Being a victim of discrimination and harassment at the hands of an employer is hard enough, but what happens when your employer is a judge? On episode 39 of the California Appellate Law Podcast, Aliza Shatzman discusses her personal experience and why it was not only personally horrifying, but damaging to her career.
Aliza also shares how the experience motivated her to create the first-of-its-kind Legal Accountability Project, a resource for aspiring law clerks and other judicial employees.
We also cover with Aliza:
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Tim Kowal 0:03
judges and have discipline their own, don't they?
Aliza Shatzman 0:05
Oh gosh. I wish judges are notoriously unwilling to discipline their own.
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal, and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis.
Tim Kowal 0:26
Welcome, everyone. I'm Tim Kowal, all operating under a provisional license from the California Department of podcasting.
Jeff Lewis 0:32
And I'm Jeff Lewis. The California appellate law podcast is a resource for trial and appellate attorneys. Tim and I are appellate specialists. But both our practices are split about even between trial and appellate courts. And in each episode, we bring our audience practice tips and legal news they can use in their practice,
Tim Kowal 0:48
and welcome to episode 39 of the podcast. A quick thank you to our podcast sponsor case text case, text is a legal research tool that harnesses AI and a lightning fast interface to help lawyers find case authority fast listeners of the podcast will receive a 25% lifetime discount available to them if they sign up at case text.com/ca LP. That's case text.com/ca LP.
Jeff Lewis 1:15
All right, and today we welcome attorney Elisa shots men to the podcast. Elisa is the president and co founder of the legal Accountability Project, a nonprofit aimed at ensuring that as many law clerks as possible have positive clerkship experiences while extending support and resources to those who do not. Elisa, I earned her BA from Williams College and her JD from Washington University School of Law. And during law school, She interned with four different components of the US Department of Justice. After law school, she clerked in the DC Superior Court in March 2022. She submitted a statement for the record for a House Judiciary Subcommittee hearing detailing her personal experiences with harassment and retaliation by former DC superior court judge. The intent of our statement was to advocate for the judiciary Accountability Act, legislation that would extend Title Seven protections to employees of the federal judiciary, Elisa regularly writes and speaks about judicial accountability. She has been published in the UCLA Journal of gender and law, the NYU Journal of legislation and public policy above the law law 360 Slate, Ms magazine and balls and strikes. Elisa also has two forthcoming short pieces in the Harvard journal on legislation and the Yale Law policy review. Welcome to the podcast.
Aliza Shatzman 2:37
Thanks for having me on the show. Yeah,
Jeff Lewis 2:39
no problem. Before we jump into the legal accountability project, why don't you tell us a little bit about yourself and the work you did before you began this project?
Aliza Shatzman 2:49
Sure. So graduated from Williams College in 2013. And Washington University School of Law or WashU. In 2019. In turn for the Justice Department in four different offices during law school, I had aspired to become a homicide prosecutor in the DC US Attorney's Office, and so I wanted to get a breadth of experience. After law school I decided to clerk in DC superior court during the 2019 to 2020 term intending to launch my career as a homicide prosecutor. Unfortunately, during my clerkship, I experienced gender discrimination and harassments ultimately faced retaliation by the former judge for whom I clerked. While I was during basic training in the DC US Attorney's Office, I became aware of the judiciary Accountability Act legislation that would protect you to Cherie employees under Title Seven. While I was going through the judicial complaint process in July of 2021, I reached out to some House and Senate offices to share my story and advocate for the judiciary Accountability Act, or J. And then when a House Judiciary Subcommittee hearing happened in March 22, I was invited to submit a statement for the record advocating for the J and an amendment to cover the DC courts, which is where I clerked, and then I was working as a family law attorney at the time. In the weeks following my statements, I received a very positive response and began talking with my friend and now co founder Matt Goodman, about some ways to further that advocacy work. And then eventually the legal accountability project was born. And we officially launched on June 1 2022.
Jeff Lewis 4:23
Okay, great. And it's just a pet project. Is this a side gig? Or is this a full time project for you?
Aliza Shatzman 4:29
So this is my full time job. I quit my job in April to get this off the ground. This is what I'm doing full time. My co founder also quit his job to do this. And what makes us unique in this space is that we are the only nonprofit working on judicial accountability and clerkships issues full time and I'm the only founder in this space advocating based on my personal experience with harassment and retaliation by a former judge,
Tim Kowal 4:55
the only nonprofit dealing with judicial accountability you said judicial accountability and clerkships. Yes. Well, I assume we'll get into that a little bit deeper. But how is just generally how has problems or complaints by clerks been dealt with up until before now.
