HELP: My COA Judge Hired Racist Clerk Forum

[Anonymous User]

So here’s the situation:

I’m a current 3L who has accepted a clerkship with a COA judge (won’t say more, for privacy reasons) for 2023. I’ve had positive interactions with the judge and have not seen anything that would strike me as a red flag, with one glaring exception. I recently discovered through a friend at another school (and had it confirmed through another colleague) that this judge has hired a clerk for my term who has made several openly anti-Black statements that were widely reported in the news.

I am not Black myself, but find this clerk’s behavior beyond the pale and reprehensible. I am shocked that my judge — who I can only assume did their due diligence and is aware of the individual’s statements — hired the person. To be frank, as a right-leaning person myself, I do not feel comfortable working in an environment where this person’s views are treated as merely incidental. Without saying more, the many news stories that are out there regarding the person’s statements about Black people are simply jarring and frightening.

So my question to you all is: what do I do? I have no idea how I would go about confronting the judge about this. I have not told anyone other than my significant other. But I simply cannot imagine having this person as a co-clerk, and I am distraught that the judge made what is in my opinion a deeply unethical decision.

Please help!

[Anonymous User]

So here’s the situation:

I’m a current 3L who has accepted a clerkship with a COA judge (won’t say more, for privacy reasons) for 2023. I’ve had positive interactions with the judge and have not seen anything that would strike me as a red flag, with one glaring exception. I recently discovered through a friend at another school (and had it confirmed through another colleague) that this judge has hired a clerk for my term who has made several openly anti-Black statements that were widely reported in the news.

I am not Black myself, but find this clerk’s behavior beyond the pale and reprehensible. I am shocked that my judge — who I can only assume did their due diligence and is aware of the individual’s statements — hired the person. To be frank, as a right-leaning person myself, I do not feel comfortable working in an environment where this person’s views are treated as merely incidental. Without saying more, the many news stories that are out there regarding the person’s statements about Black people are simply jarring and frightening.

So my question to you all is: what do I do? I have no idea how I would go about confronting the judge about this. I have not told anyone other than my significant other. But I simply cannot imagine having this person as a co-clerk, and I am distraught that the judge made what is in my opinion a deeply unethical decision.

Please help!

If you are serious and aren't just a troll, your assumption that your judge knows about the "statements" made by their incoming clerks is insane. One of my judges doesn't even use email.

Personally, I would just nut it out and try not to spend much time with the clerk you find distasteful (in most chambers you don't spend much time working with other clerks since your work is largely solitary). If you really feel that strongly about it you could bring the article to your judges attention, but I would be prepared to blow your relationship with him/her.

[nixy]

Yeah, I don't think you can at all assume that the judge knows about the statements. It's not likely that the candidate or their recommenders would bring that up, and lots of judges aren't going to bother to google a candidate.

I realize that doesn't address the central issue, which is really tough. It seems to me that your options are:

1) ask the judge about it directly now
2) say nothing now and see what happens when you work there, and if the clerk does/says things consistent with the news reports, bring it up with the judge then
3) find other work and withdraw from the job.

None of these seem great. The main issue with 1) and 2) is that it might turn out that your judge doesn't care (and with 1), asking now is just going to be weird/awkward), and then you have to decide what you want to do - bowing out now is easier than after you've started. And 3) might not really be necessary.

I'd probably say nothing and go to work and see what happens. Not saying that's the right/best thing to do, just probably what I'd do (because it's the path of least resistance).

Also, can you ask around - say with your faculty recommenders - and see if you can find anyone who knows the judge well enough to say whether this is consistent with their beliefs? B/c as unpleasant as it would be to work with a racist co-clerk, it seems really the bigger issue is whether the judge shares their sentiments. I really don't think you can assume that they do, but you can't rule it out, either.

(Depending on circumstances, it's also possible the media got stuff wrong/blew it out of proportion. I defer to you on that, I realize some stuff is just bad no matter what and this may be that, but it is worth keeping in mind.)

[Anonymous User]

Welcome to the real world? Not sure what to say.. other than don't take this attitude to any other employer.

Mod Note: User is nativtracker (anon abuse)

[nixy]

I don’t really get the above post (not why it’s anon). There are plenty of employers who don’t want to hire people who make racist statements and it’s not unreasonable not to want to work with people who make racist statements.

