Why Judges Should Ta ...

Why Judges Should Take the Legal Accountability Project Pledge | Judge Doug Nazarian & Aliza Shatzman

February 29, 2024 | by D. Todd Smith

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Judicial clerkships can provide unparalleled access and prestige to young lawyers just entering practice. But because the judiciary requires confidentiality and secrecy to operate properly, often law students don’t know what to expect. The Legal Accountability Project is working to change that by making the system more transparent for law schools and law students. In this episode, Todd Smith and Jody Sanders explore the Legal Accountability Project’s goals in a discussion with LAP founder Aliza Shatzman and board member Appellate Court of Maryland Judge Doug Nazarian. They discuss their new initiative for judges, the Legal Accountability Project Pledge, which they are using to help create a more transparent, diverse, and rewarding clerkship system. They also talk about the rollout of LAP’s clerkship database of surveys from clerks on the various judges. Finally, Judge Nazarian shares his experience working in Maryland appellate courts.

We have a bonus episode where we have two guests and one who has been on here before, Aliza Shatzman from the Legal Accountability Project and also Judge Douglas Nazarian from the Appellate Court of Maryland. Thank you all for joining us.

Thanks for having me.

Thank you.

We’ve had Aliza on here. She talked a little bit about the Legal Accountability Project, so I’d refer everybody back to that episode. Aliza, could you give us a little background on your project and maybe refresh our reader’s memories of who you are and what you do?

Sure. The Legal Accountability Project is a nonprofit I launched aimed at ensuring that law clerks have a positive clerkship experience while extending support and resources to those who don’t. We use advocacy, thought leadership and innovative legal technology to increase transparency, diversity and accountability in clerkships, the judiciary and the legal profession generally.

I launched the nonprofit following my own very negative clerkship experience, which I first shared publicly in congressional testimony to correct injustices I experienced as a law student and a law clerk. Our big initiative right now is our clerkship database, which finally increases access to candid, transparent clerkship information for students and young attorneys, finally answering the question, how do law students get information about judges with a better answer than they have right now than now?

I believe when you were with us before, Aliza, that database was in its early stages. We can talk about that in a little more detail. Besides the database being further along, what else is new at the Legal Accountability Project since we last spoke?

We’ve made a ton of progress since that first episode, which was probably right around the time we launched the nonprofit. Pretty soon after we launched, we went on this big fixing our clerkship system fall tour of more than twenty law schools. At this point, we visited more than 30 or entered season four of the law school programming roadshow. We talked to law students and law school admins across the country about our ideas for improving and diversifying the clerkship system.

When I launched the nonprofit, the messaging around clerkships was uniformly positive, which is misleading. While many clerkship experiences are positive, not all are and there was a real void in the dialogue. Through our candid clerkship messaging and programming, we have changed the conversation around judicial clerkships. Some of the best feedback I get from law school admins is that we have changed the messaging programming and advising on their campuses. They now recognize not everyone’s experience is positive and the negative ones should be shared too.

When we launched, I wanted to make sure we weren’t out there perceived as complaining and that we were going to identify concrete solutions. We immediately conceptualized this clerkship database. It has picked up steam so quickly. We’ve gained so much momentum. We started building this and at this point, we are launching the database for our first cohort of student users. We’ve collected almost 900 survey responses from law clerks and courts nationwide. It is incredible what we built and Judge Nazarian and I are very excited to have law students start using this to find a beneficial clerkship.

I’m going to ask you some more questions about this in a second, but first, I didn’t want to leave Judge Nazarian on the sidelines. I think your name may be familiar to some of our readers from either Twitter or X, whatever you prefer to call it. If you tell us a little about yourself, your background, and maybe your connection, the legal accountability project.

I’m a judge on the appellate court of Maryland. I’ve been on the court for years now and my first job out of law school, as with many of us, was a clerkship. I clerked for Judge James Loken on the United States Court of Appeals for the 8th Circuit. Unlike Aliza, fortunately for me, my clerkship was an incredibly positive experience and I would say, even formative.

I came out of that year feeling like I wanted to be my judge. I wanted his job. Essentially, I had pulled off at least the state court version of that so far. The experience was so important to me heading into our profession and was a huge part of the lawyer I became and also had very much oriented the way I’ve tried to run my chambers as a judge, to mentor my clerks and interns and to serve the people of our state.

I don’t remember if I learned about Aliza or the project first, but in any event, when she was testifying in Congress, I became aware of her experience or her testimony about it. I had been visible as an advocate for clerkships here in Maryland and elsewhere and we eventually connected. I still feel very strongly that clerking is, if not the best, one of the very best ways to enter our profession. I think the ultimate purpose of the project is not to burn the clerkship system down but to make it better by giving students the opportunity to have the clerkship experience I had rather than the one that Aliza had.

Legal Accountability Project: Clerking is one of the best ways to enter the law profession. The ultimate purpose of the Legal Accountability Project is to make it better and give students a more efficient clerkship experience.

The project and database in particular, are meant to be an independent source of candid information about clerkship opportunities. It’s available for students to do, as best they can, the research they need to know about the firsthand chambers experience they’re signing up for. Each court system, each chamber operates very differently. It is an intensely personal professional relationship and it’s important to make that connection a good one. The mission of transparency and improving clerkship opportunities is, quite frankly, broadening the range of clerkship opportunities both from the judge’s perspective and the student’s perspective. All are things that resonated with me as I learned more about the project.

I do want to circle back to the database a little bit. How are you rolling that out and who’s going to get access to it? How do they get access to it? How’s it going to work? It was still a work in progress when we last talked about it.

It’s gone through several iterations. We are going to launch for two groups of people. There will be some law school subscribers signing on throughout the spring and summer in a variety of ways. Perhaps as a pilot, we negotiated pricing on behalf of students considering a clerkship rather than on behalf of all their students. It’ll be a pilot year for law schools.

