Sex, Lies, And Inadequate Supervision Of Law Clerks
The salacious allegations against Judge Eleanor Ross have overshadowed a more important issue: judges delegating too much responsibility to their clerks.
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Portions of this article originally appeared on Bloomberg Law, part of Bloomberg Industry Group, Inc. (800-372-1033), and are reproduced here with permission. The footnotes—which contain material that didn’t appear in my Bloomberg Law column, including inside baseball about the federal judiciary and gossip about Judge Ross that will appeal to anyone nostalgic for Underneath Their Robes (which I launched 22 years ago tomorrow)—are bonus content for Original Jurisdiction subscribers.
For the past two weeks, the legal world has been buzzing about Judge Eleanor Ross (N.D. Ga.), a federal trial judge in Atlanta since 2014. The Eleventh Circuit Judicial Council found that she engaged in an extramarital affair with a law enforcement officer that involved having sex in chambers during work hours, within hearing distance of her clerks—and that she initially lied about it when confronted.1
In my opinion, Ross should resign—and if she doesn’t, she should be impeached.2 But aside from the sex and lies, other allegations in the report of the special committee that investigated her raise important questions for the federal judiciary as a whole.
Do federal judges delegate too much responsibility to their law clerks? Are judges failing to adequately supervise their clerks as they discharge their duties? If so, what implications does this have for the judiciary?3
Six former clerks spoke with the committee about Ross, who wasn’t named in the report but whose identity was first reported by Bloomberg Law. They explained that as a former state and federal prosecutor, she handled the criminal docket herself. She relied on her clerks to deal with her civil cases—with minimal supervision, it seems.4
Her former clerks told the committee she “rarely, if ever, substantively edited civil orders the clerks drafted.” They claimed they “were generally unaware” as to whether she reviewed pleadings or draft civil orders. On multiple occasions, she “emailed the clerk to docket an order within a few minutes of receiving it,” suggesting that she might not have read it. Perhaps most troublingly, “it was generally understood” that she “did not wish to discuss substantive civil-case-related issues with clerks.”5
This didn’t sit well with Ross’s clerks. Several of them said that “given their inexperience, they were uncomfortable with the level of discretion they appeared to exercise in handling civil cases.”
The committee cleared Ross of possible misconduct in the supervision and treatment of her clerks.6 Although the committee wrote that it was “troubled by the law clerks’ assertion that the Subject Judge is not engaged in the resolution of civil cases,” it was satisfied by Ross’s commitment to be more engaged in civil cases and more open to substantive discussions with her clerks in the future.
The committee let Ross off too easily. And I can’t help wondering whether it did so because it didn’t want to address possible judicial overreliance on law clerks—a more serious and widespread issue for the judiciary writ large than having sex in chambers and lying about it.
“[M]ost judges let their law clerks do far too much,” wrote Josh Blackman, a professor at the South Texas College of Law Houston and former clerk. “The public might be appalled that a life-tenured judge has delegated to a twenty-something law clerk the unchecked power to decide complex and impactful cases. But for anyone who has spent time in chambers, this sort of behavior is far too common.”
It’s hard to tell how prevalent this is, especially because of the confidentiality surrounding judicial clerkships. But based on interviews I conducted with former clerks, it’s fair to say Ross isn’t the only judge who’s overdelegating to clerks.
I spoke with one former clerk who completed three clerkships. Over the course of three-plus years, he could recall only one occasion when his judge overruled his recommended disposition of a motion. And in two of his three clerkships, his judges barely edited his work—meaning the clerk was effectively controlling the final outcomes of cases and the legal reasoning used to reach them.
I have no reason to think this former clerk, now a Biglaw partner, wasn’t an excellent clerk. But I find it hard to believe his work product was so perfect that it couldn’t have benefited from closer scrutiny, and he agreed. He confessed to discomfort with the autonomy he had as a clerk—especially in the first few months of his first clerkship, when he was “fresh out of law school and didn’t know my head from my ass.”