[Anonymous User]

I also worked for both a 70-something judge who didn't use a computer and a 60-something judge who wouldn't think to google a person's name, so I agree that it's no guarantee the judge knows about this. But the current clerks should, unless the judge doesn't involve the clerks in hiring. I never went into a clerk interview without googling the person's name.

Did you speak to a past clerk before your interview? If you did that's probably the way to go here: float the situation to that clerk and listen to their reaction. If it's "oh wow, Judge would never hire someone like that, I don't know what happened," that's something that you can talk to the past clerk about how to elevate to the judge--ideally a senior member of the judge's clerk alumni network would raise it. Past clerks in most chambers keep in touch with each other and tend to be fiercely protective of their judges.

If the clerk's reaction is "well Judge is from a different generation and isn't a politically correct guy"...you probably have to live with the situation. Your choices are to take the job and keep your distance from this person, or withdraw.

[ninthcircuitattorney]

Why don't you send an anonymous letter to chambers and see if the clerk stays. If nothing changes, you will know that your judge is not bothered by this.

[nixy]

Why don't you send an anonymous letter to chambers and see if the clerk stays. If nothing changes, you will know that your judge is not bothered by this.

Or that the judge isn’t impressed by an anonymous letter and tossed it without following up because why should they pay attention to some anonymous weirdo?

[Iowahawk]

I also worked for both a 70-something judge who didn't use a computer and a 60-something judge who wouldn't think to google a person's name, so I agree that it's no guarantee the judge knows about this. But the current clerks should, unless the judge doesn't involve the clerks in hiring. I never went into a clerk interview without googling the person's name.

Did you speak to a past clerk before your interview? If you did that's probably the way to go here: float the situation to that clerk and listen to their reaction. If it's "oh wow, Judge would never hire someone like that, I don't know what happened," that's something that you can talk to the past clerk about how to elevate to the judge--ideally a senior member of the judge's clerk alumni network would raise it. Past clerks in most chambers keep in touch with each other and tend to be fiercely protective of their judges.

If the clerk's reaction is "well Judge is from a different generation and isn't a politically correct guy"...you probably have to live with the situation. Your choices are to take the job and keep your distance from this person, or withdraw.

This sounds like good and practicable advice to me. Also maybe talk to a well-connected prof (if you have one you're close with) or your school's clerkship people about your concerns. It's obviously a very delicate situation you should get more nuanced, non-anonymized advice about.

[lavarman84]

I hate to be insensitive here, but the best advice I can offer is to just keep your head down, do your job well, and keep away from that clerk to the extent practicable (be pleasant when you can't).

[Anonymous User]

You could let ATL know that an openly racist person is about to have a ton of influence and prestige as a clerk to an appellate judge. Then you can let the judge know when it’s fresh.

What a crazy fucking gig where someone who has expressed so much racial animus gets to shape so many people’s lives and it’s viewed that OP has the obligation to not rock the boat. Seriously how fucked is that. Nobody seems worried about the impact this racist clerk would have on clerks of color either, so they’ll be in the position of having to take on the burden of speaking out or dealing with an open racist.

OP, sorry you’re in this position but I don’t think you’re crazy to want to do something. At my previous firm I summered with a guy who was in ATL for hosting a super racist xenophobic event at his campus. I emailed recruiting the ATL article. Obviously didn’t do anything because he got an offer, went to a prestigious clerkship, and is at the firm now. There’s a whole little white supremacist contingent at Kirkland and Ellis.

[Anonymous User]

Yes, the flyer was very bad. Burke Society flyers used to give hyperbolic arguments for both sides, as you'll see from reading the thing, but the anti-immigration ones in this one were way over the line. As you say, curious people can read it and decide for themselves.

Anyway, this isn't what the thread is about and I regret contributing to derailing it. I just think it's best not to libel people under cover of anonymity, especially obviously identifiable specific people, or get really upset that your law firm wouldn't fire someone whose politics you don't like. Especially on a thread with nothing to do with the situation (this is the clerkship forum).

[beepboopbeep]

Why are any of these posts anon (other than the guy with inside info re: Kirkland above)?