Aliza Shatzman 5:12
So law clerks rarely file complaints against judges because there's just this enormous power disparity between fresh out of law school clerks and often Senate confirmed often life tenured federal judges, it makes it enormously difficult to file a complaint. In the instances when complaints are filed. Those if you are a federal law clerk, you're complaining under the Judicial Conduct and Disability Act, that is a federal legislation by which a law clerk and attorney or a litigant can file a complaint against a judge. And so in the past, unfortunately, the vast majority of those complaints are dismissed. The other process by which a law clerk can attempt to seek summer dress is employee dispute resolution, or ADR. That's the internal complaint process for law clerks to seek reassignment to get away from their misbehaving judge. Unfortunately, that remedies for that process are limited. And that process is not standardized. So overall, they're not handled well. And law clerks. I mean, most of them are just suffering in silence, which is why I'm out here advocating for this issue and sharing my story. I think they need to be handled one better and two differently.
Tim Kowal 6:26
Right. Now, you mentioned that your experience was in the DC Superior Court, and and your advocacy for the legal accountability project is in Congress. And I wonder if you can explain a little bit more about the DC Superior Court where it fits in is it is it under the jurisdiction of Congress? How does all that work?
Aliza Shatzman 6:45
Sure. So the DC courts are Article One courts, that means they were created by Congress or their article one courts that folks have heard of our Court of Federal Claims, bankruptcy courts, tax courts. So the DC courts are regulated by Congress, as is the DC commission on judicial disabilities and tenure, the regulatory body for DC judges. DC courts are our local courts here in the District of Columbia. They hear cases on local issues, but they are regulated by Congress. And our judges are unique in that they are Senate confirmed for 15 year terms. So right now, the judiciary Accountability Act does not cover the DC courts. I'm advocating for an amendment to include the DC courts and other article one courts. Currently, one article one court is covered the Court of Federal Claims, but there are others that I believe should be covered tax courts, bankruptcy courts, and there is precedent for this. If you look at the ethics and Government Act, that covers the DC courts and other article one courts. If you look at the Judicial Conduct and Disability Act, which we mentioned a minute ago, that covers many Article One courts. So I think it's a no brainer to cover the DC courts under the J.
Tim Kowal 7:55
Yeah, why would they cover some federal courts but not all?
Aliza Shatzman 7:59
So in my conversations with congressional offices involved in J drafting, it seems to be primarily an oversight. But the DC courts are unique they are DC is local courts, and Congress is notoriously unwilling to further regulate the DC courts because they're considered a local issue. So it makes it politically challenging, especially to convince Democrats to further regulate the DC courts. I think this is an issue where further regulation is necessary. It's unclear right now whether the DC courts are protected under Title Seven of the Civil Rights Act. I've talked to fed court scholars who believe that the DC courts as an article one court are similarly exempt from Title Seven the way Article Three federal courts are exempt. So right now, DC courts law clerks similar to Article Three federal law clerks cannot sue judges under Title Seven of the Civil Rights Act and seek damages for harms done to their careers, reputations, future earning potential. So this is a niche issue that I'm trying to raise awareness of, and it's the subject of my law journal article with the UCLA Journal of gender and law.
Jeff Lewis 9:07
So it's a niche issue, but it's important let me ask you this. I took an unusual route to appellate law, in that I never clerked for a judge. I never had an externship. I never worked in chambers. Can you explain to our audience, kind of what your expectations were regarding the benefits of a clerkship and why you sought one out in the first place?
Aliza Shatzman 9:26
Absolutely. So for folks who haven't clerked, a clerkship is basically when a young attorney spends one or two years working for a judge, learning from them. It's typically fresh out of law school grads, although more and more judges are looking for folks with some work experience. So typically, what happens is law clerks tasks vary from chambers to chambers, but they handle research and writing. They go to court with the judge. They take notes, they assist them, they participate in judicial decision making which may It is enormously valuable for folks who want to go on to careers as prosecutors public defenders or in big law, and they also learn The Good, the Bad and the Ugly from the attorneys who appear before the court. So it is an enormously valuable learning experience. In the best of circumstances through a clerkship, a law clerk will develop a lifelong mentor mentee relationship with a judge and they the judge will help them in their career path. Unfortunately, in the worst of circumstances, which is what I'm trying to raise awareness of. It can be an enormously negative experience and a lifelong retaliatory negative relationship. Judges have enormous power over their former clerks lives, careers and reputations, and a judges reference can make or break a law clerks career, their next job and even a lukewarm reference is basically a statement that's this clerk might be unemployable in the future.