For law students and young alums considering a clerkship, we’re offering an individual subscribers model where students and young alums can go to Survey.LegalAccountabilityProject.org right now to get on a waiting list to request database access. There’ll be a small fee associated with it. We’ll offer scholarship opportunities to defray the cost because we don’t want cost to be a barrier for anybody. We’re going to roll it out in this two-tiered approach.

We want as many students from law schools nationwide as possible to do their research in a legitimate way that you would actually do research, not in the scattered, incomplete ways people research judges right now. We expect that law students will see, “This is as awesome as I suspected.” I think law school should pay to subscribe on behalf of all their students and they will be better positioned to advocate. We also plan to go back to every law school and say, “Look at how many of your students are already using this database,” and reapproach them that way. People can go to our website right now to request access and we’re excited to roll this out.

How are you verifying that the people who want access to it are actually law students?

We have a very robust verification process. On the law clerk submitting surveys side, they provide all their information, law school, class year, and full name. My eyeballs are on every single one of those 900 surveys. It’s a lot of hours. It’s crazy. I know about all the judges now. That is on the law clerk side. On the law student side, they’ll provide the same details, full name, law school, class year and a verifiable email address.

It was our intent initially and it still is for law schools who are working with us to work with the law schools to verify. We’ll give them a list or they’ll have an admin dashboard if they’re officially subscribed and they’ll check off like, “These 60 students went to our law school. These two do not go to our law school.” Once they check them off, their access to the database is granted.

For the individual subscribers, I will be verifying everybody. They’ll put in all their information. They’ll be providing me with a student ID if they’re an alum or some other type of verification. Opening up the database in this way democratizes the information, which is what we want. It also means my eyeballs need to be on every single user to make sure that our constraints are met, which is no judges circuit execs or reporters have access to this database. We need to verify everybody.

Even Judge Nazarian, who knows he’s in the database, has not seen the actual surveys about him. Though, of course, from meeting him, we know what the surveys are like. That’s how it works. We have a much more legitimate and robust verification process than law schools use for their internal databases. Several T-14 clerkship directors have told me, “We don’t know what’s in the database. We don’t look at all the surveys.”

Have you experienced an issue with people trying to get access who do not meet your criteria? Tell us a little bit about that.

We have not yet publicized this individual subscribers model. We’re only telling a couple of law students. We’re going to make that announcement. Right now, the people who’ve been requesting Rita Access are mostly either law students who’ve attended our programming or young alums who submitted a post-clerkship survey and then they went back to the admin dashboard and requested read access.

We only have a couple of dozen who’ve requested it so far. When this goes live, we anticipate some of those challenges, which is going to be an intense review by me and probably by our engineers as well to make sure only students and young alumni are getting access. I am sure lots of people will be very curious about this information. We have robust terms of use and we expect students and young alums to adhere to them.

What I’ve always said is that we want this information to continue to exist in this database. We expect people to abide by the terms of use. We expect only authorized users to be seeking database access. Of course, anybody who’s clearly a judge, circuit executive or reporter, we’re not going to grant them access. 2024 will be a pilot year for this database. We’ll see what works and what doesn’t and then we will retool. We want as many people to use this information to get a beneficial clerkship. When I am down or we experience a setback with a law school, I go look at the 900 survey responses from law clerks nationwide and realize how freaking awesome this thing is. We’re so excited for people to see it.

The people who submit the surveys, their information is not publicly available. It’s all anonymous and aggregated.

None of this is going to be publicly accessible. The only people who will be reading surveys will be law students who pay to subscribe or law students and young alums from participating in law school. It’s not public. People can submit surveys anonymously or they can attach their name. Nobody’s anonymous to LAP. They have to register with a name, but they can be anonymous to folks reading the surveys.

I would say about 50/50 are names attached in anonymous surveys and we’re not seeing much correlation between negative experience and wanting to be anonymous. We think people are putting their names on it because they want to do what some law schools do, which is facilitate clerk-to-student information sharing. They want people to reach out to them.

I follow you on social media and I know that you are doing a ton of law school programming. What stuff are you doing as part of your rollout and, more generally, in the LAP?

Law school programming has always been and we’ll continue to be an integral part of our work. We have visited more than 30 law schools. We’re excited to visit some new schools, including my alma mater, WashU Law where I haven’t been back since graduation. We have a couple of types of programming. The programming we did in the fall 2022 everywhere was like fixing our clerkship system or improving the clerkship system.

Talk about issues you might encounter and resources that exist and do not exist. Questions you should ask before clerking, becoming an informed consumer of clerkship information, downsides of clerking, which are never discussed and then talking about our resources. A lot of it was more diversity-focused, so increasing diversity in the clerkship system through access to transparent information.

Of course, there are some nonprofits who work on diversity in clerkships, though not exclusively. I think there is a void even there in that transparency is the missing piece in conversations about diversity. There’s only so much you can diversify if you’re not empowering students with access to information. We’re continuing with the diversity messaging and also doing some events that are very focused on asking the right questions before clerking.

The questions we ask in our post clerkship survey, while modeled off what a handful of law schools do internally, are intended to elucidate some of the candidate information you might not even think to ask. I was reflecting on the questions I asked when I was applying for clerkships and nobody told me to ask how a judge provides feedback and what the judge’s relationship is like with their clerks. Did anybody leave their clerkships early? Stuff like that. Things you might not think to ask, things you might not be comfortable asking.

We want as many students as possible to consider clerking or to pursue a clerkship, but we need to find the right clerkship opportunity to ensure good matching between judges and clerks. Not every clerkship is a good fit for every clerk or judge. There is no good way to know that right now. On the aspiring clerk side, that starts with asking the right questions going into your clerkship.

It sounds like you’ve been busy. That’s great.

