The Judge Pauline Newman saga reached a tentative end—or a respite—when the Federal Circuit imposed a year-long probation on the 96-year-old federal appellate judge. Aliza Shatzman of the Legal Accountability Project discusses the allegations of cognitive decline and workplace misconduct against her, and how the investigation and report may be a model for more transparency into judicial officers.
The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.
Other items discussed in the episode:
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis. Welcome, everyone.
Jeff Lewis 0:18
I am Jeff Lewis.
Tim Kowal 0:19
And I am Tim Kowal both Jeff and I are certified appellate specialists and as uncertified podcast co hosts we try to bring our audience of trial and appellate attorneys some legal news and perspectives they can use in their practice. If you find this podcast helpful, we always appreciate it when you recommend it to a colleague.
Jeff Lewis 0:33
Yeah, before we jump into this week's discussion, we want to thank case text for sponsoring our podcast casetext is a legal technology company that has developed AI back tools to help lawyers practice more efficiently since 2013. Casetext relied on by 10,000 firms nationwide from solo practitioners to amlaw 200 firms and in house legal departments. In March 2023. Casetext launched co counsel, the world's first AI legal assistant, co counsel produces results lawyers can rely on for professional use all while maintaining security and privacy listeners of our podcast enjoy special discount on casetext basic research at casetext.com/calp That's casetext.com/c a l p,
Tim Kowal 1:12
and today we're pleased to welcome Aliza Shatzman back to the show. Aliza Shatzman is the president and founder of the legal accountability project a nonprofit aimed at ensuring that law clerks have positive clerkship experiences while extending support and resources to those who do not. Eliza earned her BA from Williams College and her JD from Washington University School of Law after law school Eliza clerked in the DC Superior Court, Eliza writes and speaks regularly about judicial accountability, clerkships and diversity in the courts and has been published in numerous law journals and mainstream publications. Aliza, welcome back to the podcast.
Aliza Shatzman 1:54
Thanks for having me back.
Tim Kowal 1:55
Well, at least that your prior appearance was back in episode 39 of the podcast back in June 28 of 2022. The title of that podcast was harassment in the judicial workplace. At least the shots been discusses the legal accountability project. And last time, just to recap for our listeners, and to kind of create a launching off point for our discussion today. We previously discussed the discrimination and harassment that you face personally as a due to judicial clerk and how it negatively affected your career prospects. We talked about how you went on to create the legal accountability project kind of spurred on by that negative experience, and the legal accountability project as a resource for aspiring law clerks and other judicial employees. So I'm anxious to know how the legal accountability project is going a year on. And we also talked about why the Judicial Conduct and Disability Act is not working. So in the year that's passed, Alisa, give us an update on the kind of a movement that you're seeing in your work.
Aliza Shatzman 2:53
Yeah, I mean, thanks for having me back. It's been an enormous year we launched about a year ago. And we immediately went on a an enormous fixing our clerkship system tour where we visited more than 20 law schools to talk about judicial accountability, clerkships diversity in the courts to talk about the work we were trying to do, which was to create a transparency and dei Initiative, a centralized clerkships, database, legal tech that democratizes information about judges, so students have more information about more judges before they make a really important career decision about clerking. A year later, the database is up and running. We've been actively collecting post clerkship survey responses from law clerks and courthouses across the country since April, this resource will be available this school year to participate in law schools and law students. And we have created larger cultural change in the legal community. I mean, nobody speaks about clerkships and the judiciary the way I do, and I am still encouraging more people to speak candidly about their own experiences. But I have just been overwhelmed by the positive response from law students, law clerks, law schools, judges, we have a judge on our board of directors, we'll have multiple judges on the board soon, just people reaching out to say thank you to share an experience to support us. It's just been incredible. And I can see it from the many people who support our work, the real hunger for candid dialogue about clerking candid dialogue about the judiciary. judiciary has been in the news a lot more over the past couple of years. But we can't talk about the judiciary without talking about law clerks to folks who blankly judges and do their important work and who have a real lack of workplace protections or real lack of support. LAPD is changing that.
