically, there was always someone you could talk to who could, anonymously or not, take someone aside and go, “Stop being a douche.” The alleged douche would hem, haw, whine and claim everyone was being overly sensitive, but, generally, they would tone the douchiness back and everyone was relatively better off. It wasn’t perfect, but it handled a hell of a lot of stuff BEFORE it had to get all legal and lawyerly.

        1. SHG Post author

          I like you. I bet reddit will like you too. And probably appreciate you, as well.

          For anyone else inclined to dive ever deeper down this rabbit hole, don’t. I will trash your comment and ridicule your heritage.

  2. James L. Smith

    Well, at least his chambers were not like those of Tennessee judge, David Lanier, who’s still in prison for multiple rapes.

    Judge Kozinski did some wonderful work protecting constitutional rights, especially the rights guaranteed by the 2nd Amendment.

  3. Ahcuah

    According to Heidi Bond, she had questions about how much of what happened to her was covered under judicial confidentially. (Part of that was molded by Judge Kozinski’s comments in a book review of Closed Chambers: “The clerk has a duty of diligence, loyalty, and confidentiality, both to the Justice who appoints him and to the other Justices. He also has a duty of loyalty to his fellow clerks and to other Court employees.”) She went to Judge Scirica, then the chair of the Committee on Judicial Conduct and Disability, and tried to give a feel for what had happend without facts that might breach confidentiality. It turned out (again, according to Heidi) that there was a nexus of facts relevant to US. v. Isaacs.

    His answer, “I cannot think of any person, persons, or institution that can give you an answer on this.” (So as not to violate your link rule, a Google search on that phrase will give some sources.)

    She got the same answer from the chair of the Committee on Codes of Conduct.

    This may have something to do with the line in the Handbook regarding bringing such matters to the attention of an appropriate judge.

  4. Richard Kopf

    SHG,

    Without intending to be coy, I have reason to think that, beyond the changes in the handbook, additional efforts will be made by the federal judiciary to examine the sufficiency of the safeguards currently in place within the Judiciary to protect court employees, including law clerks, from wrongful conduct in the workplace. For now, I will leave it at that.

    All the best.

    RGK

        1. SHG Post author

          I see that CJ Roberts sent a memo.

          [E]stablish a working group to examine the sufficiency of safeguards currently in place … to protect court employees, including law clerks, from wrongful conduct in the workplace.

          Well, that’s that.

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