Who’s The Judge With An ‘Overly Harsh’ Management Style?

The answer to this question has been an open secret among legal elites for months.

‘That was overly harsh, Tai” (screenshot from Clueless).

Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here. Thanks!

This coming Monday, June 10, marks the first day when current law students can apply for federal judicial clerkships under the Law Clerk Hiring Plan. To everyone applying, good luck—and take care.

I had a wonderful experience clerking for Judge Diarmuid F. O’Scannlain (9th Cir.), and over the years, I’ve met numerous former clerks who also loved their clerkships. In addition to enhancing your résumé, a clerkship can be a great learning opportunity, and many judges become lifelong mentors to their clerks.

Unfortunately, not all law clerks have positive experiences. And those of us who extol the virtues of clerking—perhaps to the point of glamorizing, glorifying, or fetishizing clerkships—have a duty to report on situations when clerks have bad experiences. See, for example, my prior reporting on what it’s like to clerk for Judge Aileen Cannon (S.D. Fla.), including how two clerks quit on her (a relatively rare occurrence, although perhaps not as rare as some people think).

In July 2022, a clerk I’ll call “Isaac” started clerking for a district judge in Connecticut (“the Judge”)—and it did not go well. As Isaac would later tell people—including not just friends of his, but people who applied to clerk for the Judge—she was verbally abusive. According to Isaac, she would shame her clerks in front of other clerks for small errors and typos, leaving the door to her private office open so that everyone in chambers could hear her dressing down clerks. (I’m focusing for now on Isaac’s claims, as necessary background; later on in this post, I offer reasons to question them and a defense of the Judge, including testimonials from ex-clerks.)

On September 23, 2022, Isaac requested an Employment Dispute Resolution Plan from the Judge’s court. He alleged abusive and harassing behavior by the Judge toward her staff, and he announced that he would no longer work for her.

Before any investigation was made into his claims, Isaac was offered the opportunity to transfer to the chambers of a different judge, which he accepted. He was officially transferred on October 11, 2022—and on October 12, he filed a complaint against the Judge under the Judicial Conduct and Disability Act of 1980.

Chief Judge Debra Ann Livingston of the Second Circuit ordered an investigation, which consisted of the Circuit Executive and the Circuit Director of Workplace Relations interviewing current and former chambers staff, including Isaac. The investigation revealed that “the workplace conduct concerns raised in the complaint were shared by other law clerks who, while recounting that they had learned a lot from the Judge, agreed that the Judge’s management style could be overly harsh.”

Here’s what happened next, according to Chief Judge Livingston’s December 15 order that dismissed Isaac’s complaint:

The Judge shared on several occasions how deeply troubled and saddened the Judge was at hearing the concerns expressed by the Complainant and others, and wanted it to be clear that the Judge is committed to creating a better workplace environment for chambers staff.

As the Judge put it, the Complainant has been heard. Subsequent interviews appear to bear this out, indicating that current clerks’ experiences have generally improved since these concerns were brought to the Judge’s attention when the instant complaint was filed.

As a result of the complaint and investigation, the Judge committed to attend counseling about workplace conduct and management, watch videos and webinars about workplace conduct, and consent to check-ins by the Circuit Director of Workplace Relations with each term clerk, at or near the midpoint of the clerkship term. In light of these promises, Chief Judge Livingston dismissed the portion of Isaac’s complaint based on workplace conduct because “the subject judge”—i.e., the judge who was the subject of the complaint—“has taken appropriate voluntary corrective action.”

Who is the subject judge? Chief Judge Livingston’s order did not identify her, but I can report that it’s Judge Sarah A.L. Merriam. Isaac clerked for her during her final months as a trial judge in the District of Connecticut. On September 23, 2022—the very day that he filed his judicial misconduct complaint—Judge Merriam began her service on the Second Circuit, where she currently sits. (And Isaac, interestingly enough, is currently clerking on the Second Circuit, for a different judge.)

A few weeks ago, I reached out to Chief Judge Livingston and Judge Merriam for comment on Isaac’s complaint. Neither responded to me, but Michael D. Jordan, Circuit Executive for the Second Circuit, informed me by email that “judicial misconduct proceedings are confidential by statute and rule, so I am not able to comment on anything related to judicial misconduct proceedings or orders.”