Tim Kowal 4:41
You said that many people are coming forward and sharing their experiences. Do you get a sense that there are there are a lot of people, former clerks with negative experiences like the one you had, you know, we don't have to go through the whole experience but just to give our listeners a flavor, it really clerkship is supposed to be A huge supercharge to a burgeoning legal career and yours was the opposite. It kind of wound up getting you blackballed because this judge not only terminated you before the end of your tenure there, but kind of tucked behind your back to others in the legal community and it set your legal career back. Are you finding that there are other people who are having similarly negative experiences because I think most people just think a clerkship is an unalloyed good, it can never be a bad choice.
Aliza Shatzman 5:27
Yes, that is the messaging we are trying to combat. Many clerkship experiences are positive, but not all of them are yet the negative ones are never talked about, and that makes clerks experiencing mistreatment feel that they are alone. It makes them feel shame, it keeps them silent. There are a lot of people sharing their negative experiences with LEP, many are sharing them in the clerkships database. A clerkship can be an extremely positive experience, and I encourage everybody to consider clerking but it's about being mindful about who you clerked for in a way that law students currently cannot. There is just a dearth of transparent information about judges as managers and clerkship experiences. And it comes down to this uniformly positive toxic messaging on law school campuses, where a negative experience is never shared. That means the candidate information is not getting from the folks who have it, the mistreated former clerks and the law schools, to the folks who need it students.
Jeff Lewis 6:27
Interesting. And let me ask you with a year under your belt in terms of the the database of experiences, in addition to avoiding law students stepping on a landmine and having a negative clerkship experience, Have you received any feedback from clerks? Who, how you've used the database to get a real good connection and a positive experience with their judge?
Aliza Shatzman 6:49
Glad you asked the question. So the database is not live yet. We're still collecting responses. So people have not used it to get information. But they have been hearing me speak and engaging with me for the past year. And I routinely receive outrage from law students and new young clerks thanking me and saying, because of me, because of the work I'm doing, they were mindful that who they decided to clerk for, and were able to find that gold standard positive clerkship experience, which is feedback I really appreciate because I want everybody to clerk but I want them to have a positive experience. And again, you got to be mindful about who you clerked for, because not every judge is a good fit, with every clerk for a whole host of reasons.
Jeff Lewis 7:30
Write it, when do you think the database was gonna go live?
Aliza Shatzman 7:34
I spring 2024 is our plan. We are collecting survey responses right now. And if you are a firm former clerk, you can visit survey dot legal accountability project.org to create an account and share your experience.
Tim Kowal 7:46
So how large Do you anticipate the database will be by the time it's live?
Aliza Shatzman 7:50
So we have said that we are going to launch it, we need to have 1000 survey responses to launch it, but we may not launch it right away when we have 1000 We're gonna launch it and we feel like it's ready to go. We think that is about twice the size of several law schools, internal clerkship databases.
Tim Kowal 8:06
And are you are you getting positive responses from law schools if they are that they're eager to use this database as part of their clerkship process?
Aliza Shatzman 8:14
So we're certainly getting mixed responses from law school, some are very positive, and I appreciate engaging with those clerkship directors. And Dean's as you can imagine, there's a mix of responses, I would caution that you should ask yourself why law school wouldn't want you to have more information and not less about judges and clerkships. We took strong tactics, we were pretty critical of law schools and the clerkship system last year, I mean, I still am because I think that law schools have been historically unwilling to change. We hope more will step forward sooner to make these changes. But there is certainly interest, everyone is certainly aware of the work that I'm doing. And for any feathers I ruffled I'll be circling back with those schools this year to talk about what we're doing. Now we have a working product that I can demo for schools. Last year, I was talking about an idea talking about making changes. Now here we have this concrete solution that will supplement law schools existing resources, and make clerkship directors and Dean's lives easier and better. So we think every school should engage with us, and we hope they will.
