Anonymous Law Clerks Claim Forced Silence on Israel-Hamas War

A group of anonymous federal law clerks have signed an open statement saying they have been “forced” by ethics rules to be “only passive observers of Israel’s assault on Gaza,” even as some federal judges speak out on the ongoing conflict.

In the statement published Wednesday in the blog Balls & Strikes, which is backed by the left-leaning judicial advocacy group Demand Justice, the clerks said that “in theory,” members of the judicial branch are “powerless” to discuss the war in Gaza as it’s a political matter. The letter points to a January court ruling by US District Judge Jeffrey S. White in the Northern District of California, in which he said that while a challenge to the US’s aid to Israel is a political question barred from review in court, “it is plausible that Israel’s conduct amounts to genocide.”

The anonymous law clerks said that many of them were “explicitly instructed by our judges not to participate in a range of activities from providing legal services, to attending protests, to liking related Instagram stories on our private accounts. Some of us were even advised against discussing the conflict in our family group chats over concern that our words could be perceived as representing the opinion of the court for which we work.”

However, the clerks noted, several federal judges have spoken out about the conflict, including some who have said they will not hire law clerks who have signed onto statements those judges say effectively supported Hamas’ deadly attacks in Israel on Oct. 7. They also pointed to a letter signed by 13 federal judges who said they would not hire law clerks from Columbia, over the university’s handling of pro-Palestinian encampments on its campus.

The letter also noted a trip to Israel that 14 federal judges went on earlier this year, with one participant saying it was “about bearing witness to atrocities.”

“In that spirit, we, too, would like to bear witness: to the ongoing genocide in Gaza; to our government’s complicity in that genocide; and to the bravery of those resisting state-sanctioned violence to call for a free Palestine—from campus solidarity encampments to the Gaza Strip. Although the rules of the judiciary prevent us from publicly advocating at this time, we write this letter as a small gesture of our love and solidarity,” the law clerks wrote.

While the letter doesn’t include any identifying information for the law clerks, an editor’s note on the post said that Balls & Strikes has verified the signatories’ identities.