I can’t remember the last time I took a day off or something.

One of the reasons why, aside from that wonderful update as far as what Legal Accountability Project has been up to generally and some of the things that we talked about a little before when you were on the show, I understand that there’s even yet something else new going on in terms of a pledge that you’re starting to approach judges about. If it’s good for you, let’s launch into that because I know that’s something that Judge Nazarian is involved in, and that’s his connection for the purpose of having both of you on the show. Let me stop talking and let you tell us what’s going on with the legal accountability pledge.

Is that question for me or for Judge Nazarian?

Let’s start with you because it is tied to LAP. I do want to know about Judge Nazarian’s connection to it and certainly get his perspective on it.

Judge Nazarian and I have been working on this new initiative tied to the clerkship database called the LAP pledge, which is basically judges signaling a commitment to the transparency and diversity principles of our clerkship database publicly by agreeing to send out our post-clerkship survey to their past clerks and their current ones pledging to send it to future clerks at the end of their clerkships. They’re also listed on our website by name as pledge shakers and they’re noted in the clerkship database. Students can search and filter by judges who are pledge takers.

We want to ensure that our clerkship database is representative of all state and federal courts. We also want to increase laps visibility with the judiciary because sometimes those folks are hard to reach, especially in the federal judiciary. I think this is why Judge Nazarian and some other board members are helping me with this. We want to answer the question, “What do judges think of LA’s clerkship database?”

As I am speaking with law schools and Judge Nazarian has been in some of those meetings too, that is the first question law school admins want to know. What do judges think of the database? Sometimes it’s a good faith question. Sometimes, they expect the answer to be negative. We want to answer that question with a general thumbs up.

Of course, there is some skepticism and that’s okay, too. That’s feedback as well. We can generate only so many surveys through our channels, reaching out to law clerks, social media, word of mouth. What I started doing pretty soon after we launched the survey link is I started reaching out to judges informally and asking them to send out our post-clerkship survey and they were doing that. We’re basically now formalizing what judges were already doing informally.

I pulled up the list of judges who you’ve identified on your website as founding pledge takers. Of course, I see Judge Nazarian as number one on the list. I also see previous guest Judge Karin Crump from here in Travis County, Texas. Also Judge Mike Englehart from Harris County, Texas. It looks like you’re covering the waterfront. Judge Dillard also a previous guest. Definitely connections.

He’s going with me to Notre Dame Law, so that’s a big event with ACS and Feds Talk. We’re excited.

You’ve garnered some support from the judges who are willing to attach their names to this. I do want to hear I think next from Judge Nazarian about his involvement and his comments on it. I see that we’ve got some Texas trial judges here. Obviously, you’re not limiting this to the traditional appellate clerkship. It seems like you’re opening it up to other people who have worked maybe as a staff attorney for the judge. This is geared towards lawyers, though, and not administrative staff and that thing.

That’s correct. It’s geared toward law clerks, though many judges have asked us to open this up to staff attorneys and also to interns. The interns are probably a year 3 or year 4 project. Staff attorneys, yes. For example, Judge Dillard hires staff attorneys. He’s taken the pledge. His staff attorneys have filled it out. We want the database and the survey responses to be representative of all levels of courts, all states, state and federal. That’s why we’re doing it.

Judge Nazarian, tell us from your perspective why the pledge is important. You’re connected to the Legal Accountability Project anyway, but let’s hear it from the judicial perspective here and particularly yours as a supporter and a founding pledge taker.

I think some of the concern, skepticism or questions about the project and the database from the very beginning has taken the form you all were talking about, which is concern, I think, especially in the part of the law schools, but even more broadly than that, about whether this is going to aggravate the judiciary. If judges are going to take umbrage at being included in this, if judges are going to think negatively about students or schools or anybody who participates in this information sharing.

Especially since by design, we don’t have any access to the information that’s out there about us in this database. As you can imagine, there is some concern that well people could populate this database with survey responses, information, or stories about me that I can’t see, verify, or respond to. Is this an opportunity for people to trash me in this public or not public setting where I’m at a complete disadvantage. It’s a version of the conversation that comes up anytime you start talking about official versions of judicial evaluation, how you do that, and what it means.

As the project gets going, as Aliza and others among us are talking to schools and people about it, it is one thing for me to say, “I am not worried about this because I think these transparency values transcend those concerns.” Maybe nothing’s going to be perfect and I hope there aren’t reviews trashing me in there, but if they are, so be it. The broader value is more important.

It’s one thing for me to say that individually, person to person, school to school or whatever, it’s one thing for me to say I have sent this to my clerk family and asked them all to respond. I think we came to realize that there needed to be some more broad visibility of judicial acceptance of this. It’s one thing for me to say to my colleagues, which I have long before the pledge, “I think this is important. Please have your clerks fill out these surveys and send it around.” It’s one thing to do that behind the scenes. It’s entirely another to say, “Here is a list of judges who have put their name on this.”

There are a dozen of us who are official pledge takers now, some other judges who have expressed visible support in way that that have let us name that. I think that’s great. The idea is now you can look at this range of judges from different states at different court levels. You have some trial judges, some appellate judges and a federal judge. Maybe that helps diminish the reluctance on the part of other judges to participate more directly. Perhaps it reduces the reluctance of the schools and other potential participants who say, “You’re never going to get all 30,000 judges in the United States to be on this pledge.”

You see real judges with real names who have said, “These values are important to us and we’ve taken these steps.” The website lists the asks 1 to 3. It’s more like two and they’re not even that big. The main one is a commitment to send the survey to our clerk families past and ongoing and then to allow our names to be attached to that. It’s about as simple as that. Since the pledge has rolled out, we’ve garnered a number of additional pledge takers. I’m pleased to say that Maryland is still best represented among the pledge takers and I hope that will grow and continue. It’s great to see Michigan is chasing us. Texas is making a run. We’ve got Delaware right next door.