Tim Kowal 9:17
You said that you're you're seeing or at least you're hoping to affect a cultural change in the legal community to be able to share this kind of information. Are you getting a sense, you mentioned that there's some mixed reviews from from the law schools, they're entrenched interests, they have relationships and anything that that is new that comes along has the potential to ruffle feathers. So even if they they might whisper, you know, enclosed behind closed doors that yeah, I'm really in favor of what you're doing. But when we go out in public, you know, I've got to protect the people who are donors to the school or the people who support our school, the judges that we want to come to visit our school who might not be so happy about what you're doing. Have you gotten a sense of about how long this cultural change project will take?
Aliza Shatzman 9:57
So I mean, this is what I'm dedicating Mike. We're here to but I did want to circle back to the entrance, entrance relationships point that you made. Some law schools are going to message that we are not supportive of this yet, because we don't want to piss off any judges. So I want to say two things about that. You should not be sending your students to clerk for any judge who opposes transparency, who thinks they are above reviews, who does not want people to know what their chambers culture and workplace treatment is like? That's the first thing. The second thing is some law schools seem to be weirdly overestimating opposition from the judiciary, we're not seeing opposition from the judiciary, we're seeing many judges reaching out to law schools where they went to school and schools from which they hire to convey support. This is something judges support, because transparency helps everybody identify good fits safe work environments, it is a recruiting tool for courts. So the larger cultural change will take many years. But we're seeing such a shift over the past year, I'm just really hopeful about the work ahead. I think there's a real hunger for more candid dialogue about workplace treatment, generally, throughout the legal profession. I worry that the judiciary kind of resisted the me to movement. And so perhaps now they're getting the reckoning they need.
Tim Kowal 11:17
I thought it was interesting that you said that you're not actually seeing any opposition from the judiciary is that what you said, we're not seeing
Aliza Shatzman 11:23
any opposition from judges, we're not seeing any statements from the judiciary, which is fine, we're never going to get a judiciary wide endorsement. I speak with a lot of individual judges who are very supportive and who are speaking with Dean's and clerkship directors, which I appreciate judges know that this type of internal database already exists at a handful of law schools primarily in the T 14. And they know because they went to those law schools, so they use those databases, but they understand that there is not a good system for matching between judges and clerks. They're looking to get the best candidates. And they're certainly not getting diverse candidates, because historically marginalized groups lack the information that would empower them to make informed decisions.
Tim Kowal 12:07
It's an interesting distinction between the judiciary and judges. And because I wondered when you said it, that you're not you're not seeing any opposition from judges, if and I'm gratified to know that there are in the individual judges, you're that you're talking to express support for it. I wonder if there are other judges or if the judiciary as an institution, maybe wouldn't come out in opposition or in support? You know, maybe they want to take a neutral position. And I wonder what their position might be when they you know, when the judges or when courts are talking to their kind of partner institutions like the law schools that, hey, we're not going to formally take a position but we're not very happy about this. And we would prefer it if if you didn't do anything affirmatively to support this kind of movement.
Aliza Shatzman 12:49
I certainly welcome that level of scrutiny from the judiciary. And I'm going to point out that any judge who opposes transparency and who thinks they are above being reviewed, like employers or reviewed in other industries is not somebody you should be clerking for period hands down.
Tim Kowal 13:05
Well, that's that's the trick is always getting someone to take a position, you know,
Aliza Shatzman 13:09
but the thing about the judiciary versus individual judges distinction is this is what we see with like opposition to the judiciary Accountability Act, which would extend title seven judges and law clerks. Many individual judges think it should just apply to them. But it is the judiciary leadership's weirdly oppositional position that precludes progress makes me think that judiciary leadership doesn't represent rank and file judges.
Tim Kowal 13:36
Know Are you Are there any other new resources for for clerks and aspiring clerks, you mentioned that we talked about the database is expected to be live next spring 2024. And currently, it sounds like the resources are you know, attend one of one of your conferences, one of your talks to hear about the resources that are coming online and the cultural changes what else should should aspiring clerks and law students be be looking for from the from a legal accountability project?