Agreed with the on-topic posts upthread: the judge probably doesn't know, so tell him. Whether it's a dealbreaker for you to work with this guy if the judge doesn't rescind his offer -- or to clerk for this judge who is fine with the other clerk even after knowing about what you report to him -- is up to you. People have withdrawn from clerkships for worse reasons.

[beepboopbeep]

Why are any of these posts anon (other than the guy with inside info re: Kirkland above)?

Agreed with the on-topic posts upthread: the judge probably doesn't know, so tell him. Whether it's a dealbreaker for you to work with this guy if the judge doesn't rescind his offer -- or to clerk for this judge who is fine with the other clerk even after knowing about what you report to him -- is up to you. People have withdrawn from clerkships for worse reasons.

I'm anon because I went to Chicago during the event in question and have met the guy once or twice. I guess the fiasco was public enough that I didn't really need to be, but I'd rather not have my law school/class on my public account.

Fair enough.

[Anonymous User]

also a Chicago student there at the time and anon for the same reasons (mods, delete this post if this can't be anon, though it seems exactly what anon feature is for). Caricatures is a better word for the debate flyers (exaggerations to create a comic or grotesque effect). Every debate, on a range of hot topics is presented in a flyer through two opposing sides, which are caricatures of the pro/against positions. Immigration is a hot topic and there is a rational debate whether we should have more or less (fwiw, I believe borders should be open). The flyer doesn't take a position, and believe it or not people could oppose immigration for a whole host of reasons unrelated to any racial supremacy ideas, which are detestable. I think they're wrong. But I also think it is a sad leap to attribute racial or white supremacy motives to the society or its board, or the individual member based on the flyer. That kind of charge ends any discussion and shows a pretty closed off view of the issue and forum. Was the flyer a very poor choice of words? Probably, if only for how it might be viewed by others and if offense can be avoided with little or no extra effort, it generally should be.

To the OP, I am sorry for your unfortunate situation. You have my sympathy. It's a clash of conscience and personal career considerations. I think the poster who gave advice to talk with someone at your school is probably good, if only to talk openly about the issue with someone and could lead to more clarity in what you should do. I don't know the statements of the person or the commentary/articles that have been written about it. If there is room for some benefit of the doubt, that might be worth trying to see (e.g. I think the Chicago incident was an example of mob justice racing to outdo each other, though you or others may disagree). If there isn't room for doubt, then I don't think you would be crazy to bring the issue up with the judge and say you would not be able to work with this person (emphasize your inability to work with the person rather than saying how bad that person is, which implies the judge messed up). Presumably judges want smooth chambers, and this would be a very forthright disclosure. Maybe the judge lets you go quietly and you can apply elsewhere (you have time). These are just my thoughts though and all chambers are different.

For the record, I also know the person in question and know several people who’ve worked with him for a while, so the poster is a high profile example but not the sole source of me resenting having to work with him based on his views and the things he does.

OP, this whole discussion shows how ingrained the ideas of racism and privilege are in the legal world, which you should consider when you are deciding what to do. Wealthy, well connected people will bend over backwards to excuse and dismiss racial animus and lash out against people who speak up against it? The people who act that way basically never face any accountability and go on to prestigious careers. There’s basically no limit to this either. You just have to look at examples like this one or like that Harvard student who said that black people were stupid who kept her clerkship with whatever circuit. And there’s a very real chance that people like the posters above will hold it against you for speaking out.

It sucks.

[Anonymous User]

Unfortunately this is the sort of gaslighting and crazy rationalizations that make it so hard to confront racist colleagues.

We've seen (1) the classic "well he said it, but those weren't his words, he was just expressing someone else's opinion", (2) the "really it was for a debate and we can't call everything racist because that just shuts down the marketplace of ideas", (3) "you have to look at this in context" (4) "really it wasn't racist, just a poor choice of words" , (5) "there are legitimate questions about this" , (6) "there's been discrimination against white people too", and (7) "we really shouldn't be having this conversation at all because isn't this libel/I'll sue you"?

I think we're just missing the old standbys of "wasn't this a long time ago, you can't hold it against him forever", "he was just in his mid-twenties and kids say dumb things", and "liberals are only attacking him because he's conservative."