Tim Kowal 10:52
Can you think of a of an analogous industry where, where an employer will have as much influence as a judge will have over a clerk like, for example, congressional aides and staffers to do similar stories come out of there where I can imagine that maybe the relationship is somewhat similar is between a clerk and a judge.
Aliza Shatzman 11:14
So I don't think there's really any analogous workplace which is why it's so troubling. And so congressional staffers are protected under Title Seven of the civil rights act as our executive branch employees back in 1995, pursuant to two separate laws, these protections were extended. So while a congressional workspace is kind of similar in size, it's small a couple of staffers and a house office and a member of Congress, the member of Congress is accountable to the voters every two years or in the Senate every six years. They are not life tenured. I think it is the life tenure of judges or for judges, you have 10 or 15 year terms, if they're state court judges, the perception of life tenure, that makes it so enormously difficult.
Tim Kowal 12:00
Yeah. And that would be different in in Article One courts, though, at least there would be a little bit more room for accountability there. Is that Is that true?
Aliza Shatzman 12:09
Theoretically, maybe in practice? No, I can say in the DC superior courts. And actually, I mean, I've talked to lots of state court judges as well. They reach out we talk about these issues, I always ask what I'm missing in the conversation about judicial accountability. Even folks who have tenure terms, and then they're subject to reappointment or re election basically perceive themselves to have de facto life tenure because it's so difficult for them to be removed or not reelected. And then in the DC courts. The DC commission on judicial disabilities and tenure is the regulatory body for these judges. In the 52 year history of the commission in the DC courts, they have never disciplined or removed a judge for gender discrimination or harassment or retaliation. That is a red flag that these types of disciplinary processes are not working effectively.
Tim Kowal 12:58
Now Elisa before your clerkship in the DC, Superior Court, have you ever heard of judicial clerks or judicial employees complaining, harassment or misconduct, like the kind that you experienced?
Aliza Shatzman 13:11
So honestly, I really hadn't. I mean, I applied for clerkships in 2017 and 2018. I started my clerkship in August of 2019. And really, obviously, I experienced mistreatment. And that's when I became aware of it. And as I started confiding in clerks, I discovered that it was pretty pervasive in my courthouse and others, and it was really watching Olivia Warren testified before the House Judiciary Committee in February of 2020, that I became very aware of the scope of the problem. I knew vaguely the allegations made against former judge Alex Kaczynski back in 2017. But I think, unfortunately, before it happened to me, I wasn't fully aware of the scope of the problem.
Tim Kowal 13:55
I wonder if you could, if you give our audience a flavor of the kinds of allegations that you are hearing about the kinds of allegations that are being made by former judicial clerks that are that have driven you to deform the the, the Accountability Project?
Aliza Shatzman 14:11
Sure. So I since I've been speaking publicly, so a couple months now, I receive emails and other messages, LinkedIn messages, Twitter, DMS every day, from current and former clerks and state and federal courthouses across the country, sharing their stories telling me they couldn't speak publicly thanking me for what I'm doing. And the fact pattern is trouble me because while I can, I'm not going to go in detail about the range of allegations a lot of them fall in one similar fact pattern and it's my judge says that I am a poor performer and I am not dedicated to the clerkship, but he or she won't give specifics. And I hear that over and over. And what troubles me in addition to the fact that reminds me kind of my of my own experience, is that what I see In these stories is the breeding ground for a long term retaliatory negative relationship between these judges and their former clerks. As if harassment and mistreatment during one's clerkship were not devastatingly painful enough, the idea that a malicious judge would continue to give negative references to badmouth the former clerk and the legal community to get them barred from future jobs from their dream job. It's just I mean, it's despicable. And I really worry, as I hear these stories that not enough is being done. I mean, I've been heartened by the positive response to my story. And I'm told by judges every day, they understand the judiciary Accountability Act is not going away. But I'm really trying to underscore the scope of the problem, the pervasiveness of the problem. And also, people began to talk about these issues in 2017, when the Washington Post broke, because insky story, but that former judge had been harassing his clerks for decades. It just story broke in 2017. And we need to think about that people say to me, Well, I got engaged when I heard those stories. I'd said my changes, then, well, what about the decade's worth of clerks whose lives and careers were destroyed? In the past, we really can't only focus on these issues when there is a flashy hearing, or a flashy story in the Washington Post, this needs to stay in tension.
Jeff Lewis 16:27
Do you want to share any of the experiences that you had personally as much as you feel comfortable, that led you to form this project with your with your co founder?
