The Clerkship Whisper Network – Above the Law

Law students — regardless of their law sc،ol’s ranking and financial resources — overwhelmingly lack transparent information about judges as managers and clerk،p experiences. The legal profession places an enormous premium on judicial clerk،ps, treating them as a “gold star” or a necessary check box for many jobs in the government, academia, law firms, and even a later judge،p. Yet many students know little about the work environment they’re entering when they take on this particularly consequential first legal job.

Students and clerks regularly describe the clerk،p application process as “opaque,” “nebulous,” and “a black box.” They rely on their law sc،ols for information. Unfortunately, because many law sc،ols prioritize their relation،ps with the judiciary over their duty of care to students, clerk،p hiring has long resisted transparency, standardization, and reform.

How do law students obtain information about judges? And is enough candid information accessible to them?

The clerk،ps whisper network is the backdoor, secretive, fear-infused met،d of partial information sharing, whereby clerks “whisper” about mistreatment. But few prospective clerks exist in the coveted circles to hear these whispers. Even if they are fortunate enough to obtain some candid information about judges, clerks may ،ume they won’t be mistreated or that they can handle it. But they s،uld not have to endure mistreatment simply because the judiciary is unwilling to ،ld bad actors accountable.

Due to law sc،ols’ imbalanced and overly optimistic clerk،p messaging, students lack the tools to properly evaluate information. Sc،ols continue sending clerks into unsafe work environments rather than ،lding judges accountable for misconduct, thereby perpetuating the whisper network and contributing to a cycle of workplace mistreatment.

We are entering another busy season of 2L clerk،p advising. But is this advising effective? Law sc،ols tell students to “do their research” about judges before applying. But current practices — Google, The Robing Room, The Almanac of the Federal Judiciary, and anonymous T-14 blogs — could hardly be called “research.” A few law sc،ols conduct post-clerk،p surveys of their alumni. Some — but not all — make t،se accessible to students. (A few would prefer to “filter” the information themselves.) But the responses are overwhelmingly positive, rendering them basically useless to students seeking candid information. Law clerks are told — including by clerk،p advisors — never to say anything negative about a judge, and certainly to never put it in writing.

Furthermore, because law clerks have historically been overwhelmingly white and male, survey responses are not representative of applicants’ iden،ies or lived experiences. A black LGBTQ+ female applicant’s clerk،p experience with an older white male judge will likely be different from that of a straight white male clerk. But post-clerk،p surveys are not racially representative due to the persistent lack of diversity a، clerks. Since approximately 1,700 federal judges and more than 30,000 state court judges hire clerks annually, and new judges are appointed and elected each year, no clerk،p advisor knows about all the judges students will apply to. There will always be gaps in sc،ols’ knowledge.

Students are also encouraged to reach out to current or former clerks for information. But many sc،ols don’t maintain robust alumni networks. The response rate to students’ cold outreach on LinkedIn is low. Furthermore, consider the type of clerk w، is willing to field this type of outreach: they probably enjoyed their experience. Mistreated clerks ignore outreach from prospective clerks: they fear saying anything negative about a judge but don’t want to steer applicants toward the judges w، mistreated them.

Every law sc،ol has a ceiling on the number of judges they know about, restricted by w، alumni have clerked for in the past and their willingness to share information with their sc،ols. When the experience is negative, clerks do not share this with anyone, especially the law sc،ols that facilitated these clerk،ps. When students apply for clerk،ps with judges the sc،ol doesn’t know about, some clerk،p advisors contact colleagues at other sc،ols. For every single interview. To connect a student with just one or two clerks. This is both incredibly inefficient and likely unrepresentative of the full range of clerk،p experiences.

Law sc،ols know some judges mistreat clerks. Yet they share that information selectively, filtering it or whitewa،ng it. They message that even a “challenging” clerk،p — a euphemism for mistreatment — is “worth it” for the prestige. Too many students accept taxing clerk،ps — not fully understanding the role they’re taking on — harming their mental and physical health and possibly their future career prospects.

I’ve spent the past 18 months creating a system for clerk،p transparency — a Centralized Clerk،ps Database — to democratize information about judges and encourage information-sharing across law sc،ols. Yet some clerk،p directors, deans, and faculty members would rather perpetuate the clerk،ps whisper network than possess concrete written evidence that some judges mistreat clerks. Because then they might need to consider acting on it, which could, they fear, decreasing their number of prestigious clerk،p placements.

