But those relationships develop in a workplace with an unusually lopsided power imbalance: Federal judges are appointed for life, they generally had storied careers before they joined the bench, and their reputations and networks make them incredibly important references for the rest of your career. If you have a good relationship with your judge, as I did with both judges for whom I clerked, they become some of the most important professional relationships in your life.
But if your judge calls you into his chambers, shows you pornography and asks whether it turns you on, as the novelist Heidi Bond says Judge Kozinski did to her, there is really nowhere to go for help.
That’s because misconduct allegations are handled by a judge’s peers. A law clerk could file a complaint with a chief judge, who could then appoint a committee or refer the complaint to another circuit to see whether the allegations are true. Something similar happened when the judicial council of the Third Circuit reprimanded Judge Kozinski in 2008 for posting inappropriate content on a family server.
It troubles me that law students may have walked totally unsuspecting into a similar situation. One reason is the code of conduct for judiciary employees instructs them to “never disclose any confidential information received in the course of official duties.” Even if you consider personal misconduct by a judge outside that directive, or if a former clerk would be willing to give a vague warning against a judge, only people plugged into an elite group of former clerks would have access to that information.
I was plugged into such networks, and there were a few sources of information available to me. For example, Yale Law School maintains a database of surveys from clerks that its students can use. I remember reading about judges’ working styles. But I don’t remember any warnings about judges that might show a clerk pornography.
I also don’t know whether my professors knew of the rumors swirling about Judge Kozinski. Even if such rumors had reached New Haven, there was a strong incentive to continue sending graduates to his chambers. Judge Kozinski is a brilliant jurist, known as one of the most prolific “feeder” judges, ones who send clerks to a second clerkship for a Supreme Court justice. I used a dissent he wrote in a well-known sex-discrimination case in my class a few weeks ago. Plenty of my classmates at Yale dreamed of clerking for him, and Yale is understandably eager to highlight graduates who do.
So what to do?
Some professors have suggested that they may refuse to write letters of recommendation for female students applying to clerk in his chamber. But that would leave the achievement as one only for male students. Sex segregation won’t solve the scourge of sexual harassment.
Law schools must do more for their students. Students who hope to clerk should be given an unvarnished account, from multiple sources, about the positive and negative attributes of clerkships. Law schools should encourage recent clerks to be candid about their experiences and should pool information from other schools if necessary to protect respondents’ anonymity.
If there are credible reports that a judge’s chambers are not safe for our graduates, professors should band together, refuse to send our students to that judge and publicly explain why. At its best, the legal system protects people from abuse. It is long past time to stop being complicit in enabling it in our own ranks.