Aliza Shatzman 16:37
Sure, I talk about this a lot. I'm happy to share my story. And I really feel like it's one of empowerment, I mean, I want to empower other clerks to speak out and file complaints and share their stories. So I'm happy to share mine. So I started my clerkship in August of 2019. And pretty much just weeks into the clerkship, my judge began to discriminate against me based on my gender, gender and harass me and just generally mistreat me, he would kick me out of the courtroom and tell me I made him uncomfortable. And he just felt more comfortable with my male co clerk told me I was aggressive and nasty and a disappointment. The day I found out that I passed the DC bar exam, he called me into his chambers gotten my face and told me you're bossy. And I know bossy because my wife is bossy. And it was just, I was just, it was just devastating. I mean, I remember crying in the courthouse bathroom, crying myself to sleep at night, I wanted to be reassigned to a different judge, but we didn't have an employee dispute resolution plan in place in my courthouse and 2019 that would have enabled a reassignment. So I tried to stick it out, because I desperately wanted to be a homicide at USAA and the DC US Attorney's Office, and I needed that year of experience. And I needed a reference from a judge. So we eventually transitioned to remote work. During the pandemic, I moved back to Philly to stay with my parents. And from mid March to late April, the judge basically ignored me. So they call me up in late April and told me he was entering my clerkship early because I made him uncomfortable and lacked respect for him. So he reached out to DC courts HR, and they told me there was nothing they could do because HR doesn't regulate judges, and that judges and law clerks have a unique relationship. And then they asked me didn't I know that I was an at will employee took me about a year to get back on my feet. after that. I connected with some other DC judges who directed me to the DC Commission where I ultimately file my complaints. So I drafted it, but I wanted to wait to file it till I had a new job because I feared the judge would retaliate against me. So I secured my dream job in the DC US Attorney's Office moved back to DC in July of 2021. And I was two weeks into training. When 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 a couple days later, an interview offer for a different position with USAA. I was also revoked based on the judge's same negative reference when I was two years out of law school and the judge just seemed to have such enormous power over my life, my career and my reputation.
Tim Kowal 19:15
Right. So this went beyond just being a negative personal experience. It turned into a negative professional experience.
Aliza Shatzman 19:22
Yes, yes. And that's one of the things Yeah, so long term like retaliatory relationship. The long term negative relationship is something I'm really trying to raise awareness as that it goes so far beyond just the Chamber's poor relationship with a judge. No,
Tim Kowal 19:36
I'm sure at some point, the judge your your former judges, other colleagues, judicial colleagues learned of these allegations and police their own and set them aside and had a good talking to right. The judges kind of discipline their own, don't they?
Aliza Shatzman 19:51
Oh, gosh. I wish judges are notoriously unwilling to discipline their own and in the DC courts, I mean bar associations do promulgate rules that kind of say judges should police their own if a judge becomes aware of colleagues misconduct or judges poor health that they are obligated to report on this, but my former judges colleagues protected him till the bitter end. And
Tim Kowal 20:18
how do you know that? You know, to the extent
Aliza Shatzman 20:20
I am aware of folks who spoke with the Commission during the investigation, and I can't comment too deeply on that, but I am aware, I'm aware that's his colleagues protected him, which I find particularly troubling. I've said publicly, there are judges on the bench in DC right now who have committed misconduct, there are judges on the bench who protected my misbehaving former supervisors misconduct until the bitter end for on the bench right now who have not been investigated. And I mean, what I've said to the DC commission since this time, and what I've said to the DC courts, to the extent they listen to my public statements is that by Miss handling these types of judicial complaints, the Commission and the courts chill future complaints by law clerks, against judges, because they get the message, don't bother coming forward, don't bother filing a complaint, your reputation will be destroyed and nothing will be done. And I just think that's enormous ly troubling. I share my story in the hopes it'll empower others to speak out. But as I as I do, I understand I'm talking about all these terrible things that happened to me and what our law clerks gonna think. I mean, are they going to be empowered? Are they just going to be fearful?
Jeff Lewis 21:31
Well, let me let me ask you on this point, let me say two things. First, let me just say as a, as an older lawyer, I'm so sorry, you went through this and that there wasn't a mechanism in place to to be there for you. So I'm just so sorry to hear about this. And let me ask, in addition to cataloging some of the horror stories of clerkships is part of your project going to do anything to memorialize or highlight happy and positive experiences by law clerks?