But that’s not entirely accurate. As I pointed out to Jordan, 28 U.S.C. § 360 and Article VII of the Rules for Judicial-Conduct and Judicial-Disability Proceedings expressly permit a subject judge and chief judge to agree to disclose information about an investigation. In addition, the Rules specifically provide that “[n]othing in this Rule precludes the subject judge from acknowledging that he or she is the judge referred to in documents made public under” these Rules—such as the December 15 order at issue here, previously made public by the Second Circuit.

In addition, despite Jordan’s claim that “judicial misconduct proceedings are confidential,” another court official was perfectly happy to deny to me that a different judge was the subject of Isaac’s complaint.

Before I learned that the judge in question was Judge Merriam, a source pointed out to me an interesting fact: on October 11, 2022, the exact date that Isaac left his clerkship, a different judge posted an announcement soliciting clerkship applicants. I reached out to this judge to inquire whether he might be the judge who was the subject of Isaac’s complaint. The judge did not respond to me directly, but Edward Friedland, the District Court Executive for the Southern District of New York, wrote to me as follows: “While we do not comment on personnel matters, you are mistaken in your belief that this matter relates to Judge [X]. The date of his posting is a coincidence as the posting was for future clerks, not a current vacancy.”

So when I reached out to the Second Circuit about Judge Merriam, it would have been very easy for the court to respond similarly: “While we do not comment on personnel matters, you are mistaken in your belief that this matter relates to Judge Merriam.” Instead, I received an email citing the confidentiality of misconduct proceedings.

Since I had emailed the Second Circuit several weeks ago, I made a final effort to obtain comment earlier this week. After noting once again the provisions allowing a subject judge to confirm that they’re the subject of a complaint—i.e., to waive confidentiality—I wrote as follows:

I respectfully submit that this represents an opportunity for the Second Circuit to address, in a forthright manner, important workplace issues facing law clerks. An apology and statement of remedial measures taken—such as the ones already discussed in Chief Judge Livingston's order—would go a long way toward showing that the Second Circuit and the federal judiciary take these issues seriously.

I received no response. And this did not surprise Aliza Shatzman, president and founder of the Legal Accountability Project (LAP), which seeks “to ensure that law clerks have positive clerkship experiences, while extending support and resources to those who do not.” (For more about LAP, listen to my podcast interview of Shatzman.)

“The judiciary loves to invoke confidentiality to protect judges who mistreat clerks,” Shatzman told me. “They do not care a whit about protecting clerks. Take an order like this one, where the judge was anonymous. It’s useless to anyone who might want to use this information to avoid this judge’s chambers.”

“There’s rarely any real discipline for judges who mistreat clerks,” she continued. “The voluntary actions that the Judge agreed to here are meaningless and wholly inadequate. And even the one mechanism that I’ve advocated for, having the Circuit Director of Workplace Relations check in with clerks, will end in August 2025. This should be a routine mechanism—for all judges’ chambers.”

But what if a complaint by a clerk is frivolous? Why should a judge’s name be dragged through the mud?

Here’s the thing: the problem of false or exaggerated allegations is not limited to the judiciary. Every day, in courts around the country, civil and criminal cases are filed against defendants. Those defendants are named, in the filings and sometimes in news reports, whether or not the allegations have merit. It’s not clear why judges should enjoy a confidentiality protection that litigants—including defendants in cases alleging workplace harassment or abuse—do not.

And given how beneficial it is professionally to have a federal judge as your supporter (or at least neutral) as opposed to a critic, I would expect the incidence of clerks making false accusations against judges to be relatively low, at least compared to false accusations generally. In recent years, we have learned about egregious judicial misconduct that took place years earlier but was never reported at the time—suggesting that the problem of under-reporting is a bigger problem than false reports when it comes to judges.

And in the specific case of Isaac’s complaint, I’m not reporting anything that’s not already known to many. It’s an open secret at 40 Foley Square—aka the Thurgood Marshall United States Courthouse, the headquarters of the Second Circuit—that Judge Merriam is the judge in question. Numerous clerks and judges, on both the Second Circuit and the Southern District of New York (S.D.N.Y.), have known this fact, and have been buzzing about it, for months.