“As newly minted lawyers, clerks don’t always have great judgment,” said Tracey George, a law professor at Vanderbilt University. “Many clerks arrive in chambers with no prior legal experience other than law school. More experienced lawyers are more likely to be able to distinguish between meritorious and non-meritorious arguments.”
Or as the clerk-turned-partner told me, “Making final judgments, with an understanding of how they would affect the parties, isn’t something baby lawyers are good at. Mistakes can be made.”
And mistakes are made. Blackman recalled one case from his clerkship, a complex commercial dispute, in which he “screwed up, big time.” He recommended resolving a novel legal issue in deciding a motion for summary judgment—but the issue had been waived, which the losing party’s lawyers flagged in a motion for reconsideration. (The judge subsequently had Blackman revise the opinion to omit discussion of the issue.)
But even if some judges delegate too much, solving this problem would be challenging. For starters, judges themselves probably can’t agree on whether there’s a problem or, if so, its extent.
“It’s very hard to say what clerks are entitled to in terms of supervision, guidance, and mentorship,” said Mitu Gulati, a law professor at the University of Virginia and co-author, with Tracey George of Vanderbilt and Albert Yoon of the University of Toronto, of a new paper about clerkships. “To declare that there’s overdelegation, you need a baseline of optimal delegation—and based on our having interviewed around 150 judges at different levels of the federal judiciary, it’s really hard to figure out the baseline.”
And even if one could figure out a baseline, enforcing it would be difficult if not impossible. Federal judges enjoy incredible latitude in how they operate their chambers. And they have life tenure, which protects judicial independence but also complicates any attempt to regulate how they go about their jobs.
“Federal judges are like tenured faculty in their level of autonomy,” Yoon said. “We’re required to research and teach, but we have a ton of discretion in how we go about it—there’s such a wide berth.”7
Don’t get me wrong.8 Based on the interviews I conducted, my many years of reporting and writing about the judiciary, and my own (admittedly dated) experience as a law clerk, I believe the vast majority of federal judges supervise their law clerks appropriately. But we should still be concerned about judges who don’t—and shouldn’t miss the opportunity presented by L’affaire Ross to talk about how judges work with their clerks.
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After Chief Judge William “Bill” Pryor (11th Cir.) sent a letter to Ross outlining the allegations made against her in a judicial misconduct complaint, Ross responded by calling the claims “outrageous” and “baseless.” She also emailed Chief Judge Leigh Martin May (N.D. Ga.), claiming she had “no idea” what the allegations referred to and describing herself as “astounded and confused” by them. (As I’ve previously opined, in OJ and on Advisory Opinions, this lying to fellow judges is worse than the sex in chambers—but, to be clear, the sex in chambers is plenty bad.)
As of this writing, Ross has not resigned—and I’m not sure she will. According to a former Northern District of Georgia clerk who now practices in Atlanta and has appeared before Ross as a lawyer, “She loves the power and prestige of that office—even if she doesn’t give a s**t about the work.”
Given the scandal surrounding Ross, I can’t imagine many law firms being eager to hire her. Her best bet might be to return to the Fulton County District Attorney’s Office, where she worked before taking the bench—and where she has a friend in DA Fani Willis, who can’t judge Ross too harshly given her own issues mixing work and personal life. (The conduct committee found that in addition to having sex in chambers and lying about it, Ross committed misconduct by attending a partisan political event—a victory party for Willis.)
Regarding impeachment, House Judiciary Chairman Jim Jordan (R-Ohio) said on Wednesday that his staff had already prepared a memo about the Ross situation, and “everything’s on the table.” Meanwhile, Representative Hank Johnson (D-Ga.), the top Democrat on the Judiciary Committee’s courts panel—whose district includes the Atlanta suburbs—said he’s “able to live” with the Eleventh Circuit’s penalty against Ross, a private reprimand (which was widely criticized as overly lenient).
Georgia’s two Democratic senators, Jon Ossoff and Raphael Warnock, haven’t commented on Ross. I’m especially interested in the views of Ossoff, who sits on the Senate Judiciary Committee (and I’m not alone in my curiosity).