Aliza Shatzman 21:58
Definitely. So yes, the legal accountability project, we're working on a couple of fall initiatives. The first one is a centralized clerkships reporting database. And I think I should back up because I haven't really explained the process by which folks get clerkships right now there is no way for law clerks to know who the good judges are to apply to and who the misbehaving ones are to avoid unless they are through whisper networks of other former clerks reaching out to someone who's going to give them the full scoop, going to say this judges great absolutely apply to them, or this judge harasses this clerks never ever apply to them. So what I'm seeking to do is kind of combat those whisper networks and centralize the information. So our centralized clerkships reporting database will enable every former and current clerk from every law school to make a report about their clerkship, good, bad medium, we want to hear all of them. And every law student at every institution will be able to read the reports and know who they should apply to and who they should avoid. And we're working with law schools, because we want to capture the full scope, the good, the bad, the medium, we don't want to just put up a website and let people report randomly. Because what I know is that in those types of circumstances, we'll get the people with the terrible experiences some or the people who are raving about the judge, we want to get the full scope. But yes, absolutely. We want to get the good ones to tie.
Jeff Lewis 23:26
Yeah, I'll just say it's not just good and bad. There's other qualities of judges in terms of making a love connection between a judge and a clerk like judges that maybe would give a clerk more courtroom experience are more writing experience or is more close supervision as opposed to a hands off those kinds of qualities, right?
Aliza Shatzman 23:42
That's correct. Yes. And those are the types of questions we asked about in our survey database. We elucidate that kind of information as well. Yes.
Jeff Lewis 23:51
All right. And will I be able, as a member of the public to access this database and learn about all the stock stories behind a judge I'm about to appear in front
Tim Kowal 23:59
of as a lawyer. Yeah, I love the robing room. And you will not
Aliza Shatzman 24:03
not unless you decide to change your career and go clerk for a year. No. So the database will be accessible to former clerks who filed a report law students whose schools are participating in the database initiative and to law school administrators and Dean's to the extent they want to read the reports. It will not be publicly accessible. Judges will not be able to read the reports we anticipate that most law clerks will report anonymously and that is fine. And I am personally very sensitive to fears about reputational harm or retaliation, based on my personal experience, it's really just about centralizing and democratizing the information so that we stop seeing these really troubling silo effects whereby a couple of schools are hoarding information that they know about misbehaving judges, sometimes they warn students, sometimes they don't, but for the five or so that collects this information, it does nothing for the 1000s of law students who apply each year to clerkships and who are unwittingly walking into hostile work environments, just because their law school has decided not to maintain any sort of internal database. It has nothing to do with the ranking of the school. The geographic location is totally random, which schools are doing a good job of protecting their students, and which ones frankly, are doing a terrible job?
Jeff Lewis 25:21
And are you focusing on the East Coast? Are you going nationwide? What's the scope of this fall initiative in terms of your database?
Aliza Shatzman 25:28
We are going nationwide. Right now I'm talking to about 50 schools, and we're looking for 10 partners for our pilot program. And it's going to represent a variety of geographic locations, sound
Tim Kowal 25:40
or law schools willing to get involved here or is there are they worried about like an omerta code code of silence that if they start participating in this project, that they might get the cold shoulder there, or their students might get the cold shoulder when it comes to judicial clerkships.
Aliza Shatzman 25:56
So law schools have been very receptive to this project. And I think there are two reasons. The first is that they like that this takes the onus off them that it takes it out of their hands. If every clerk reports into a centralized database, the law schools don't need to judge the veracity of the reports. They don't need to weigh a positive and a negative report and decide, do we show students both? Do we show them neither? Do we warn them? Do we take this judge out of our database, they like that it's clerk to clerk reporting. So they are interested. And the other reason I think law schools are excited about this is because harassment in the judiciary and these long term retaliatory negative relationships we've talked about, drive young attorneys from the profession, either because they are blackballed from their jobs by judges who are giving retaliatory negative references, or they just feel so mistreated that they leave the law. That's a bad look for law schools to say we graduated 200 students, but two years later, this many are no longer practicing law. So law schools are excited. They are, you know, wanting to learn more information. And for the schools that are not ready to make changes. Now. We'll be circling back with them next year to try again. And I am going to be going to a lot of law schools in the fall traveling all over the country to share my story to talk about the legal accountability project and the work we're doing. And we're already seeing a real groundswell from law student groups. They are excited to talk about these issues. They want these resources and for the schools that haven't signed on to our initiatives are hoping that between law students, law school alumni and professors will really get at some of these recalcitrant administration's.
