Sex Scandal Report Highlights Judges’ Over Delegation to Clerks (1)

The legal world has been buzzing about Judge Eleanor Ross, a federal trial judge in Atlanta since 2014. A judicial conduct committee 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.

In my opinion, Ross should resign—and if she doesn’t, she should be impeached. But aside from the sex and lies, other allegations in the committee’s report raise more important—and endemic—questions for the federal judiciary as a whole.

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.

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, indicating that [she] may not have had time to read it.” Perhaps most troublingly, “it was generally understood” that she “did not wish to discuss substantive civil-case related issues with clerks.”

This didn’t sit well with the 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.”

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?

The committee, which cleared Ross of possible misconduct in the supervision and treatment of her clerks, largely dodged these questions. 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 involved 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.

Most 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 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 Big Law 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 Big Law 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 had Blackman revise the opinion to omit discussion of the issue in question.)

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 over delegation, 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 terms of 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.”

Don’t get me wrong. 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.

David Lat, a lawyer turned writer, publishes Original Jurisdiction. He founded Above the Law and Underneath Their Robes, and is author of the novel “Supreme Ambitions.”

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