On December 18, 2025, The Legal Accountability Project (LAP) took a significant step towards actual judicial accountability, filing our first Judicial Conduct and Disability (JC&D) Act complaint in opposition to Second Circuit Choose Sarah Merriam. Disturbingly, that is the second misconduct complaint in opposition to Choose Merriam in fewer than 4 years. And it’s the first time a federal decide has been publicly reprimanded for mistreating clerks, solely to engender a second misconduct criticism for comparable conduct — flouting each judiciary policy and a public disciplinary order. With this criticism, LAP circumvents each congressional intransigence and judicial department inaction.
In December 2023, Second Circuit Chief Choose Debra Livingston printed a whitewashed disciplinary order disposing of the primary criticism in opposition to Merriam. The laughable treatments delineated in that order — watching coaching movies; committing to treating clerks higher; checking in with Livingston periodically; and the Director of Workplace Relations (DWR) for the circuit — a clerk level of contact — would test in with Merriam’s clerks each six months by means of 2025 — had been toothless. It was actually the least the circuit might do.
Instantly thereafter, incoming Merriam clerks requested whether or not to withdraw from their clerkships. Sadly, for the reason that order misrepresented the clerk’s allegations, cherry-picking to color them within the worst doable gentle, incoming clerks had been misled to consider the clerkship wouldn’t be that unhealthy and opted to proceed anyway. Massive mistake. However there’s presently no exterior oversight over the judicial criticism course of — Congress has, unsurprisingly, abdicated its oversight responsibility over the courts — and, like most clerk complainants, the clerk didn’t have a lawyer always. So, the circuit misled the general public, portray the scenario as a character battle between decide and clerk fairly than the hostile work setting it was.
Between December 2023 and December 2025, LAP fielded troubling allegations from clerks — those that endured mistreatment, one who give up after only one month working for Merriam, and several other who withdrew from clerkship provides after studying the clerkship’s realities. LAP’s complaint alleges Merriam created a hostile and poisonous work setting — nothing just like the exemplary office the federal judiciary claims to foster. Chambers situations might have gotten worse after the general public reprimand. Clerks allege Merriam routinely bullied, belittled, remoted, and dehumanized them; yelled at them; and despatched unhinged emails in all capital letters. The criticism alleges Merriam’s conduct, together with sudden and unpredictable outbursts, is a part of an emotional rollercoaster of unpredictable temper swings.
Importantly, the criticism additionally alleges Second Circuit clerk factors of contact — the DWR and Circuit Govt — had been conscious of ongoing misconduct for at the least one 12 months earlier than this second criticism however didn’t report this to Chief Choose Livingston and urge her to open a second investigation. Frankly, those that knowingly and willfully conceal details about judicial misconduct are obstructing justice. There is a gigantic energy disparity, not simply between life-tenured federal judges and clerks, but in addition between clerks and judicial department officers. Clerks are notably susceptible throughout investigations, as a result of they sometimes lack authorized illustration, whereas going up in opposition to the total weight of the federal judiciary and its military of attorneys. Disturbingly, far too little about office conduct insurance policies is delineated in writing. That’s by design. It’s ironic, contemplating how a lot judges like to expound on course of and implement courtroom guidelines. Judiciary officers frequently fail to comply with their very own insurance policies or change the principles halfway by means of: however with out transparency round investigations, it may be difficult to allege procedural wrongdoing.
It seems that Livingston seemingly both knew or ought to have recognized about ongoing points in Merriam’s chambers, since she allegedly met with Merriam to debate office conduct, in response to the 2023 order. And, Livingston supervises the DWR and Circuit Govt, who knew of the misconduct. Circuit-wide willful ignorance by these in positions of energy who ought to know higher, is shameful.
Anyone can file a JCD complaint — together with regulation clerks, litigants, attorneys, and members of the general public — alleging a “decide has engaged in conduct prejudicial to the efficient and expeditious administration of the enterprise of the courts.” LAP filed this criticism as a result of we’re capable of shoulder the chance that regulation clerks consider they can’t. Frankly, clerks don’t do their greatest work when they’re being mercilessly bullied — risking hurt to litigants who rely upon orders and opinions issued from overworked and demoralized chambers. And it undermines public confidence within the courts when judges’ office conduct is so lawless, and when judges show such callous disregard for the legal guidelines they interpret.
