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

The saga at the Federal Circuit continues. On July 31, 2023, a three-judge panel of the Federal Circuit Judicial Council issued a more than 300-page sanctions order in the controversy surrounding 96-year-old Judge Pauline Newman, who has been refusing to participate meaningfully into a disability inquiry into her judicial fitness. The panel has ordered that no new cases be assigned to Judge Newman for one year, or until such time as she participates in the inquiry into her health and conduct. 

This sanctions order leaves much to be desired (including the fact that, because Judge Newman has life tenure, this is the best the federal judiciary can do in the realm of judicial discipline right now). The panel indicates that no new cases will be assigned to Judge Newman for one year. But what about her existing cases? Have those all been reassigned and resolved? One of the issues that precipitated this inquiry was evidence of substantial delays on Judge Newman’s calendar: she took longer than her colleagues to resolve cases and issue orders and opinions, even though she handled a comparatively smaller caseload. The litigants who were substantially harmed by those delays – including pro se litigants – do not get a do-over just because the judge handling their cases may no longer be fit to serve. 

Additionally, will Judge Newman continue to collect a paycheck? And importantly, will she continue to supervise law clerks, judicial assistants, and other court staff?

One aspect of Judge Newman’s conduct that is robustly documented in this report – an issue I take particularly seriously – involves her inability to manage court staff, including law clerks and judicial assistants. Apparently, one of her 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 non-work-related matters. During one 3am phone call, the law clerk requested a 6am wake-up call. (This permanent clerk allegedly handles numerous non-judicial tasks for Judge Newman, including her grocery shopping and driving her to doctors’ appointments.)

The JA first raised this with Judge Newman, who refused to do anything about it, 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 dispute resolution plan. The Chief Judge intervened, moving the JA to a workstation outside of Judge Newman’s chambers in order to create some physical distance. Judge 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. 

The JA alleged that Judge Newman was retaliating against him, including by telling other courthouse employees that he “could not be trusted.” Judge Newman then allegedly violated the confidentiality provision of the EDR Plan by sending a group email to 95 courthouse employees, complaining about this matter and identifying the JA by name. The JA ultimately resigned and indicated that he wished to have no further contact with the judge: however, she later claimed that she had not released him. 

Additionally, one of Judge Newman’s other law clerks objected to working on matters related to Judge Newman’s personal disability defense, conveying that it was taking a toll on his mental health. He requested reassignment to another chambers. He also expressed discomfort at Judge Newman’s characterization of his former colleague, the JA, as untrustworthy. Judge Newman responded with an ultimatum: stay or resign. He ultimately resigned. 

These chambers’ managerial issues ultimately reflect poorly on Judge Newman. While the permanent clerk should not have been contacting the JA in the middle of the night, it is Judge Newman’s responsibility, as the employer, to set the tone in chambers and respond to issues that arise. Our current decentralized system of federal judiciary workplaces – designating the judge as hiring manager, EEO/HR coordinator, and DEI director – is not ideal. But it is the system we have, and too many judges are poor managers. 

I hear regularly from law clerks who are mistreated by a chambers or courthouse colleague – a fellow clerk, JA, or courtroom clerk – who raised this with the judges they clerked for, who did nothing. Judges have an obligation to make the workplace hospitable for 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. If the judge wants chambers to run efficiently, they must not only hire a group of clerks who they hope will get along well; they must also work to foster positive chambers culture. Judges are not just interpreting the laws: they are managers running small government workplaces, with all the inherent fallibilities this entails.

As if Judge Newman’s refusal to participate in the disability inquiry were not outrageous enough; and as if the allegations that Judge Newman may be no longer fit to exercise her judicial duties were not troubling enough; Judge Newman’s conduct also evidences a much larger issue in the federal judiciary. Not every good jurist is a good manager. Yet judges are tasked with running small workplaces: between two and four fresh-out-of-law-school clerks and a judicial assistant spend a few years work closely with a powerful, life-tenured judge for long hours behind locked doors in stressful circumstances. As the facts in this case make clear, there is disturbingly little that judiciary leadership has done to correct judges’ poor management style. 

What does good management style look like? Every judge is different, and no one is arguing that chambers should be micromanaged. Some judges spend more time with their clerks than others. Some convey feedback verbally; others prefer to do so via email. Unfortunately, due to the lack of transparency in clerkship hiring, prospective clerks (and JAs) often know disturbingly little about judges as managers when they apply for and accept these particularly consequential first jobs. 

Judiciary leadership must do better. 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, the Chief Judge should have at least monthly, if not more frequent, meetings with judges to review their management of clerks.

Another issue I am routinely asked about is feedback for judges. Due to law clerks’ fears of retaliation and reputational harm, this is challenging. However, Chief Judges could schedule meetings – or offer 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 good bosses and, ideally, mentors. Chambers cannot be managed efficiently – and orders and opinions crafted effectively – when the judge is a poor manager. Imagine how much more effectively our judiciary could resolve court business if every judge also understood how to supervise employees.

 


Aliza Shatzman is the President and Founder of The Legal Accountability Project (LAP), a nonprofit aimed at ensuring that law clerks have positive clerkship experiences while extending support and resources to those who do not. Aliza earned her JD from Washington University School of Law in St. Louis, MO in 2019. Aliza regularly writes and speaks about judicial accountability. She has been published in numerous forums, including the Harvard Journal on Legislation, Yale Law & Policy Review, UCLA Journal of Gender & Law, NYU Journal of Legislation & Public Policy, Administrative Law Review, Above The Law, Law360, Slate, Ms. Magazine, and Balls & Strikes. Reach out to Aliza at [email protected] to learn more about LAP’s efforts to transform the clerkship application process–and the legal profession–for the next generation of attorneys.