Ooh also "just asking questions/devil's advocate"

[Anonymous User]

OP here,

As implied in my post, I consider the clerk’s statements disqualifying for someone seeking to make important decisions impacting lots of people on behalf of the federal government. I am not seeking advice on whether that view is correct. If you believe this is unreasonable, thank you for your input, but kindly refrain from posting further here because I won’t change that position and I’d like this post to be targeted to addressing the central issue.

I guess I overestimate how thoroughly employers research potential hires. Googling has always been my practice, but I recognize that it isn’t shared by everyone. In this case, the articles in question would appear in any Google search of the clerk’s name, so it’s obvious the judge and his staff (if they helped) either did not do so or did and do not care.

I am not unwilling to withdraw. My concerns are that 1) I made a commitment and 2) that this clerk’s views will go unopposed. That is, I don’t believe the federal judiciary is better off when racists get influential positions and people who oppose racists leave in protest or disgust. I am capable of working with this person and I do not need to like them or play nice. My concern at this point is only whether I have a moral obligation to leave so as to not appear to endorse this person’s views or (if this is in fact the case) or the judge’s belief that the person’s views are harmless.

Hope this clarifies things.

[Anonymous User]

Yeah, I think you need to be prepared for your judge and fellow clerks tripping over themselves to make excuses for the racist clerk.

[nixy]

FWIW, I don't think anyone attributes political/moral views of a judge or a co-clerk to a clerk. Everyone understands that you don't have any control over who a judge hires to clerk the same year as you, and very little control over who hires you; clerks frequently end up working for judges with whom they disagree politically. Some of the more ideological judges actually go out of their way to hire counter-clerks, in fact. I think it's going to be a very very very rare circumstance in which you'll be tainted by a judge's political stance (and basically never for a co-clerk), and it would be someone so notoriously extreme, I think you would have come across that reputation before getting hired by them. Again, I would talk to people at your school to find out more about the judge's general reputation (assuming you didn't do so thoroughly when applying), but I don't think it's going to reflect on you.

There is a kind of mercenariness/general ickiness about how clerks will work for judges they disagree with because the career boost is too good, but I think everyone gets how things work and doesn't hold anything against the clerks.

As for the clerk's views going unopposed - I think you will find there will actually be very few occasions where their view will be relevant to the work you're doing; the vast majority of your job will be to apply clearly settled law to a particular set of facts. There's not actually a lot of politics involved. I clerked for a judge and especially co-clerk with whom I usually disagreed with, politically, but it never came up in the context of work, and certainly not with the judge; it was more in debates with the co-clerk over lunch about stuff not at all related to work. And it probably came up as much as it did only b/c of my co-clerk's personality and position (they were a career clerk, for instance, so I think felt no need to be particularly discreet). And in a COA there will be other clerks, too, which will change the dynamic.

I don't agree with the person above. (I don't agree with defenses of the Chicago flyer as caricature etc. and realize that perspective is out there, but I think the anon above has an overly jaded view.)

[beepboopbeep]

OP here,

As implied in my post, I consider the clerk’s statements disqualifying for someone seeking to make important decisions impacting lots of people on behalf of the federal government.

Not to nitpick, because I think the rest of your post is well-addressed by nixy, who as usual has a good and measured take.

But, well, to nitpick: especially at a COA, clerks typically don't make decisions that (by themselves) impact anyone, and clerks don't have authority to act on behalf of the federal government. Clerks make a recommendation to the judge. That's it. The judge makes the final call, and it's their name on the opinion or order. They're the ones with the commissions hanging on the wall. Yes, there are some judges who are rumored to more or less rubber-stamp their clerks recommendations, but there's still three judges on every COA panel, and two of them have to agree to do anything. Probably most clerks have an experience during the year where they disagree strongly with how a panel decided a case. And I understand that this doesn't make the co-clerk's racism any better or excuse it in any way. But I do think it's helpful to keep a clerk's job in perspective. Neither you nor your co-clerks are making the law by yourself.

No one can tell you whether withdrawing is morally correct for you. Up to you. Like nixy, I disagreed with my co-clerks both on politics and the law all the time. We were able to work together and remain (mostly) collegial, and having open disagreement on issues helped our judge. I was and am grateful that I was able to express my views and play a part in a year's worth of my judge's decisions.