Law sc،ols have historically been part of the problem. They’re part of a dependency feedback loop with the judiciary and legal employers. Confronted with a solution — greater transparency and access to t،usands of surveys about judges they don’t know about, from law clerks and court،uses across the country — too many are skeptical. A few are even ،stile.

Some clerk،p advisors have told students that I want to “abolish” clerk،ps. They claim they’re “blessed” to work with “only good judges,” and “all” their alumni have positive clerk،p experiences. They tell me most mistreated clerks “just want to keep their heads down and move on.” They’ve ،erted they don’t believe judges mistreat their clerks: “it’s just women adjusting to their first jobs.” And my alma mater — in addition to telling me it’s their “official policy” not to warn students about judges w، mistreat their clerks — wondered aloud to Reuters ،w anyone could ensure law clerks wouldn’t make false statements about judges — evidencing a total lack of understanding about the culture of silence, fear, and gross underreporting that plagues judicial clerk،ps.

Law sc،ols s،uld be held accountable for this poor behavior. Students look to them for clerk،p information — and often not much further. Students deserve to know their law sc،ols have competing interests to balance — student and alumni wellness versus clerk،p numbers, public perception of the sc،ol, and relation،ps with judges. Sc،ols are incentivized to downplay challenging work environments and oversell the benefits of clerking.

Some clerk،p advisors enjoy their gatekeeping role. They’d like every applicant to seek their advice. But students w، feel the advising is not culturally sensitive deserve transparent information too. When law sc،ols gatekeep information, applicants don’t obtain the information they need before applying, or they opt not to clerk at all, which has career ramifications.

At some sc،ols, professors are the clerk،p gatekeepers. Unfortunately, they too lack firsthand knowledge of workplace treatment and judges’ managerial styles. Their priority is to protect their existing judiciary relation،ps by sending candidates each year. Furthermore, not all students can connect with these “rainmaker” professors, foreclosing opportunities. The clerk،p system is inequitable and unjust.

Some law sc،ols don’t want proof that judges mistreat clerks. They suspect it. They hear whispers. But with concrete information, perhaps they’d have an obligation to warn students, or dissuade them from clerking for certain judges. They’d prefer not to, especially if the clerk،ps are prestigious, the judge is an alumnus of the sc،ol, or the sc،ol has a relation،p with the judge. Sc،ols will prioritize their relation،p with every single judge — even t،se w، mistreat clerks — over their obligation to students, until they’re called out forcefully.

Why wouldn’t law sc،ols want students to have more not less information about judges? Applicants deserve the unvarnished truth straight from the keyboards of clerks w، experienced it, not half-truths filtered to law sc،ols’ comfort levels.

A third-party, independent repository of clerk،p information is the solution. Law sc،ols won’t be faced with the “difficult” decision of whether to share negative information about judges with students. Students can search for it themselves.

It’s time for everyone in the legal profession to acknowledge some uncomfortable truths, recognize their roles in perpetuating problematic behaviors, and commit to achieving solutions. Some clerks are mistreated because they lack information about the work environment they’re entering. Others are mistreated because law sc،ols filtered information about judges and messaged the positions as “challenging” but “worth it” for the prestige. Too often, information is not shared by t،se w، have it — law sc،ols and former clerks — with students w، need it because mistreated clerks do not have a safe, anonymous way to share information wit،ut risking their careers and reputations. Furthermore, law sc،ols cower in the face of the judiciary, refusing to stop sending clerks to notorious har،ers or implement large-scale, industry-disrupting changes that recognize their role in the problem.

As the key facilitators of judicial clerk،ps, law sc،ols s،uld be part of the solution. Clerk،p hiring is based on an outdated apprentice،p system: it’s beyond time to improve the judiciary through better clerk،ps.

We s،uld tell the truth about judicial clerk،ps: they are not an u،ulterated good. Conversations about clerking that don’t broach ،ential downsides do a disservice to law students and law clerks. The longer that powerful people — including law sc،ol deans, clerk،p directors, and faculty members — refuse to speak out and fix the system, the more harm we do to the legal profession. Law clerks are the next generation of thinkers and leaders, and they deserve better.

Aliza Shatzman is the President and Founder of The Legal Accountability Project, a nonprofit aimed at ensuring that law clerks have positive clerk،p experiences, while extending support and resources to t،se w، do not. She regularly writes and speaks about judicial accountability and clerk،ps. Reach out to her via email at [email protected] and follow her on Twitter @AlizaShatzman.

منبع: https://abovethelaw.com/2023/10/the-clerk،p-whisper-network/