Aliza Shatzman 14:04
So we think that law schools are the ideal vector for change here because of their close relationships with the judiciary, they're closely intertwined relationship with clerkship advising. For me, it's about empowering law students and empowering law clerks to demand transparency, accountability, including from their administrations, we are trying to galvanize student support, and I've received the feedback some law schools don't love me galvanizing their students but too bad. You know, we are galvanizing students support. So we think that every law student group who brings LAPD to campus should be circulating a petition or a sign on letter should be meeting with their administration to demand they participate. And if they're not going to participate, you should ask why not? Why don't your law schools want you to have more info that judges for me it's really about empowering the next generation of students and clerks leaving the profession better than the way I found it.
Tim Kowal 14:59
On Another recent episode, Jeff and I did episode 90 Back in June of this year, we talked with appellate attorney Ben Schatz about the new California appellate bias prevention committee. Our Supreme Court Associate Justice Martin Jenkins heads up the new bias prevention committee, and its mission is to promote an appellate court environment free of bias and the appearance of bias. And I thought I would ask you a question, because the first question that committee wants to answer is what is the best way to promote an appellate court environment free of bias? It's calling on all people in the in the legal community to help answer the question of what types of misconduct should it be looking out for and this is specifically in the appellate court community. So I'm wondering if you are seeing anything in your work with the legal accountability project that might be specifically helpful to this to this California appellate bias prevention committee about looking for, you know, what sorts of misconduct, what sorts of problems can we be mindful of and looking out for in the appellate court system? I think the
Aliza Shatzman 16:03
two best ways to prevent judicial BIAs are on the front end to appoint better judges treat them as managers running a small workplace, not just folks whose judicial philosophy we agree with then on the back end, investigating and disciplining judges who are found to have engaged in bias practices, sending a message that we take all forms of misconduct bias being one seriously right now, I worry that Judicial Conduct Commission's in a variety of investigatory functions just do not take various misconduct seriously enough, judges are getting a free pass. And that sends a message that you can engage in misconduct and you will not be disciplined. So we need to take misconduct more seriously.
Tim Kowal 16:46
All right, there is a there's there's been some recent news and the legal community, I thought you mentioned this, and it relates directly to your work with the legal accountability project has to do with the judge Pauline Newman saga, and this was Judge Pauline Newman is a appellate judge on the DC Circuit Court of Appeal. And she has been subjected to an investigation over allegations of her perceived cognitive decline. She is remind me 96 years old and is not willing to step down from her role, despite some allegations that there's been extraordinary delays in her issuing her opinions and other concerns about her mental fitness that have been raised by numerous interactions with court staff. And I wonder Elisa, could could you give a little bit of a taste of what the complaints have been because part of the resistance that you've encountered or that you're trying to come back in the legal culture is is against is that is that bias towards kind of insulating judges and giving them a lot of discretion over the way they do things? It's not a normal workplace, as we talked about, the last time you were on, and this kind of this investigation kind of cuts the other way, and it treats her a little bit more like a normal boss subjected to normal workplace restrictions and investigation processes. I wonder if you give us a little bit of a flavor of what has happened with the judge Pauline Newman investigation?
Aliza Shatzman 18:13
Sure. So this is such an important issue. Judge Pauline Newman has been a judge on the Federal Circuit Court of Appeals since 1984. She was a Reagan appointee, the first one to that court. She has served from almost 40 years and she's had a very storied career. I'm not a patent expert, but I know she's a prolific dissenter. She's had a wonderful career. But over the past couple of years, she's exhibited substantial and concerning delays on her calendar in terms of handling cases and issuing opinions, and she's issuing fewer opinions than her colleagues. She's handling a smaller caseload. She's also exhibited confusion and forgetfulness. There allegations she's been mistreating her judicial assistants and law clerks. There have been several clerks who quit recently. She also violated the confidentiality provision of the employee dispute resolution or EDR. Plan. So in March, the Federal Circuit Judicial Council, which is led by Judge Kimberly Moore, the Chief Judge announced that they were investigating judge Newman for these issues, but she has refused to participate meaningfully in the investigation into her alleged disability. And that means that she may have a disability a mental some sort of mental or cognitive decline that precludes her from efficiently exercising her judicial duties. She refused to accept service and she instructed her mailroom not to accept any orders of service.