I hope the willingness of some of these first movers to put their names on it breaks down the barriers a little bit. In all contexts, not just this one, when judges are asked to participate with nonprofits and with projects around the administration of justice, we have some delicate ethical lines to walk. We can’t be seen as using the resources or the office of the judiciary to promote other things or other purposes. I know at least the way our state’s ethical rules have been interpreted, there is a little bit of a birth around legal support, good judiciary-oriented nonprofits and projects. There may be some other states where the interpretations are a little more rigid.

There are good reasons why judges might be a little slower, a little more cautious about jumping out there on this. I think having real live verifiable judges with names and titles put their name on this again circumscribe, pretty simple list of asks, we hope it will break down some of those barriers. From there, broaden the range of current former clerks who have opportunities to fill the database, broaden the range of information out there, and further democratize the opportunity.

Several of our pledge takers have been quoted as saying, “The information is going to exist regardless. When I asked my clerks they thought it was a great idea and I found out they were already submitting surveys about me, so why not?” This is a way for judges to be involved with this. I do want to clarify we’re not trying to be mean to judges by saying they can’t access the database. The reason they can’t have access is because we know based on our experience with clerks and our experience with these law schools, judges having access to databases is chills reporting.

While this is certainly not a judicial misconduct database, the surveys are generally positive. Some are neutral and nuanced. There are of course many negative survey responses and those clerks would not have been empowered to share that information even anonymously in an internal database where judges could look at it.

As I talk about a lot with judges, clerks and all parties, the fear of reputational harm for speaking ill of a judge, the pervasive fear of retaliation by a judge is overwhelming. That fear is what has long kept clerks silent. We’re trying to overcome those fears because while we definitely don’t preclude clerk to student information sharing those one-on-one conversations can be quite valuable. Sadly, when I’m speaking with a lot of clerks who had negative experiences, they’re either not responding to that outreach or they’re whitewashing, they’re being a little bit dishonest when they talk about their clerkship experience and that is not helpful. While they’re conflicted, they, of course, feel bad, they’re also fearful and we need to address that. We need to make sure all the information is getting shared with the students who need it.

I neglected to mention former Chief Justice McCormack from the Michigan Supreme Court has attached her name to this. Also, a previous guest over our show. A little shameless self-promotion there. I also noticed the distinction. You’ve got the founding pledge takers listed there, and yes, we’ve got some impressive folks listed. I do see that a distinction between supporters of the pledge and maybe this helps my own understanding of it.

For example, Chief Justice McCormack. She’s no longer on the bench, but she has a group of former clerks out there and then the other two who are listed there are the state court judges, as I mentioned earlier, who don’t have traditional law clerks. That, to me, helps explain why perhaps they are not in the list of founding pledge takers. Is that right? Tell me more about that if I didn’t get it right.

Supporters are those who want their name publicly attached as supporting the goals of the database, but who don’t hire clerks. The two trial judges we mentioned before and of course former Chief Justice McCormack, she had clerks but their information is no longer relevant because nobody’s applying to clerk for her now.

We do see the Michigan Supreme Court there and of course, as Judge Nazarian pointed out, the appellate court of Maryland is well represented. Getting a state supreme court, I think, is pretty big and you’ve got a federal district judge listed here. I certainly appreciate that these folks are willing to attach their name to it, lend support to the cause, and send surveys to their clerks. Ideally, I’d have to think from a judge’s perspective: if you think you’re doing it right, you’re treating your clerks the way they should be treated, and you would want to have that feedback out there and available. Is that correct, judge?

That’s exactly right. In fact, long before I’d ever had the opportunity to meet Aliza or learn about this project, I’ve been trying to put this information out there for years. If candidates asked about it, I encouraged them to connect with my former clerks and ask them exactly these kinds of questions. I know in some instances that their common law school had also connected them, but it was in some measure because I had told them it was okay to do it.

I have some former clerks who are more visible that way and have been contacted several times over the years. I don’t know how many of my former clerks have filled out surveys or what any of them says. I hope the reviews are generally pretty good. I don’t have any fear about what’s in them, however they show up. To the extent that having that information out there, whether person to person or in this database, helps candidates decide whether they think applying a clerk for me would be a good thing for them, that’s all to the good.

Not every setting, not every judge, not every chamber’s environment is going to be ideal for everybody. I’ve had the blessing of 26 law clerks over 11 years between my senior clerks and my term clerks. They’re very different people. There’s an incredible range of personalities, skills and backgrounds. I’ve people with many years of experience before law school and everything in between.

Legal Accountability Project: The LAP database helps candidates decide whether applying for a clerkship would be a good thing for them. Not every judge or chamber environment will be ideal for everybody.

Every year has its vibe and hopefully, we build the best team we can every year. People should decide for themselves whether that’s a good opportunity for them and maybe they’d like something else. This is even more basic and maybe you don’t need the database to know this as much, but there’s a huge difference between what a clerkship in a trial court is like and what a clerkship in an appellate court is like.

Even in our system, our court is the appellate court of general jurisdiction. There’s common ground but there are big differences between the clerkship experience in two courts. Candidates should be thinking about what they’re going to do and by the end of the year, what they will have done and how that will translate to their career development and their networks and all the things they should learn from the clerkship.

Do you envision, Aliza, that there would be personal contact between an applicant and a former clerk facilitated through your database to maybe get a better feel, for lack of a better description, of how it would be to work for the judge?

We definitely think that is why some former clerks are putting their names in the surveys. That is fine by me. We certainly don’t foreclose that. I worry there’s too much emphasis on those one-on-one conversations, especially because of what we discussed earlier, that when the experience is negative, that information is not shared. We think this is a good first spot for you to do a lot of research very efficiently, either to create your big judge list before you apply or you want to clerk in a specialty court. Do you want a clerk in a specific state? You can look at all the surveys.