Disturbingly, simply two or three clerk complaints are filed every year in opposition to judges. Whereas the federal judiciary misleadingly claims this means a scarcity of misconduct, that’s confirmed false by the judiciary’s own 2023 workplace conduct survey, launched in March 2025. These knowledge indicate as many as 106 judges mistreated their clerks in 2023, but just three clerk complaints had been filed that 12 months.
Why the discrepancy? Legislation clerks — and greater than 30,000 federal judiciary workers — are exempt from Title VII of the Civil Rights Act of 1964 and all federal anti-discrimination legal guidelines, together with authorized safety in opposition to retaliation for reporting. It’s easy: clerks don’t and won’t report misconduct till they’re protected in opposition to retaliation. The judiciary vociferously opposes extending Title VII protections to the Third Department, even whereas Congress prolonged Title VII to itself and the Executive Branch in 1995, as a result of exempting clerks from authorized safety in opposition to retaliation will additionally chill complaints. Judges can and do retaliate in opposition to clerks by intervening of their bar functions and by contacting employers to offer unfavorable references and blackball them from jobs. (That’s what happened to me, following my clerkship with the D.C. U.S. Lawyer’s Workplace 4 years in the past.)
The judicial criticism course of is flawed, nevertheless it’s the system now we have: utilizing the system is how we’ll change it. Importantly, since LAP is the named complainant, Merriam’s present and former clerks will probably be confidential witnesses: they’ll converse freely with the circuit, with out Merriam understanding who mentioned what to whom, higher defending them in opposition to retaliation. Troublingly, throughout prolonged investigations, judges’ clerks are not sometimes reassigned. For instance, in the course of the year-long investigation into former Alaska federal judge Joshua Kindred, who resigned in July 2024 amid threat of further discipline, after Kindred was credibly accused of sexually harassing clerks, they had been compelled to proceed working beneath him. So, LAP’s criticism requests that Merriam’s clerks be instantly reassigned to guard them, pending an investigation.
Clerks inform me Merriam shouldn’t be a decide. She can’t handle her chambers or supervise workers. However so long as judges like Merriam stay on the bench, they’ll get clerks: somebody is determined sufficient for the credential, or believes it received’t occur to them. Actually, a number of Merriam clerks didn’t suppose this could occur to them; want they’d listened when warned; and wouldn’t have accepted the clerkship if they knew how bad it would be.
Whereas federal judges take pleasure in life tenure “during good behavior” and may subsequently solely be eliminated by congressional impeachment, some resign amid menace of additional self-discipline. Kindred did. I hope to see the identical end result right here.
The judiciary has a harassment problem that nobody cares to resolve. The courts refuse to carry judges accountable for misconduct, flip a blind eye to recognized abuses of energy, obfuscate and willfully mislead the public, and stonewall Congress. Blame additionally lies with presidents of each events who’ve nominated however didn’t correctly vet judicial nominees — appointing them with complete disregard for who they’re as folks and managers.
However whereas the judiciary is perpetrating a fraud upon the general public, Congress — the department of presidency empowered to behave — refuses to act. Whereas it’s straightforward in charge Republicans for every thing that’s mistaken, a lot duty lies with feckless congressional Democrats, who’ve not solely abdicated their oversight duty over the federal courts however, frankly, don’t perceive what their obligations are. Congressional Democrats are obsessed with Trump — to the exclusion of every other subject. It’s ironic to see Democrats on the information demanding “accountability” for presidency actors who’re “above the regulation” and calling for “transparency” — accountability and transparency, apart from the judiciary. Democrats didn’t prioritize the courts: if they’d, our judiciary would possibly really be a trusted bulwark in opposition to creeping autocracy.
Members and their employees inform me this subject “isn’t of their legislative agenda;” they’re “too busy” to ship an oversight letter (whereas sending letters about every thing else); and “if it’s not about Trump, we received’t act.” But Congress has at the least 4 instruments in its toolbox — oversight, laws, appropriations, and the bully pulpit — and none requires them to be within the majority to point out some backbone proper now. Congress’s failure to behave shields judges like Merriam from accountability and perpetuates judicial department lawlessness.