[lavarman84]

OP, this whole discussion shows how ingrained the ideas of racism and privilege are in the legal world, which you should consider when you are deciding what to do. Wealthy, well connected people will bend over backwards to excuse and dismiss racial animus and lash out against people who speak up against it? The people who act that way basically never face any accountability and go on to prestigious careers. There’s basically no limit to this either. You just have to look at examples like this one or like that Harvard student who said that black people were stupid who kept her clerkship with whatever circuit. And there’s a very real chance that people like the posters above will hold it against you for speaking out.

It sucks.

FWIW, I advised OP to keep his/her head down and do basically nothing. And it's for the exact reasons you stated. A COA clerkship is a gold star. This is a snobby profession. And unfortunately, there are a lot of privileged white people in positions of power who are willing to overlook, rationalize away, or excuse racism. That flyer was racist and absolutely out of line. But this profession is full of people who will say the same sorts of things when they're around what they believe are likeminded individuals.

[nixy]

OP here,

As implied in my post, I consider the clerk’s statements disqualifying for someone seeking to make important decisions impacting lots of people on behalf of the federal government.

Not to nitpick, because I think the rest of your post is well-addressed by nixy, who as usual has a good and measured take.

But, well, to nitpick: especially at a COA, clerks typically don't make decisions that (by themselves) impact anyone, and clerks don't have authority to act on behalf of the federal government. Clerks make a recommendation to the judge. That's it. The judge makes the final call, and it's their name on the opinion or order. They're the ones with the commissions hanging on the wall. Yes, there are some judges who are rumored to more or less rubber-stamp their clerks recommendations, but there's still three judges on every COA panel, and two of them have to agree to do anything. Probably most clerks have an experience during the year where they disagree strongly with how a panel decided a case. And I understand that this doesn't make the co-clerk's racism any better or excuse it in any way. But I do think it's helpful to keep a clerk's job in perspective. Neither you nor your co-clerks are making the law by yourself.

No one can tell you whether withdrawing is morally correct for you. Up to you. Like nixy, I disagreed with my co-clerks both on politics and the law all the time. We were able to work together and remain (mostly) collegial, and having open disagreement on issues helped our judge. I was and am grateful that I was able to express my views and play a part in a year's worth of my judge's decisions.

Totally agree with all of this.

[GoneSouth]

In the wake of Kozinski, a lot of courts have set up ways for judicial employees (including clerks) to raise issues in this realm without having their name attached to them. You might see if the court you’re going to work for has something like this. I would imagine if the court knew about this, they’d be interested in getting these concerns before the judge without saying, “XX future clerk tattled on him,” especially to the extent there is objective evidence like social media posts that don’t really require a first-hand account from you.

If it’s CA9, feel free to shoot me a DM and I can try to point you in the right direction.

[Anonymous User]

My concern at this point is only whether I have a moral obligation to leave so as to not appear to endorse this person’s views or (if this is in fact the case) or the judge’s belief that the person’s views are harmless.

I'm the anon who first recommended that you speak to a past clerk. I'm now a little less sure about my previous advice. I had assumed after reading your initial post that your future co-clerk had said or written something so far over the line that no modern employer who knew about it would hire him: use of the n-word, praising wh*te supremacists or the Klan or whatever, espousing racist evolutionary theories, etc. Your second post made it seem more like your future co-clerk has written about a contentious political issue, like BLM or protests or affirmative action, and you feel strongly that his position is wrong and hateful, but that the position itself may still be somewhat mainstream.

The closer your co-clerk's writings are to the latter than the former, the less inclined you should be to raise the issue to the judge. I might recommend starting by showing them to someone (a professor or friend) who you respect but often disagree with on political issues, and see how they react.

You should withdraw from the job if you don't feel you will be able to give the judge, and by extension the litigants, your complete efforts because you're made too uncomfortable by the work situation. But I agree with the above posters' comments on the relatively low influence any individual clerk--you or this future co-clerk--have on the process. Your job as a clerk is not to "check" your co-clerks or stop the judge from issuing a decision you think is wrongful. Your job is to analyze the facts and law and make the most informed recommendation possible.

[nealric]

Mod note: please keep this on topic. All posts that are not addressing OPs specific issue will be deleted going forward.