We don’t foreclose conversations but we think this is a better model. I think there’s been an overreliance on those individual clerk conversations. One thing we haven’t talked about is the discrepancy between some of these law schools in their law clerk alumni networks and how they are facilitating those interactions. Some schools do not have a robust network of former clerks, even some of the highly ranked one. Some law schools are very gatekeeping about how they make those introductions to former clerks and how they facilitate that. It is hard for students to connect with clerks and find people to speak with.

It seems like it might be beneficial for a former clerk and an applicant to connect with respect to a judge who may have some negative feedback on the database that might help alleviate concerns that a previous person might have reported. It does seem there could be some value there, but I understand what you’re saying about it. It’s not the intent of it to make that information available. Make those connections specifically. Do the former clerks give authorization to be contacted? You don’t try to gate-keep that at all, is what I’m guessing.

One of the last questions in the survey is, “Would you like your name to be visible to students reading these survey responses? We think that is generally understood to mean you’re okay being contacted. While I, of course, don’t want to overly focus on the negative experiences because many are positive, for those who did have a negative experience, I often hear they are very traumatized by this outreach. They don’t want to talk to students.

It is much easier for them to spend 10 or 20 minutes writing about their experience once and then be done with it, with no more outreach. Even for people who go to wonderful experience, some of them want to take 10 or 20 minutes and then not do these conversations every year. If you are a high-profile former clerk who clerks for a high-profile judge, you’re going to get a lot of outreach every year. That’s not a feasible use of your time.

Judge Nazarian, what would you say to judges who might be on the fence about this or reluctant about taking part of this or encouraging their former clerks to take this survey?

I think the message is that there’s value to the judiciary as a whole and value to all of us by broadening the range of information that’s available and it flows in in both or maybe all directions. Step one is to increase the number of students who are likely to consider clerking. One thing we haven’t discussed is enormous information and cultural awareness asymmetry among law students when they come in.

I have a daughter who’s a first-year law student, she lived the life. She comes in knowing who lawyers are. Her father’s a judge. I am not micromanaging her law school or job-hunting experience at all, but her whole life is about what this profession is and what we do. She’s lived through all that. You get students whether from total first gen backgrounds or even people who grew up in professional households and don’t have lawyers in them like I did who don’t know anything about what a clerkship is, what an internship is.

You get students who are from less represented backgrounds. I can tell you a story about my former clerks who ended up applying only because some professor pulled them aside and said, “You should do that.” It shouldn’t be as lucky and has haphazard as that. I think you could take a student who doesn’t know anything about clerkships, let them read around in this database and open their eyes to what clerking is. I think there’s a distinct opportunity to broaden the range of students who get interested in clerking who may not otherwise have done it.

Legal Accountability Project: By letting students read around the LAP database, they can discover what clerking really is and become more interested in it.

Step one is we grow the pool of candidates not only in numbers but in demographics. It isn’t exactly the topic of this conversation, but I’ve spent a lot of time trying to make my applicant pool more diverse because it was not diverse for most of the first years. It has taken real work and I can tell you some things that have worked better than others.

A big part of it is this information asymmetry, overcoming the lack of knowledge, and then some reluctance. If you have a student from a diverse background who’s going to be skittish about going into spaces where their folks have not commonly been or been invited, reading that here’s a judge who has hired law clerks over the years, that’s a judge that’s more inviting even if there’s no demographic congruence there. At the student level, there’s a huge opportunity for the pool to grow and that’s good for us.

On the other side, there are all kinds of famous judges and judges everybody knows about and for prestige or other reasons they might want to clerk for. There are 30,000 judges in the United States and a judge whose clerks have written favorably about them in this database who are not otherwise famous, I think has an opportunity to get candidates who didn’t know to look for them.

When they’re searching not on the gossip networks or reading online about who’s cool and who isn’t but learn a little more firsthand information about what this lurking experience like, all of a sudden, find themselves wanting to clerk for somebody they’d never heard of. Obviously, the reach is more regional for some law schools, but for others, it’s not. There’s no reason why if you are someone who’s not, who’s coming out of law school without any real geographic constraints, you might look elsewhere for a clerkship experience or go somewhere else after reading about it in a way that resonates with you. I think that creates opportunities for judges who might not be as well-known or as famous or perceived to be as prestigious by the Twitterati or whatever we call ourselves now to grow their pools and broaden their horizon.

The concern is not frivolous that you don’t know what’s in this database. It’s certainly possible. I think a judge who approaches this in good faith could say, “I would love to know if there are negative things in there so that I can address them so that I could respond to them so that I could help out.” In our employment lifetimes, we may all have come across situations where there was an employee in whatever context, in a law firm, in government or wherever who wasn’t a great fit. There’s more than one side to that story and only one side of that’s going to end up in the database. That’s a dynamic that’s there in the minds of some judges who are not going to get to read it, respond to it, or address it directly.

The broader transparency benefits and the value of that transparency transcends it. I’ve made peace with it. Aliza may remember when we first started talking about this. I did push some against the idea that the judges would have no access to this. I would like to think that you could have a world where judges could know what’s in there and react to it in good faith. I’m at peace with the idea that at least at this point, it’s better to set it up this way to build it and build the transparency. I’m okay with it being blind to me. Hopefully, that helps some other judges feel the same way.

I should say, of course, we continue to get questions of what if there’s one disgruntled former clerk who wants to share their very negative experience and it’s not representative. This is why we want judges to send the survey to all their clerks. This is why we want law schools to send the survey to all their alumni. We want it to be representative. Maybe there’s 1 negative review and 10 positive and students can use their best judgment and they can see whether it’s representative.