Jeff Lewis 27:39
So the creation of the database seems to be one of your your initiatives for project and to solve a problem in terms of clerks finding a good fit and avoiding a bad fit. Are there any other problems that you're seeking to tackle regarding with your project?
Aliza Shatzman 27:54
Yes, so our other big fall Initiative is a workplace assessment of the federal and state Judiciary's. So the federal judiciary has been notoriously unwilling to conduct a large scale workplace assessments and ours is going to elucidate data on the types of law clerks facing mistreatment, the true availability and accessibility of resources in their courthouses and their concerns about reporting either to the judiciary or to their law schools. What we see is that sometimes, Judiciary's conduct internal assessments, The Washington Post recently reported the DC Circuit conducted one last year, and that was for internal purposes that was not supposed to leak. What we saw from that survey is 57. Employees, law clerks and other judiciary employees experienced harassment and retaliation by judges, an additional 134 witnessed or heard about problematic behaviors. And that creates an enormous data mismatch between those data and what the federal judiciary leadership says probably, which is harassment is not pervasive in the federal courts. Well, that's false. I know that to be untrue. So we are planning to send our workplace assessment to the past 10 to 20 years of law clerk alumni at various institutions in the fall, we are confident that law schools maintain that contact information and we're asking them to send our survey, we're looking for a geographically diverse sample for a diverse sample in terms of the rankings of the schools. And we hope to finally quantify the scope of the problem of judicial misconduct, because I really feel like that is the first step toward crafting effective solutions. And this data has never been collected before. So stakeholders and nonprofits and advocacy orgs are very excited to see this data. And, you know, I'm working with folks across the spectrum, from the most conservative to the most liberal offices and organizations. I'm talking to lots of individual judges who think it's time to do this. And it's really just recalcitrant judiciary leadership that's just unwilling and so we're trying to pick up the slack.
Tim Kowal 29:53
So you said that the judiciary the federal judiciary leadership has been unwilling to do this assessment, but what what You But individual judges a little earlier, you said that the judges were not policing their own. But what about their enthusiasm? Or are they receptive to the legal accountability project?
Aliza Shatzman 30:10
They really are. And I mean, I think it's probably not a representative sample, because the judges who reach out to me or who agree to speak with me are probably the ones who are doing a good job. But I talk to state and federal judges every day they reach out to me I reach out to them talk about judicial accountability, the judiciary Accountability Act, and the legal accountability projects, initiatives. And the I've received a lot of support from what I'm doing. I mean, when I talk to state judges, or federal judges who were previously state court judges, they say, either I didn't even realize that I was exempt from Title Seven, or nothing about me change the day, I went from being a state to federal judge such that I should suddenly be exempt from Title Seven. So they are on board. And, you know, I think it's really, for judges who are doing the right thing right now, which is treating everyone with respect, they should support additional judicial accountability measures because they raise the bar for workplace civility, and this legislation will not really affect them at all day to day. It's the misbehaving judges or judiciary leadership, who seems to have something to hide, which is going to be affected by the new rules, and a judiciary wide commitment to enforcing the existing rules. Yeah.
Tim Kowal 31:21
Now, I hope this doesn't sound like a cheeky question. But I wanted to ask is, Is there something like a Harvey Weinstein problem going on here? I mean, I'm not such suggesting an equivalency, between the judiciary in Hollywood. But there does seem some, at some level, there's a similarity between, you know how surreal world Hollywood is, and also how surreal a world that the judiciary is the neither one is a normal profession, you know, normal people don't look at Hollywood and, and think, oh, you know, like, I can apply for a job there. It's kind of like a special place only special people go there. And similar thing for the judiciary, these are, these are special people, they kind of they kind of live and exist outside of a normal reality. And we're seeing, you know, your project is seeking to apply some of the normal rules that apply to normal workplaces to a special place. You know, as you said, there is no profession or industry that you can think of where the relationship between a judge and a clerk is quite the same or anywhere near it. Even even legislative aides are different because there's more accountability built in institutionally with with elected political leaders, as opposed to the judiciary, do you anticipate resistance kind of institutional resistance to trying to apply normal rules to something like a very special type of workplace?
Aliza Shatzman 32:40
So I think right now, it's only considered a special workplace because there's some issues in the legal community with deifying, judges and disbelieving law clerks, I really think of judges as employers, they are running workplace and they should be subject to workplace protections and workplace regulations like everyone else. Yeah, I think I don't think it's a unique workplace. I think it's a workplace particularly conducive to harassment due to the enormous power disparities, the exemption from Title Seven and the lack of enforcing workplace policies. But no, I don't think these are special workplaces at all.