And why is that? Isaac graduated from a T14 law school, he spoke freely to many classmates and fellow clerks about his experience with Judge Merriam, and they in turn spoke to others—your classic game of telephone. Before long, it was common knowledge—among Second Circuit and S.D.N.Y. clerks, the judges they work for, and students and alumni of Isaac’s alma mater and similarly elite schools—that Judge Merriam was the judge in question.

But note the community of people with this knowledge: legal elites. This is how the so-called “whisper network” operates: you benefit from its knowledge only if you’re in the in-group. Even though many students and graduates of T14 schools knew about Isaac’s allegations against Judge Merriam—and could use that knowledge to avoid applying to her, if they so chose—students and graduates outside these circles would have no way of knowing any of this (well, until now).¹

The real issue here is the need for “democratizing information about judges and increasing transparency in the clerkship application process,” in the words of LAP. Students and graduates of top schools already enjoy great advantages in terms of landing clerkships—and that’s unlikely to change anytime soon. But it strikes me as unfair that on top of those advantages, they also get the benefit of better information about judges—including which judges to apply to, and which judges to avoid—via the whisper network.

So the interpersonal difficulties between Isaac and Judge Merriam are not really the point. They simply illustrate—and provide an important occasion for discussing—some larger, systemic problems surrounding clerkship culture.

But for those of you appreciate judge-specific “inside baseball,” here’s some additional information and opinion. It’s largely in defense of Judge Merriam, offering caveats to Isaac’s complaints.²

To be clear, I don’t think Isaac made up his allegations about Judge Merriam out of whole cloth. As noted in the Livingston order, other Merriam clerks “agreed that the Judge’s management style could be overly harsh.” Given the power imbalance between a judge and her clerks, these are not comments that clerks would make lightly. For example, I would never have described the management style of my former boss, Judge O’Scannlain, as “overly harsh” (because it wasn’t). The fact that some clerks said this about Judge Merriam—to Second Circuit officials conducting a workplace investigation, knowing it would get back to her—is significant.

But grounds do exist for questioning Isaac’s accuracy as a complainant. For starters, in his complaint against Judge Merriam, he raised three other contentions, in addition to mistreatment of chambers staff, that in my opinion appear to lack merit—and weak allegations arguably raise doubts about his other claims. Let’s review them:

1. “Receipt of Gifts: The complaint alleges that the Judge committed ethical violations by accepting a gift from an outgoing law clerk of a framed newspaper cutting from the 1970s featuring one of the Judge’s favorite bands, as well as requesting and accepting a jar of grape jam from a member of chambers staff who was vacationing in New Hampshire.”

Chief Judge Livingston dismissed these gifts as “de minimis,” and I agree. Yesterday, Fix the Court reported that over the past two decades, Supreme Court justices accepted 344 gifts worth $2,993,036 (for an average of around $8,700 per gift). So excuse me for not getting my boxer briefs in a wad over a jar of jam.

2. “Communication with Attorney: The complaint also alleges that the Judge improperly engaged in text message communication with a defense attorney on a pending criminal case in the Judge’s court. A limited inquiry revealed that the text message exchange at issue involved an attorney sending the Judge a text message congratulating the Judge on a professional accomplishment, and was followed by a perfunctory back and forth of a few exchanges related to that accomplishment. The Judge was not assigned to the criminal case referenced in the complaint.”

Per Chief Judge Livingston, “A brief exchange between a judge and an attorney about a judge’s professional accomplishments does not give rise to concerns about ex parte communications or other misconduct.” (By the way, I suspect that the “professional accomplishment” was Judge Merriam’s confirmation to the Second Circuit, which took place during Isaac’s clerkship.)

3. “Research on Defendant’s Assets: The final allegation in the complaint is that the Judge conducted research on a criminal defendant’s assets after the defendant failed to appear for a status conference. A limited inquiry revealed that the Judge, in coordination with the court’s pre-trial and probation department, looked at public property records to confirm that the defendant owned certain property in order to determine whether the defendant’s bail should be secured.”

Chief Judge Livingston made short shrift of this: “in contemplating a change in bail conditions, the Judge properly considered the defendant’s assets, and appropriately coordinated with the probation department to conduct the relevant research into the defendant’s real property assets. The allegation is accordingly dismissed.”