I will say we are not seeing outlier surveys, we are seeing patterns. Some of it is patterns of mistreatment. Some of it is patterns of judges who are wonderful and then some are judges where the clerkship is a positive experience, but the judge is not a great manager. While we’re not sharing the information and database with judges, I spend a lot of time interfacing with judges about improving their managerial styles.

I have successfully worked with several judges on that and the clerks and there are plenty of judges who want to improve. They just need some guidance. As we’re talking about the projects and increasing our visibility, we’re fostering those conversations, too. After I speak with judges, I hear from the judges and their clerks that the judge went back and said, “How am I treating you? What can I do better? What do you think of this?”

That is awesome. That is what we want. That is why we need judges reading this show to have these conversations, talk about the survey, and think about these issues. I am sure there are plenty of judges who mean well and don’t realize their tone or their feedback and how clerks perceive it, but it’s important to be mindful of that, too.

What this sounds like to me is that if you get enough information in this database, there’s going to be a law review article coming out, maybe not a law review article because I wouldn’t consider it necessarily scholarly, it’d be more practical. As a judge, how to properly manage your clerks and build relationships that will do whatever the goal is. Help your clerks have a positive experience, maybe something like that. I don’t know. Aliza, you say that you’re already seeing patterns and to me it’s like, how do you pull those patterns out and publish them in a way that helps judges see that if they have a hole in their self-serving ego or something that this is an issue, a blind spot maybe we should call it? I don’t if you’ve thought about that, but it seems like maybe this is where this could go.

I’ve definitely thought about that as a shorter piece since several judges have said to me that they follow my posts about judges improving their managerial style would like me to write something shorter. This is also a larger question for federal and state judiciaries about training in the federal system. I can’t speak to every state system. Judge Nazarian could about his. There is an outrageous lack of training for judges. It is basically here’s your robe and go and there’s no oversight over judges’ day-to-day dealings with clerks and judges are not realizing how they are coming across to their clerks.

The sad thing is that I’ve talked to some judiciary officials and some judges about this. The issue with performance reviews that go directly back into the judges’ hands is that what happens when they’re neutral or negative. They’re not going to be because clerks are going to fear sharing that. There’s a question about anonymizing that feedback. There does need to be a bigger conversation on training judges on their managerial style. Not every good judge is a good manager and that’s a problem because it’s a very small and hierarchical work environment.

As we transition into a little different topic here, I do want to say that looking at the website again, you’ve got your resources section, addresses. The folks who I think are target audiences and judges are listed there, resources for judges. I think one of the focuses of our discussion has been to bring this to judges’ attention. To fit with that, if a judge is interested, here’s this show or otherwise learns about the pledge, how can they sign on to give their support?

They should reach out to me via email and the survey link is available at Survey.LegalAccountabilityProject.org. We can share with them a PDF of the questions so they know exactly what questions are asked, exactly what they’re supporting. We can share some sample language for them to reach out to their law clerk family and they can tell us should we list them on the website? Can we list them in the clerkship database? What we’re seeing is all our pledge takers so far have agreed to all those avenues. We are happy to have judges privately sending out the survey to their law clerks. That’s good, too.

If judges from anywhere have questions about how this has worked about their own judicial, ethical professional concerns that flow from that, I’m happy to talk with them and to try to address those as well. Aliza knows she can point anybody, but especially judges, to me and I’m happy to talk them through it.

Before we break here, we would be remiss on our show if we didn’t talk to Judge Nazarian a little bit about the Maryland court system and appellate system because we’d love to talk about comparative judicial systems. Can you tell us how your system is structured?

We’ve had our high court, which dating back to 1650, that was called the Court of Appeals. We had a single appellate court until 1966. On the one hand, the Maryland Court of Appeals is the oldest continually operating appellate court in the United States. As I said, until 1966, it was direct appeal from our lower-level trial courts, which had a variety of different names across the state but now are known as circuit courts. Our circuit court is our trial general jurisdiction. We have a lower-level trial court called the district court.

Starting in 1966, the general assembly created our first intermediate appellate court, which then was called the Court of Special Appeals. It was designed on a model similar to what I understand you all have in Texas, Oklahoma, Virginia and a few other places. It was originally intended to be a criminal court because the volume of criminal appeals was overwhelming the court.

Why they didn’t call our court the court criminal appeals in the first instance, I don’t know. Maybe it was thought the criminal was special or whatever, but it worked so well from the outset that by 1971, it was decided to turn our high court into a tertiary court and to broaden the general appellate jurisdiction of our intermediate court. By 1975, that was all completed.

From 1975 until 2022, we had a high court called the Court of Appeals, just like in New York and DC, unlike most of the rest of the country where the Court of Appeals is the intermediate court. We had an intermediate court called the Court of Special Appeals, which was the court of general appeals. That was literally wrong, but it was our little anomaly and we enjoyed it until the fall of 2022. The voters approved a constitutional amendment that renamed our appellate court.

Now our state’s high court is called the Supreme Court of Maryland. Our high court judges are now called justices, which they never were before that. Our intermediate court is now called the Appellate Court of Maryland. We had to come up with this. As best I can tell, it is unique because we couldn’t become the Court of Appeals. We had hundreds of years of court of appeals decisions that were the high court decisions. We couldn’t all of a sudden starting in December of 2022. That name now refers to the middle court.

At best, I can tell a unique name on our court, but that’s the genesis of it. Our seven Supreme Court justices are distributed geographically. Our state is divided into 7 appellate circuits and there’s 1 justice from each of those circuits. Our appellate court has 15 judges, 7 of those and I’m one are tied to those same seven appellate circuits. The other eight are at large.

We have substantial group of retired appellate judges. We have mandatory constitutionally mandated retirement at 70 here in Maryland for all judges of all levels. We have a robust cohort of colleagues who are constitutionally disqualified from sitting in active service but are still active and ready to help out and can be recalled for service and frequently are.