Tim Kowal 19:42
She accept Service of the demand for the investigations. Yes,
Aliza Shatzman 19:46
she refused to participate in a medical evaluation or provide medical documentation. The investigation was eventually expanded to consider whether her refusal to participate was evidence not just of a disability. But of misconduct, then it was narrowed again. They got rid of the disability inquiry because she refused to participate into it. Over the summer, Judge Newman sued her colleagues in federal court alleging violations of her first Fourth and Fifth Amendment rights. That case was pushed to mediation, which was unsuccessful, apparently as of this week, and then the Federal Circuit Judicial Council, a three judge panel recently issued an enormously lengthy report and sanction recommendation. It's more than 100 pages with like 200 pages of exhibits sanctioning judge Newman, saying that her refusal to participate into the disability Ingres evidence of misconduct, she will not be able to hear any new cases for one year. So this is important because all judges exhibit the wear and tear of aging. This is not explicitly about Judge Newman's age, but she is 96 years old. She took the bench knowing that the Judicial Conduct and Disability Act was the judicial complaint process whereby litigants, law clerks, attorneys, or judges could initiate investigations into their colleagues, she has refused to meaningfully participate. This is the process that exists is really appalling that she has refused to engage in it. She could respond by providing medical documentation and submitting to a medical exam. And as you review orders and opinions in this case, a lot of her delayed rulings delayed cases were pro se litigants, folks who do not have an attorney they have no window into the behind the scenes machinations of the courts. They have no recourse when the judge hearing their case maybe unfit to serve and therefore screwing up. And I think that is a travesty. It really puts into question the integrity of the judiciary, some number of judges are investigated each year, some number are disciplined, but they participate generally into the processes into their conduct.
Tim Kowal 21:59
Here, there are a couple of interesting things that came to mind when you were going over that summary. One about the delays. I recall, Jeff and I reported on the delays a year or so ago that we're coming out of the sixth district court of appeal here in California to the point where a very prominent appellate specialist here, John Eisenberg filed a I believe a petition or a complaint of some sort to the supreme court asking for asking for the court to transfer matters do something to fix this back backlog for issues that you that you mentioned, were of concern in the judge Newman case. These are people who need relief in their cases, they've been delayed for several years. And the Supreme Court didn't, as I recall, didn't do anything, I think ultimately, the sixth district but we ended up issuing a transfer order and transfer some of its cases, maybe two, maybe two, in anticipation didn't want any further bad press on the backlog. But the Supreme Court didn't give any relief here, which is a little bit different. Maybe just just juxtapose that with the judge Newman issue
Jeff Lewis 23:02
live. And I think the difference here, Tim, if it stopped me if I'm misremembering, some justices quietly retired that were in those districts, and perhaps that's why the Supreme Court didn't act because they knew those retirements were in the works.
Tim Kowal 23:15
Yeah, but it maybe that leads to the other. The other interesting thing you mentioned that there, is there a process for this, there's a is there a process for when staff or colleagues have a hunch that one of their judges is suffering a cognitive decline? And then they file some sort of complaint or some sort of report? And then I guess it's for the chief judge to decide whether they're credible enough to warrant an investigation, and then that triggers where are these processes codified? Yeah, so
Aliza Shatzman 23:43
the Judicial Conduct and Disability Act of 1980 are the JC MDX lays out the formal judicial complaint process in the federal courts, whereby a law clerk and attorney a litigant can file a complaint about a judge's conduct or alleged disability. But chief judges are also empowered to initiate investigations absent a formal complaint if people are informally reaching out to them, which it sounds like was the impetus in this case, that folks are reaching out informally to the chief judge to flag delays and other concerns about Judge Newman. So it is certainly codified is the JC MDX perfect, no, it is not. And some of the disability provisions are a little less clear and under utilize. One point of Judge Newman's lawsuit was that the Disability Act processes are a bit unclear as to what kind of documentation she needs to provide how an expert is selected to evaluate her mental fitness. Those are good points. The JC and DX should be clarified, but it is the process we have, and it's important that it be followed. And I'm glad that in this case, the Federal Circuit Judicial Council seems to be moving full steam ahead with this investigation. It's important we need to take judicial misconduct seriously As as well as judicial fitness is so important that the judges who are presiding over cases affecting litigants lives, livelihoods liberty, be fit to serve.