Finally, I’ll leave you with testimonials from former Merriam clerks. I reached out to a half-dozen whose information I could find online, two responded, and they both raved about their experiences with her:

• “I would not trade my time with Judge Merriam for anything. She consistently acted both as a mentor and a friend to me and others in chambers—taking an interest in our lives, approaching every day with humor and humility, and being incredibly generous with her time. I can speak only for myself, but I did not experience or witness anything remotely approaching ‘abusive and harassing conduct.’ To the contrary, I remember making a non-trivial error in a piece of work product, and she responded with nothing but patience and kindness. I continue to enthusiastically recommend that others clerk for her.”

• “I had an absolutely fabulous clerkship with Judge Merriam. I have worked for other judges, as well as lawyers in private practice, and Judge Merriam was the best boss I’ve ever had. She was kind, compassionate, and thoughtful, and she took her role as a public servant incredibly seriously. If I could go back in time to any year in my professional life, it would be to the year I spent in Judge Merriam’s chambers.”

I pressed one of the clerks: if you had such a great clerkship, what do you think could have led Isaac to claim “abusive and harassing behavior”? And why would additional clerks have described an “overly harsh” management style? This clerk responded:

In giving feedback, she’s direct. I appreciate that as a managerial style, even though I know that not everyone does. That’s the only thing I can think of.

“Overly harsh” strikes me as unlike anything I ever experienced. She never raised her voice to me during the entire clerkship.

In fact, according to this clerk, only one thing from the Livingston order rang true:

The only thing that struck me as consistent with my clerkship experience is the statement that Judge Merriam took the complaint very seriously and took immediate steps to address it. During my clerkship, she was always open to receiving our thoughts. So her responsiveness to feedback, including critical feedback, struck me as very familiar.

This isn’t the first time that clerks to the same judge have reported very different experiences. As you’ll recall from my in-depth report on clerking for Judge Cannon, her early clerks adored her, even if her more recent clerks have not. So complaints (or praise) about a judge from a single clerk are no guarantee that you will have a similarly bad (or good) experience in chambers. Try to talk to multiple sources.

This leads me to my final point, a piece of advice for everyone applying for clerkships next week: know yourself, and try your best to know the judges. A judge might be a great boss for some clerks, but a poor boss for others.

Are you okay with candid if borderline harsh feedback? Or do you prefer a kinder, gentler approach?

Do you welcome lots of detailed direction? Or do you resist micromanaging?

Are you okay with a somewhat distant, strictly professional relationship—which is how some judges roll? Or are you looking for what I like to call a “buddy judge”?

In the abstract, one approach isn’t better than the other. But you need to figure out what works best for you, and whether a given judge’s work style meshes with yours.

To everyone applying for clerkships next week, I wish you the best of luck. Despite clerks who have bad experiences—which should be scrutinized, not swept under the rug—I continue to believe that most clerkships are positive, for both the clerks and the judges. But as with any relationship, both parties need to put in the work.

P.S. If the screenshot from Clueless that I’ve used to illustrate this post doesn’t make sense to you, watch this short clip to enlighten yourself.

UPDATE (6/8/2024, 10:48 a.m.): It appears that some judges and clerks outside the Second Circuit and S.D.N.Y. might have known about allegations of Judge Merriam being “overly harsh” toward her clerks. From a source: “I clerked in D. Conn. and heard firsthand accounts of people who had heard Judge Merriam screaming at clerks so loudly that you could hear it in adjacent chambers.”

1. For folks who will be sending out clerkship applications on Monday but aren’t fortunate enough to attend law schools with knowledgeable clerkship advisors and large databases of clerkship evaluations, how can you educate yourselves about judges and make informed decisions about where to apply?

Consider signing up for the Legal Accountability Project’s Clerkships Database, which has been collecting post-clerkship surveys from ex-clerks since April 2023. There’s a $20 fee to cover the costs of setting up and maintaining the database, but considering the importance of picking the right clerkship, the $20 strikes me as a small price to pay.

2. If you enjoy drama involving judges and law clerks, check out my novel, Supreme Ambitions, or the archives of my first blog, Underneath Their Robes—which I launched 20 years ago this month.

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