Jeff Lewis 33:18
Let me let me ask you this. It's been widely reported, there's a court back east with nine justices. And it's been widely reported about a opinion that was leaked, and an investigation going on asking for law clerks for cell phones or cell phone data. And lots of hard questions are being asked back there. Did you have any thoughts about the dynamic that's going on back east in terms of those clerks and the Supreme Court justices?
Aliza Shatzman 33:41
Absolutely. Well, I think it's an enormous invasion of privacy to ask a law clerk for their cell phone records. So I should say that upfront, but I think more importantly, for my purposes, this issue highlights the enormous power disparity between a Supreme Court justice and his or her law clerks. When Justice asks you for your phone records, you are really not in a position to say now, that doesn't mean you shouldn't you shouldn't say no, and you should hire an attorney. But in terms of folks, I've spoken to just former SCOTUS clerks and other people off the record. They're very concerned about this enormous power disparity where they feel like they can't say no, so it's, this is an important case, because it's raising awareness of some of the issues I'm talking about. I'm just a heightened level. So
Jeff Lewis 34:27
yeah, I imagine if you hand your cell phone off to your mentor to somebody you trust, and there's nothing in there about a leaked draft, but there's all sorts of records in there or texts about something else controversial, perhaps you're gay, perhaps, you know, anything. There could be career lasting implications from handing that phone over. And, and I and I imagine that any of those law clerks that lawyer up might also face consequences just for lawyering up.
Aliza Shatzman 34:53
Absolutely. And I mean, if you're a supreme court clerk or you're a clerk anywhere you go in This clerkship hoping for a lifelong mentor relationship hoping for a positive reference. So yeah, if you were to not turn over your records, or if you were to turn them over and your judge found out something about you that was, you know, less than stellar or otherwise, you know, negative, that would have enormous damage to your career and reputation as well. I think it's just so important to highlight the enormous long term power that these judges and justices have over their clerks and former clerks careers.
Jeff Lewis 35:30
Yeah, it was on display. There was a J six hearing this week when you saw one former law clerk questioning from live national TV, his former mentor about the actions of another former law clerk, crazy lifelong relationships formed by these clerkships. Interesting.
Tim Kowal 35:50
I had Well speaking of the Supreme Court, and this is a little bit following up on my question about there being this there being kind of a special is, you know, is a is a judicial clerkship, a special type of workplace or you answered, it's not where it shouldn't be. But I want to follow up about the perception that it is. So talking about the Supreme Court, there's there's been reporting that former Supreme Court law clerks command, you know, enormous signing bonuses, $400,000 $450,000. And, and then similarly, there's, there's also reporting that, that over 80, former staffers of the Senate Majority Leader, Chuck Schumer's office are now working in big tech. And I don't imagine big tech is going to the hill looking for top coders. I don't think that's that's quite the skill set they expect to find there. There's, there's some other kinds of value that they have. And I wondered if in both cases, judicial clerks and and other people close to powerful people is maybe the the big value, or even the principal value of having these kinds of clerkships and legislative aide positions is the connections that they bring, at some level, the value of having an elite clerkship is that it shows you have these connections. And if I can get, for example, Neil Katyal, to put his name on my brief, do I care that he didn't write a word of it? Not a bit, I'm not going to pay Neil Katyal, you know, $2,500 an hour, which is apparently his going rate, because he's Marcel Proust, I'm paying because judges and law clerks are going to see Neil Katyal his name and realized this case is a big deal. And I'm going to look at these arguments with different eyes then. Benefits just just lowly Tim colwall. So most of us attorneys hocking wills and trusts and breach of contract complaints for a living, look at all that and say, Yeah, I give up a body part to be in this kind of Skull and Bones club, that how do you respond to that perspective that everyone knows, clerkships are not quite a normal job? They are? Not that, you know, I'm not suggesting that they shouldn't be, you know, I agree with you that they shouldn't be subjected that same same kind of harassment laws and rules. But judges, in a way are not normal employers, you don't get the you're getting a special kind of value for being a clerkship and you get the feeling that some people kind of take that approach that working for an elite government official, like judges is a special privilege. And maybe, maybe you should just suck it up. You ever you ever encountered that kind of resistance?