As egregious as Ross’s misconduct was, she has competition for Most Scandalous Judge in the History of the Northern District of Georgia. Back in 2010, then-judge Jack Camp was arrested by the FBI and hit with federal drug and firearms charges, arising out of his buying illegal drugs for a stripper with whom he was having an affair (and paying for sex). He pleaded guilty to a felony charge of aiding and abetting a felon’s possession of a controlled substance (the stripper had a criminal record), and he served a brief prison sentence. He did have the decency to step down from the bench—sparing us from hearing testimony at impeachment hearings from the stripper, who was cooperating with the FBI.
I believe the problem of overdelegation is most serious at the district-court level, for two reasons. First, because the caseloads of district judges are so much heavier than those of circuit judges or Supreme Court justices, overdelegation is more likely—and, I’m guessing, far more common—in the district courts.
Second, because each district judge works independently, mistakes made by inexperienced clerks who have been given excessive responsibility are less likely to be caught. In a circuit court or SCOTUS, errors made by a clerk that don’t get noticed by that clerk’s boss must also make it past other judges or justices (and their own clerks).
Currently, district judges can hire two or three clerks, circuit judges three or four, and Supreme Court justices four. (Judges have discretion to use one slot for an administrative assistant or a law clerk—hence the range—but in practice, most opt for the clerk, and rightly so.) Because district judges carry such heavy caseloads, I agree with Richard Posner’s proposal—made in his excellent book, Reflections on Judging—that they should probably have four clerks.
It’s not uncommon for district judges, especially former prosecutors like Ross, to handle their criminal dockets with little or no clerk assistance. And it’s certainly the case that district-court clerks spend much more of their time on civil matters. Why is that? For starters, civil cases far outnumber criminal ones, accounting for roughly 80 percent of district-court dockets. Civil cases also tend to involve more motion practice, including motions to dismiss and motions for summary judgment; often have larger records than criminal cases (and the discovery fights that go with them); and cover a wider range of substantive areas of law, including some that might be new or unfamiliar to the judge.
Ross’s clerks also told the committee that “when assigning a clerk to work on a substantive civil motion, [she] did not indicate to the clerk how the judge was inclined to rule on the motion or otherwise provide any direction.” In her defense, Ross “stated that the practice of closely reviewing draft orders after they are written has proven to be the most efficient means of handling the large volume of cases assigned.”
Based on the interviews I conducted for this piece, as well as other conversations I’ve had with clerks over the years, my sense is that many or even most district judges take Ross’s approach—i.e., they don’t tell their clerks in advance how a given motion should be decided. As Ross suggested, the heavy caseloads of district judges might not give them enough time to study a case closely on the front end, to a point where they’re comfortable dictating the outcome of a motion, and to scrutinize the case closely on the back end, by reviewing and editing a draft order or opinion.
But I do think clerks should feel free to seek guidance from their judges throughout the process—at the front end, if they’d like insight into what to focus on as they go through a case, or at any other point along the way, maybe if they’re struggling with a tough issue. For clerks to believe that their judge “did not wish to discuss substantive civil-case-related issues,” as Ross’s clerks claimed, is unacceptable.
I interviewed one former clerk (to a judge other than Ross) whose work was edited very little over the course of multiple clerkships. But even this clerk felt that he could always go to his judges for advice: “They were always available to discuss issues; the door was never closed.”
The committee report contains suggestions that Ross mistreated her clerks in other ways (besides subjecting them to the sounds of her noisy sex). In his initial letter to Ross, Chief Judge Pryor asked her to address claims that she “yelled, cursed, and engaged in abusive conduct toward [her] staff on more than one occasion.”
For example, one of Ross’s ex-clerks described an encounter in which the judge used profanity toward a clerk she had dressed down for repeated tardiness and excessive phone use during work hours, telling that clerk, “You can call me mean; you can call me a [expletive]; I don’t care.” Ross apologized the next day, and according to the committee, “no clerk described conduct which could, by any measure, be characterized as abusive.” But the Ross chambers doesn’t sound like a fun place to work: one clerk said it had an “eggshell culture,” and another said that clerks were told to “tread lightly” around the judge.
