Courts

Not Every Good Jurist Is A Good Manager

The judiciary has done little to train judges as managers, despite the enormous influence judges exert over clerks’ careers.

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(Photo by Bill O’Leary/The Washington Post via Getty Images)

You can be a strong jurist and a poor manager. But no one takes that into account when judges are appointed for life, given enormous power, and tasked with running small, intimate, high-stress workplaces.

On July 31, a three-judge panel of the Federal Circuit issued a more than 300-page report and recommendation in the controversy surrounding 96-year-old Judge Pauline Newman, who refuses to participate fully into an ongoing inquiry into her judicial fitness. The special committee recommended that no new cases be assigned to Newman for one year, or until such time as she participates in the inquiry into her conduct.

This report leaves much to be desired. For example, the committee recommends that no new cases be assigned to Newman for one year. But what about her existing cases? Have those been reassigned and resolved? The litigants who were harmed by substantial delays on Newman’s calendar — including pro se litigants — have limited recourse if the judge handling their case is unable to efficiently exercise their judicial duties.

Additionally, will Newman collect a paycheck even though she is not hearing cases? And importantly, will she continue supervising law clerks, judicial assistants, and other court staff?

The report robustly documents Newman’s apparent inability to manage court staff, including law clerks and judicial assistants. Apparently one of Newman’s law clerks — her permanent clerk — repeatedly called and texted the judicial assistant (JA) outside of work hours, including in the middle of the night, regarding both work- and nonwork-related matters. During one 3 a.m. phone call, the law clerk requested a 6 a.m. wake-up call. (This permanent clerk allegedly handles nonjudicial tasks for Newman, including her grocery shopping and driving her to doctors’ appointments.)

When the JA raised this with Newman, she refused to act, characterizing the JA’s concerns as “not significant” and responding that “people have different schedules.” The JA then raised this with the Circuit, participating in the Employee Dispute Resolution (EDR) plan, the internal courthouse process for handling workplace issues. The chief judge moved the JA to a workstation outside of Newman’s chambers. Newman reportedly threatened to have the JA arrested and removed from the building and indicated that if he did not return to chambers immediately, he would be deemed to have resigned.

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The JA alleged that Newman retaliated against him, including by telling other courthouse employees that he “could not be trusted.” Newman then allegedly violated the confidentiality provision of the EDR plan by sending a group email to 95 courthouse employees, complaining about the matter and identifying the JA by name. The JA ultimately resigned and indicated that he wished to have no further contact with the judge.

Additionally, one of Newman’s other law clerks objected to working on matters related to Newman’s personal disability defense, conveying that it took a toll on his mental health. He requested reassignment to another chambers. Newman responded with an ultimatum: stay or resign. He, too, ultimately resigned.

It is a judge’s responsibility, as the employer, to set the tone in chambers and respond to workplace issues. Our current decentralized system of federal judiciary workplaces — designating the judge as hiring manager; human resources coordinator; and Diversity, Equity, and Inclusion (DEI) director — is not ideal. But we must ensure that judges are not just good jurists, but also good managers.

I hear regularly from law clerks who are mistreated by a fellow law clerk, JA, or courtroom clerk. When they raised these concerns with the judges they work for, they did nothing. A judicial chambers can only run effectively when the workplace is hospitable to all employees. When law clerks accept clerkships, they may or may not know a bit about the judge as a manager. But they often know nothing about their co-clerks, who are hired separately. Judges should foster positive chambers culture. They are not simply tasked with interpreting the laws; they are also managers running small government workplaces, with all the inherent challenges this entails.

Not every good jurist is a good manager. Yet judges supervise clerks, fresh out of law school, who work closely in a hierarchical work environment for long hours in stressful circumstances. Today’s law clerks are tomorrow’s prosecutors, public defenders, Biglaw partners, law professors, and judges. Clerkships often set the stage for prestigious legal careers. Yet the judiciary has done little to train judges as managers, despite the enormous influence judges exert over clerks’ careers.

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Judges often ask me about best practices for managing clerks. Here are a few suggestions, based on those conversations:

Law clerks seek robust feedback. This entails more than just an affirmation that a document is okay to file. When your clerk does a great job, tell them. Taking time to provide verbal or written feedback is important. It shows respect for your employees and that you take your role as manager and mentor seriously. Ask new clerks how they would like to receive feedback, and incorporate that. The judge/clerk relationship goes both ways: both parties should adapt.

Communication is key. One of the easiest ways for workplace issues to fester is if the judge fails to communicate when something is bothering them. Address issues directly. Some judges encourage clerks to push back and offer dissenting views. These expectations should be clearly communicated at the outset. Neither judge nor clerk is a mind-reader regarding expectations, communication style, or workplace culture.

Consider creating a law clerk manual. In many cases, law clerks receive little training when they begin their clerkships. A manual clearly delineating best practices and expectations at the outset — and throughout the clerkship — can lessen miscommunication.

Meet with clerks weekly to check in and provide feedback. Judges are busy. But clerks play an integral role in the functioning of chambers and courthouses.

Treat clerks with respect. Chambers are stressful. But don’t yell or throw things. How judges conduct themselves in chambers when interacting with their clerks sets a precedent for how law clerks will behave throughout their careers, not only in their next legal job, but when they are in a supervisory role. Employees who are disrespected in the workplace disrespect others because they learn that this is acceptable behavior.

Try to make the clerkship work even if a clerk is a less-than-perfect fit. Both judge and clerk make a commitment to the one- or two-year clerkship. Both are invested in the relationship. It takes time to train someone new. Furthermore, ending a law clerk’s term early has enormous implications for their career.

However, judiciary leadership must also do better. Of course, the best scenario would be for Congress to confirm jurists who are also good managers. Judicial appointees should answer questions during the vetting process about their conduct in previous managerial roles. And their employees should be invited to weigh in about workplace treatment. In some many instances, known harassers — or notoriously bad bosses — mistreated employees in previous legal jobs before they took the bench, but this was not sufficiently raised during the confirmation process.

Chief judges often know what happens behind chambers doors. They should supervise and train judges on management style. There is a troubling lack of training for judges as managers. (In fact, even EDR training is not mandatory). Each circuit – or each courthouse — should run annual, mandatory managerial training for all judges, utilizing outside experts to teach best practices. Additionally, chief judges should conduct — at least monthly — meetings with judges to review their management of clerks.

Judges ask me how to solicit feedback on their role as managers. Due to law clerks’ fears of retaliation and reputational harm, this is challenging. However, chief judges could schedule meetings — or provide an “office hours” type forum — to solicit feedback from clerks. That feedback could be aggregated, anonymized, and presented either individually or as a group to judges, as part of their annual best practices training.

Judges — the most powerful members of our profession — make decisions every day that implicate litigants’ lives, livelihoods, and liberty. They are supported in this critical work by law clerks who rely on them to be not just good jurists but also good bosses. Chambers cannot be managed efficiently — and orders and opinions crafted effectively — when judges fail in this role. Our judiciary would be more effective in resolving court business if more good jurists were also good managers.

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 Aliza.Shatzman@legalaccountabilityproject.org and follow her on Twitter @AlizaShatzman.

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