Tim Kowal 25:11
So the judicial account Judicial Conduct and Disability Act did its job in this case and in your view, but you do say that overall, it's it's not sufficient. So why couldn't this this case be a template for further investigations? Why wouldn't the legal Accountability Project use this case as a model of how the Judicial Conduct and Disability Act can be used to address a wide range of the kind of workplace problems that the legal accountability project has identified?
Aliza Shatzman 25:38
There are a couple of issues with the JC MDX one is a general lack of transparency. If you are a law clerk and you file a complaint, you are not really kept apprised of what is going on in the matter. It is also there are no protections against retaliation. So many law clerks based on reading the court documents, sounds like law clerks and attorneys and other folks participated in this investigation. There was really no protection for them should judge Newman decide she wants to retaliate against some of them for doing so. So we need to ensure better protections against retaliation, strengthening the Judicial Conduct and Disability Act and also engaging in more investigations under it would give law clerks and other folks that confidence that if they file a complaint, it will be taken seriously that it is worth coming forward and sharing your experience that justice will be done. So it is a model. But it is certainly not perfect. And sad that the JC and dx is really all we have. And it law clerks are not protected under Title Seven.
Tim Kowal 26:40
One other comment or thought that I had and maybe this was gratuitous, but when you know the outcome here is that Judge Newman was was sanctioned. She wasn't removed from the bench for because of any misconduct or because of cognitive decline. There apparently no findings in that regard. The judges do what appellate judges prefer to do as they use the process to make findings and sanctions rather than having to reach the underlying merits. And so judge Newman was sanction for her refusal to participate in the process. And I take it the the judges breed all breed the collective sigh of relief that they didn't have to reach the underlying merits. Well,
Aliza Shatzman 27:15
I mean, they reached that finding because they dropped the disability inquiry and they dropped the disability inquiry because judge Newman refused to participate. And I think it sets a poor precedent to drop that inquiry. It tells judges who are engaging in some sort of misconduct misbehavior that you should try to outlast investigators. And I really think that Judge Newman withholding medical information that implicates her ability to serve is misconduct.
Tim Kowal 27:42
Well, that does get to another. I mean, it is a very delicate thing to go and start making accusations or inquest into judges and their mental fitness. As I had mentioned earlier, before we started recording, I wanted to I looked a little bit into judge Newman's biography and she's uh, she has, as you mentioned, a very storied career and even even before she became an illustrious patent attorney, she had a very interesting story in her youth. She flew planes and drove race cars, rode motorcycles, she has a she got a double degree in chemistry and philosophy got a master's from Columbia and then a PhD in philosophy from Yale. She had a story similar to other educated intellectual women of her time or bosses tried to force her into becoming a librarian until she threatened to walk out she invented or helped invent colorful, dirt resistant synthetic fabric that she got patents for working as a research scientist in 1954. She took her savings and bought a ticket on a boat to Paris where she made a living for a while serving and mixing drinks on the Sand River, tell her until she ran out of money and came back and got her law degree at NYU Law School. And then, you know, as you mentioned onto the story career as a patent attorney and then became the first judge appointed directly to the Federal Circuit Court of Appeal. All of her predecessors had come to the court through the merger of the court of customs and patent appeals. She in 2015, Ruth Bader Ginsburg praised Newman for inspiring women with her intelligence, diligence devotion to a very difficult area of law, just a just a prolific writer, she was known as a contrarian on the court for always writing a lot of a lot of dissents and not in going against the grain. And so when we come to trying to, you know, perform armchair diagnosis of cognitive decline, what what is what is the normal behavior of a 96 year old former pilot, racecar driver, you know, world traveler, patent attorney, inventor and Maverick jurist, you know, how do we assess what yet she's not acting normally? Well, she made her her living, not acting like a normal person. She's an eccentric.