Ross’s poor treatment of clerks was an open secret around the Russell Federal Building. I interviewed a former clerk in the Northern District of Georgia who clerked there before the events described in the report, and according to this source, Ross “already had a reputation in the clerk community as being a nightmare to work for. I’ve known a few of Ross’s clerks over the years, and I’ve never met a single one that liked her.” Ross apparently wasn't popular among non-clerk staff or fellow judges either; as the former clerk put it, “Based on what I heard around the courthouse, I don’t know that the feelings about her were limited to clerks.” (When a public figure gets caught up in controversy, supporters sometimes come forward to defend her; with Ross, at least thus far… crickets.)
Once again, it’s not just Judge Ross: mistreatment of clerks is a serious problem for the federal judiciary more broadly. During the course of my reporting, I spoke with clerks who were subjected to abusive treatment by their judges or who knew about clerks to other judges who were treated terribly. Mistreatment of clerks is a distinct issue that’s too big to tackle here, but I’ve covered it in the past—e.g., Who’s The Judge With An ‘Overly Harsh’ Management Style? (reporting on a Second Circuit judge accused of abusive and harassing behavior toward her clerks)—and I’ll continue to cover it in the future.
If you’re concerned about the mistreatment of clerks, follow the work of Aliza Shatzman and her Legal Accountability Project, a nonprofit whose mission is “to ensure that law clerks have positive clerkship experiences, while extending support and resources to those who do not.” You can learn more about LAP from its website or my podcast interview of Shatzman.
“Judges talk to each other surprisingly little about how to run their chambers,” said Tracey George of Vanderbilt. “There’s little to no regulation of how judges manage their staff—which is striking, given the overall increase in professionalization of the judiciary over the years.” (According to Shatzman of the Legal Accountability Project, this lack of oversight has contributed to the problem of judges mistreating their clerks.)
I’ve made the case for taking overdelegation seriously—but in fairness, several factors mitigate the concern, at least to some degree.
First, several of the district-court clerks I interviewed made the point that the vast majority of cases they handled were quite straightforward, with a clear outcome. As one ex-clerk told me, “Ninety percent of cases decide themselves, and only 10% are judgment calls.” So even if young and inexperienced law clerks are playing major roles in resolving many cases, that doesn’t mean these cases are all being decided incorrectly. As Tracey George put it, “Much of the workload in the district courts is ministerial; not all cases require legal talent of a federal judge’s caliber.”
Second, even if clerks might be inexperienced, they aren’t slouches. Federal clerkships are coveted positions, filled after a highly competitive selection process, and clerks are generally intelligent and diligent—so even in complex cases, they often reach the correct result. And as several of them told me, being given so much responsibility led them to take their duties more seriously and work harder as a result.
Third, many judges have clerks who serve for longer than a year or two, so-called “career clerks.” Some of these career clerks become quite experienced over time, with this experience presumably strengthening their judgment. (Ross herself has a career clerk.)
Fourth, losing parties in district court have the right to appeal. So let’s say a poorly supervised law clerk makes an error that does get reflected in the disposition of a case. In many situations, that error can be fixed on appeal—especially in a civil case about money.
In criminal cases, errors can be more serious because defendants might be unjustly deprived of their liberty during the course of appellate proceedings. But remember that an estimated 98% of federal criminal cases are resolved with plea agreements, and many of those cases are not appealed. Also recall that many judges, including Judge Ross, handle much or all of their criminal work on their own—so even if mistakes are made, at least they’re being made by Article III judges rather than twenty-something clerks.
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Greetings! I am not yet a law student, so this content is fascinating to me, especially dynamics between clerking at different levels of the judiciary. Out of curiosity, is it standard for law graduates to start off with a district court clerkship first, followed by a clerkship with a court of appeals judge or higher? Or is the order sometimes reversed? I'm curious about this because of how you describe the workload and autonomy that district judges have, vs working at the court of appeals.
Any Judge who delegates so much to inexperienced clerks can be assumed to use AI extensively on the work he/she purportedly does himself/herself.