One difference between our Supreme Court and the Supreme Court of the United States, for example, is that there’s a recusal, one of our retired judges can be plugged in. They can always sit at seven. Otherwise, our Supreme Court, it’s a tertiary court. They have it common in most systems a smaller docket by volume, but of course, every case they take is important. There are a couple of categories of cases, such as election law cases. It goes straight to them. When we had the death penalty, which we don’t have anymore, those cases went straight to the high court.

It used to be common for the Supreme Court to sua sponte or grab cases from us and take them directly. They stopped doing that as frequently years ago, but you can always ask for bypass and that happens sometimes. We’re the court of general appellate jurisdiction. Anybody who’s got a right to appeal comes here. We each are allowed to hire three people. Back to the clerkship piece of it, across the appellate chambers on both courts, there are some different models. There are some of us who have a judicial’s assistant or judicial administrator who’s not a lawyer. The rest is law clerks. There are some of us, and I’m among them who have three law clerks. There’s not enough administrative work to keep a full-time administrator busy.

A lot of that is a function of I do my own edit on the screen. I don’t add it on paper. I hired a senior law clerk who, in my case, have all been more experienced lawyers who are reentering the profession. Some after being with family for a number of years, some new to Maryland and looking for a platform to come into the profession here where they didn’t otherwise have any connections. There’s lots of different models.

Our circuit courtsm you may have seen on the list of pledge takers. The list includes a colleague Jeff Galler, from the Circuit Court for Baltimore City. Our state trial court judges have one law clerk each, so that’s another 175 law clerk opportunities across the state. Our two law schools here in Maryland, University of Maryland and University of Baltimore are overwhelmingly the schools that populate the courtships across the state.

I guess one other thing that I’ve learned about our courts and especially our appellate court, it is much easier to get oral argument scheduled in our court than it seems to be in a lot of courts across the country. We hear oral argument somewhere between two thirds and three fourths of the cases. If you’re represented and you want it, you’ll get it. If it’s in the criminal space, the public defenders in the attorney general’s office haggle out which cases they want to hear. In the civil space, if you are represented and you want an oral argument, you are basically assured to get it.

We ask each side in the rules if they want an oral argument, and sometimes they say they don’t, but if one side asks for it and there are lawyers, they’ll get to hear it. I have come to learn that is less common across the country, both in the state appellate courts and the federal appellate courts than I think we realize here,. We’re a small state. We only have one intermediate appellate court. We don’t have divisions. We don’t have it like yours with fifteen districts now.

Different courts in the same floor in Houston or whatever it is. We can’t create circuit splits. We only have one intermediate appellate court to generate opinions. We do distinguish between reported opinions, which are presidential, and unreported opinions, which now starting in July 2023, can be cited for persuasive authority if you want to.

One feature of that is that any reported opinion of our court has been approved by the court as a whole. It’s not quite like en banc. We actually do have an en banc procedure that hasn’t been triggered in my time in court. There is a court wide approval of any case that makes its way into the Maryland appellate reports and has any presidential value. It may not be a statement of consensus, but it’s a statement of sufficient comfort in the, in integrity of the precedent that it’s we’re agreeing to be bound by it. Of course, then our Supreme Court is welcome to do whatever they want with it. The shelf life may not be that long.

My last Maryland procedure appellate question is how do you pick your judges?

We have a version of the Missouri system here. We have a single statewide appellate nominating commission that the governor appoints. The smart aleck version is the statute actually doesn’t put any real constraints on the governor at all. The governor appoints people to the appellate courts and we stand for retention elections every ten10 years, but can’t be opposed. We don’t have any contested appellate judicial.

What’s happened for as long as I think I can remember or know is new governors come in and issue an executive order that more or less tracks the Missouri plan. There’s a statewide appellate nominating commission. They’re required to send names to the governor after the process of vetting. Unlike Missouri, they’re not limited to three. They have to submit at least three, but it can be more than that.

The commission solicits input from the different bar associations and anyone else who’s interested. There’s a detailed application that you fill out. I applied for the Supreme Court years ago. My application was up over 40 pages. None of that is the financial stuff. There’s an annual financial disclosure, but unlike the Feds that gathers a lot of that financial information from you before you even can get appointed, that’s less a focus of our process. There are a lot of detailed questions about your practice history, the cases you’ve worked on, the things you’ve done, and the activities you’ve been involved in. Ultimately, it’s up to the governor to appoint us.

After you get appointed, there’s confirmation by the state Senate, which has not been as politically charged in my lifetime here as it seems to be in Washington, DC and then in the next general election, you stand for the retention election and, but you come back up for that every ten years. It’s not life’s tenure. As far as we know, nobody in Maryland has ever lost the retention election. I know that’s happened in some other states. It happened in Iowa a bunch of years ago and they have a similar unopposed retention election. It’s possible and I think we all take it seriously, but there’s no history of people getting voted out of office of appellate judicial office in Maryland, at least in long as the systems around.

It’s super interesting to hear all of it, particularly about the Missouri-type plan that you all have and quite a contrast as I know you’re aware from what we have here in our state.

The one judicial office you can run for Texas style is the Circuit Court, which is our trial court of general jurisdiction. We have mandatory retirement at 70, so most vacancies come up in the middle of a term. The governor does appoint. Almost everybody who fills a seat gets appointed to one. You can run from the outside. There are examples from time to time of people who have run and won.

There are people who serve for a year, or it could be up to about two years by the time the process works its way to a general election. There are examples of folks who have gotten appointed by a governor and then lost in the election. We have one colleague here on our court who’s now retired. He was appointed to the circuit court in Baltimore County and defeated.

One of its funny features is that it’s nonpartisan and the judges’ names are listed alphabetically. His name is Alexander Wright. The first time, he lost to, I believe, Dugan. He’s appointed and runs again. He was the first African-American judge in that county. He ran a second time and lost to Kavanaugh and then was appointed to district court after that. He applied for and was appointed to our court and eventually then served as an appellate judge for a number of years.