Oversight
Any member can direct inquiries to the Administrative Workplace of the U.S. Courts (AO). Whereas members ship letters about numerous different matters, they’ve refused to do that, even after I drafted questions for them — together with one member whose constituent was one in every of simply two regulation clerk complainants final 12 months.
The judiciary enjoys an outrageous lack of congressional oversight. Because it launched its workplace survey ends in March 2025 — on the identical day a decide resigned amid misconduct allegations, not a single member has requested a single query about why as many as 106 judges committed misconduct in 2023, but just three clerks filed complaints that 12 months. Nor has Congress demanded to know who these judges are and why they’re not being investigated.
Democrats might maintain a “shadow listening to” (chaired by simply Democrats), which they’ve held on several other rule of law matters. If and when Democrats retake the bulk, the Home Judiciary Committee — which has apparently determined judicial department oversight isn’t in its job description anymore — ought to instantly maintain hearings. Majority members with subpoena energy ought to demand notes and paperwork revealing systemic misconduct that the courts might have withheld. And, when Congress calls witnesses, whereas judiciary management will stonewall, underlings like DWRs may have on-the-ground data from conversations with clerks about abusive judges, and an insider’s view of management’s obfuscation.
Laws
Congress ought to reintroduce the Judiciary Accountability Act (JAA), which might lastly prolong Title VII and whistleblower protections to greater than 30,000 exempt regulation clerks, everlasting courtroom employees, and federal public defenders. Congress must also reintroduce the Transparency and Responsibility in Upholding Standards in the Judiciary (TRUST) Act, which might amend the JCD Act so investigations can proceed even when judges step down to evade accountability. And, Congress ought to connect a Title VII modification to a compulsory spending invoice (or to the judiciary’s annual price range request).
Appropriations
Congress controls the purse strings and may use the judiciary’s annual budget request as a sword and defend. Congress ought to at the least threaten to zero out the judiciary’s price range till they implement significant reforms. And the Appropriations Committee ought to tie judiciary funding to benchmarks for progress. Final Might, AO Director Robert Conrad testified earlier than the Monetary Providers and Common Authorities Subcommittee: office conduct was the second merchandise in his written testimony. But not a single member requested about office conduct. Conrad will probably be again this spring: Congress ought to ask robust questions.
Bully Pulpit
Of all of the instruments at their disposal, that is maybe members’ best untapped energy. Congresspeople have large nationwide platforms to do new interviews, publish op-eds, and make the most of social media to boost consciousness, spark dialogue, and impact change. Their silence on this subject is shameful.
This 12 months, each Home member and lots of senators run for reelection. Congress believes they don’t need to act, as a result of constituents don’t know the judiciary is exempt from Title VII, don’t consider this impacts them, and received’t maintain them accountable by demanding motion or voting them out of workplace. Congress doesn’t perceive the courts affect all of us. Should you’re pissed off concerning the lack of accountability for judges who abuse their energy — or suppose it defies logic that your complete federal judiciary, which interprets our legal guidelines, is exempt from all office anti-discrimination legal guidelines — maintain your member accountable or elect somebody who will act.
The judicial criticism course of was not crafted with regulation clerks in thoughts. Frankly, it’s set as much as defend abusive judges from accountability. However for now, it’s the system now we have. I hope clerks see LAP’s criticism and are empowered to return ahead, as a result of fixing the system from the within is how we’ll create significant change. Sometime, the tide will flip: we’ll bear in mind who was on the fitting facet of historical past when it was exhausting.
It could be a stain on the judiciary to defend Choose Merriam from accountability beneath these circumstances, LAP’s criticism concludes. Pressuring the judiciary to behave requires all of us — regulation clerks, regulation college students, attorneys, members of Congress, and the press — to demand change and shine a light-weight on misconduct that’s traditionally been hidden. The judiciary has lengthy exploited clerks’ fears and benefitted from clerks’ silence. Let’s not give them that any longer.
Aliza Shatzman is the President and Founding father of The Legal Accountability Project, a nonprofit geared toward guaranteeing that regulation clerks have constructive clerkship experiences, whereas extending help and sources to those that don’t. She frequently writes and speaks about judicial accountability and clerkships. Attain out to her through e-mail at [email protected] and comply with her on Twitter @AlizaShatzman.
