I hadn’t planned to comment on the controversy regarding Fifth Circuit Judge Kyle Duncan, who was shouted down a few weeks ago at Stanford Law School (SLS) during a campus event. Partially because I work with judges and stakeholders across the political spectrum. Partially because the situation received disproportionate coverage, compared to the many instances of judicial misconduct that receive no media attention.  

By now, it seems like much of the legal community has weighed in. When several judges made troubling statements about law clerk hiring moratoria, my ears perked up. I listened to the first few minutes of the event recording. The students’ tone was perhaps less than respectful. But that’s okay. They were rightly outraged by perceived attacks from the bench on their identities. 

This controversy raised two larger issues that I think about a lot. First, the legal community should support, rather than discourage, student advocacy, if we truly want to empower the next generation of legal thinkers and leaders. Second, attorneys should speak out against judicial misconduct more regularly, if we want to improve the profession.   

Since I launched The Legal Accountability Project, I have been heartened by law student advocacy to convince law school administrations to partner with us on our Centralized Clerkships Database. Law students demanding change will power the movement toward increased transparency and equity in the clerkship application process, as well as increased diversity in the clerkship pipeline—and legal profession. 

I enjoy following student leaders’ advocacy on other issues as well. I worry that this culture of advocacy – pushing for transformational change and a fairer, more diverse, more equitable profession – is discouraged by some professors and administrators, who send the message to students that the right professional decision is to stay silent in the face of injustice; and that to rock the boat by speaking out would threaten their job prospects. 

Students should feel empowered to speak out on issues of importance. They should not worry that their advocacy – perhaps the reason many of them chose to attend law school – will preclude them from a prestigious clerkship, law firm, or government position. 

Perhaps the SLS students’ tone could have been more respectful. But I understand why they chose the route they did. I appreciate their advocacy on behalf of themselves and other marginalized identities. 

Federal judges are public figures. They enjoy numerous benefits – high salaries, public recognition, prestige, life tenure. They should be forced to confront tough questions – even about their rulings – considering the enormous impact their decisions have on litigants’ and the public’s lives and liberty. For those to whom we entrust much responsibility, much is expected of them. At a minimum, judges should respond respectfully to students, even in the face of disrespect. They make challenging decisions every day: they should be able to handle an hour’s worth of tough questions. 

I also noticed how many attorneys and aspiring attorneys waded into the public discussion about this incident. I worry that the attention paid to some students taking on a federal judge on a law school campus was disproportionate to, for example, the March 2022 House Judiciary subcommittee hearing, where multiple law clerks and public defenders shared experiences with judicial misconduct, a hearing that received insufficient media coverage. If attorneys are going to weigh on judicial accountability issues – and they should – they should do it more often. The legal community’s general silence, in addition to deifying judges, does a disservice to law clerks who have experienced mistreatment. It makes them feel alone. This relates to my larger frustration that judicial accountability and judicial misconduct only receive media attention when there’s a flashy congressional hearing, rather than the sustained and necessary attention these issues need in order to accomplish urgent reforms like the Judiciary Accountability Act, legislation that would extend Title VII protections to judiciary employees. 

It is time for more attorneys – as well as non-attorneys – to get engaged on these issues. The lack of accountability for judges behaving badly affects everyone, whether you clerked or not, whether you regularly appear before judges or not. It has larger implications for fairness in judicial decision-making and litigants’ perception that they will receive a fair shake when they appear before the court.  

Yes, judges behave badly. I am more acutely aware of this than most people. But we should support those speaking out on this issue. And we should not limit discussion about judicial misconduct to incidents that garner flashy headlines.