There are examples of trial court elections that can get contested and challenging and there has been a task force looking at whether we want to continue having that one judicial election opportunity or have that be modified to track the way the rest of the courts work. That’s one other little anomaly of judicial selection here in Maryland.

Thank you so much to both of you for spending your time with us. You’ve been very generous with your time and it’s been interesting to hear about the latest of what’s going on with the Legal Accountability Project, particularly the pledge and learning a little about how the Maryland system is set up.

Our tradition on our show here is to ask for a tip war story as we wind up. Maybe a war story is probably not the appropriate thing to go for this considering some of the subject matter, but I do think maybe we should at least offer each of you the chance to give a parting thought because this is a little bit different nature episode for us. Maybe let me start with you Aliza. If you had a parting thought for us, please share it.

I’ve been in this clerkship space for a couple of years, doing this work full time. I’m careful to always encourage students to consider clerking and to expand their horizons in terms of who they might want to clerk for. It’s important to be mindful about who you clerk for, the relationship and the work environment you’re entering and think about where you want to launch your career and spend a year or two.

Be mindful about who you clerk for, ask the right questions before clerking, and do not grab at the first opportunity because it’s shiny or it’s there. Ask, “Is this where you want to launch your career?” If everybody becomes a more informed and empowered consumer of clerkship information, that’s how we’ll improve the entire system, both on the clerk and judge sides.

Legal Accountability Project: Be mindful about who you clerk for. Ask the right questions before clerking and do not just grab the first opportunity because it is shiny.

Thank you. Judge, I would love to put you on the spot for a war story, but I’ll let you off the hook easy.

I won’t give you a war story, but I will give you a little nugget, which is that one of the first cases I ever worked on as a summer associate at a law firm in DC that doesn’t exist anymore was at the time a pretty big case in Texas. It would turn into a Texas Supreme Court case called Transportation Insurance versus Morrell.

As a summer associate, I got to go out to El Paso to the trial court motion dismiss hearing in that case. While I was my third-year law school and in my clerkship, the case wound its way up the system and the lawyer who argued that case, Chuck Hadden, was a mentor of mine when I was back in practice for a number of years.

He had been an appellate lawyer in the Department of Labor in DC and was at the law firm. This is in the early 1990s, so I’m dating myself. One last thing I’d say is to piggyback on Aliza’s point, but to say it more broadly, one of the things I’ve noticed and learned in working with not only my clerks and my interns, but with a lot of law students is the importance of building in them a sense that they belong in this profession.

There are a lot of people who are coming to it because they’re interested in the law and in policy. They connect with the intellectual mission, but breaking into the profession itself is hard. We’re all mostly Type A people. We’re our own worst critics. I found that a lot of times people need encouragement to go after the things that they think they want and some reluctance to look themselves in the mirror and say, “I could work in this kind of law firm or environment. I could be a prosecutor , I could be a public defender, or I could be a judge someday.” Nobody is ever going to call you while you’re sitting on your couch and say, “We need a new judge in such and such county or on this court. Word is that you’d be good at it.”

It may have happened back then in certain ways. It does not happen that way in modern day America. The discipline of intentionality that you have to have to pursue your personal and your career goals is something that I think people have to learn over time. It took me a long time even going back to my clerkship days, feeling like, “This is something I want,” you eventually have to get off your chair and figure out how to get yourself there.

I think it’s important to plant that seed with people early in their careers. I’ve had conversations with my law clerks about, “Do you think that guy down the hall who doesn’t have two years of experience will not apply for the job that says two years of experience? He’s going to apply. He might not get it, but you know you won’t get it if you don’t apply.” I would urge people to try to overcome your natural reluctance and start from the premise that you belong someplace. You’re not going to get everything you ask or try for, but the way to make sure you don’t get it is to sit back and not believe in yourself in the first place.

I appreciate that. Those are both great points. Thank you so much and thanks again for spending the time with us. I think that our readers are going to enjoy all of this.

Thanks for having us.

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About Aliza Shatzman

Aliza Shatzman is an attorney and advocate based in Washington, DC who writes and speaks about judicial accountability, clerkships, and diversity in the courts. Aliza earned her BA from Williams College in Williamstown, MA in 2013 and her JD from Washington University in St. Louis School of Law (WashU Law) in St. Louis, MO in 2019. At WashU Law, Aliza was an Associate Editor for the Journal of Law & Policy. Throughout law school, Aliza interned at the U.S. Department of Justice (DOJ) in the Office of Vaccine Litigation; the U.S. Attorney’s Office for the Southern District of Illinois; the Bureau of Alcohol, Tobacco, Firearms and Explosives; and the Counterterrorism Section of the National Security Division. Following law school, Aliza clerked in the Superior Court of the District of Columbia (D.C. Superior Court) during the 2019-2020 term.

In March 2022, Aliza submitted written testimony for a House Judiciary Subcommittee hearing about the lack of workplace protections for judiciary employees, detailing her personal experience with harassment and retaliation by a former DC Superior Court judge. The intent of Aliza’s testimony was to advocate for legislation that would extend workplace anti-discrimination protections to judiciary employees.

Aliza’s writing on the subject of judicial ethics has been published in numerous law journals and mainstream publications, including the Columbia Law ReviewHarvard Journal on LegislationYale Law & Policy ReviewUCLA Journal of Gender & LawAdministrative Law ReviewNYU Journal of Legislation & Public PolicyLaw360Bloomberg LawAbove the LawSlateMs. Magazine, and Balls and Strikes. Aliza is also a contributor at Above the Law.

Reach out to Aliza via email at Aliza.Shatzman@legalaccountabilityproject.org and follow her on Twitter at @AlizaShatzman.