Aliza Shatzman 38:17
I do occasionally. I think it's more that I see it bubbling up on Twitter, I'm not sure anybody's willing to say it to my face, knowing what they know about my personal experience. But I think some people certainly feel that way. And I should say, in terms of sharing my story, I've received wider support from male attorneys and from female attorneys. I think the perception among some female attorneys, particularly government attorneys, as is we experienced it, and we got through it, why can't you? So I think that is a terrible attitude. I think we are seeking to change workplace culture and nobody going into a job shouldn't be subjecting themselves to harassment, discrimination, retaliation, it might be a privilege to work for a judge, but that doesn't mean you should ever be mistreated in the workplace.
Tim Kowal 39:08
Yeah, and I agree with you, but that I just wanted to set up that question, because I wondered if there's that perspective there because it is it does strike me as such an unusual, unusual workplace. And I just, I think it's it's it's a struggle, and I'm glad you're you're taking up that struggle and trying to apply some of our basic, you know, basic rules of decency in in that kind of surreal workplace.
Aliza Shatzman 39:32
I really think that we should think about judges more as employers, and that when we get down to it with the judicial appointments process, we should be thinking about them more as employers than as judicial decision makers. I mean, this is a bipartisan issue. both Democratic and Republican judicial appointees mistreat their clerks and both conservative and liberal clerks face harassment and retaliation. We should really be thinking about who is going to be a good employer who's going to treat everyone And with respect, regardless of your judicial philosophy, I mean, I care less about any one individual ruling than I do about how these judges are treating their clerks, how they're treating the next generation of young attorneys. And I think we should be thinking about that a lot more. I mean, you think
Tim Kowal 40:15
that that attorneys and even the public at large valorizes judges too much?
Aliza Shatzman 40:21
Absolutely. There is an enormous problem with deifying. These judges treating them as if they can do no wrong. And it it starts in law schools, which is one of the many reasons why I'm trying to tackle this problem with law schools is because we are taught from day one that judges can do no wrong. I mean, it's everything from the way clerkships are talked about as this checkbox you need for your first job, so many panels starting one L year on clerkships bringing all these judges to campus maintaining these close relationships, judges and law schools and professors. Yes, there's an enormous problem with deifying, judges and disbelieving law clerks. And that's why larger cultural change in the legal community is necessary and why, you know, legislation can't fix everything. And this is one of the reasons why I think it's so important to share my story. And I feel like it resonates with a lot of people, which is a helpful start, but I really need them to understand that my story is not rare. Even if you think it's particularly outrageous. It's not this is happening in courthouses every day. And if you are not encouraging law clerks to bring their full selves to work, if you are telling them to be silent in the face of mistreatment, you're really part of the problem at this point.
Tim Kowal 41:34
So at least if attorneys listening right now are interested in getting involved either in the legal accountability project or in addressing some of the other pieces of the puzzle to bring more accountability to judges as employers, what what can they do?
Aliza Shatzman 41:48
Yeah, so they can learn more information on our website. That's legal accountability project.org they can sign up for more information they can donate. Those are both helpful. If you are an attorney, who is a obviously you're a Law School alum, um, you should reach out to your law school and see are you planning to participate in the clerkships database? Are you planning to send out the workplace culture assessment, we really need buy in from alums. And I think the other thing that's important is, the legal community is always looking for more attorneys to represent law clerks pro bono when they're going through the employee dispute resolution process when they are filing formal complaints when they are trying to seek judicial accountability. So if you're moved by my story, and you are an employment attorney, I hope you'll consider reaching out to me, I can connect you with law clerks currently seeking attorneys who can help and part of our long term goal probably our three year plan at the legal accountability project is to create an employment attorney database to connect employment attorneys with mistreated clerks seeking help.
Jeff Lewis 42:51
Well, hey, I want to thank you for standing up for those who are in such a power disparity that they can't stand up for themselves. And I want to thank you for appearing on our podcast today. It's been really, really informative. So thank you.
Aliza Shatzman 43:05
Thanks for having me on the show.
Jeff Lewis 43:07
Yeah, I think that that wraps up this episode. Tim,
Tim Kowal 43:10
right. If you have suggestions for future episodes, we always welcome tips for topics to talk about and guest to bring on the show, please email us at info at cow podcast.com. And look in our upcoming episodes for more tips on how to lay the groundwork for an appeal and more insights into the lives of lawyers and judges.
Jeff Lewis 43:30
And we do want to do one more thank you to case techs for sponsoring the podcast each week, we include links to the cases we discussed using case texts and listeners of the podcast can find a 25% discount available to them if they sign up a case text.com/ca LP
Tim Kowal 43:45
C. So you really got me with his role reversal today, Jeff. All right. Thanks for listening. See you next time.
You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases the news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at ca l podcast.com. That's c a l podcast.com. Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at email@example.com or (714) 641-1232.
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