Aliza Shatzman 29:46
So I'm glad you brought up all that background. We clearly owe a debt of gratitude to folks like judge Newman, that generation of female attorneys. It is not personal about her but She is engaging in conduct that has larger implications for litigants, for her staff, where she to submit to a medical evaluation and clearly established that she is fit to serve. That will be fantastic for everybody. But she is refusing to participate basically spinning on a JC MDX and it gets to a larger issue of deifying. Judges and why we shouldn't we can both say Judge Newman has had this storied career and also, no judge should serve forever.
Tim Kowal 30:34
Yeah, how intrusive? Do you have a sense of how intrusive the medical and psychiatric examinations are? In the under the the JC and D act? To what extent that she has to submit and reveal a lot of embarrassing details about about her life and personal relationships and things? Do you have a sense of that and whether there might be some valid reasons for her to say, Whoa, let's pump the brakes a little bit. There's no reason for you to be to be probing into all of these these private sensitive personal affairs.
Aliza Shatzman 31:05
So it is not clearly delineated in the JC NDA. But I did want to clarify, judges are public figures, public servants, stewards of the people they serve. And when there is an inquiry into your fitness, you are expected to comply within reason it is the same type of cognitive exam that other people and other industries, high power positions, positions requiring mental fitness would be submitting to,
Jeff Lewis 31:34
like, perhaps pilots who fly planes. Yeah,
Aliza Shatzman 31:36
yeah. Good point. I was just gonna say that. Yes. Yes. I'm not sure that her objection is that it's overly intrusive. I think it's that she doesn't want to participate.
Tim Kowal 31:48
Well, yeah. As you mentioned, she refused to accept service in the first place. And let's let's move beyond the cognitive decline issues. And let me ask you do you know if there were allegations that we talked about, she was taking too much time and issuing her opinions paranoid and bizarre behavior suggesting potential cognitive issues where there are allegations that were more of the nature of just workplace harassment, discrimination? misbehavior?
Aliza Shatzman 32:15
There are some workplace issues here. Judge Newman has a permanent clerk, who was doing a lot of non judicial tasks for Judge Newman, driving her to medical appointments doing her grocery shopping, which are concerning, they're not mistreatments. But they are not things you should be relying on a law clerk for. But that permanent clerk was calling the judicial assistant at all hours of the night 3am phone calls demanding personal and judicial tasks. One Three and phone call, she demanded a 6am Wake Up Call from the judicial assistant judicial assistant went to the chief judge and sought reassignment, and he was moved outside judge Newman's chambers, at which point judge Newman basically said, come back or you're fired, or you'll be deemed to have resigned, he ultimately did resign. She was also pressuring one of her other law clerks to work on her disability defense, which she should not have been doing. She said the same thing to him, you know, if you he wanted to leave, and she said, Well, you'll be deemed to have resigned, she also resigned. So those are not to the level of mistreatment of some of the things I talked about. But this really goes to the larger issue of Judge as manager running a small workplace when one of your employees is mistreating another employee. Ultimately, it is on you to supervise and correct the issues. And I should also say that when the judicial assistant was trying to engage in the employee dispute resolution or ADR process and get reassigned, Judge Newman sent a mass email to 95 court employees criticizing him and naming him violating the confidentiality provision of the EDR plan.
Tim Kowal 33:58
Wow, are those facts allegations of the nature that could constitute a complaint under the Judicial Conduct? And I forget the rest of the the act, Disability Act Disability Act? Yeah. Could a complaint have been substantiated on those without the cognitive allegations and the delay in issuing opinions allegations?
Aliza Shatzman 34:19
It's a good question. I certainly think so. Yes. Okay.
Tim Kowal 34:23
Just getting back to the, to the public conversation about the judge Newman saga. There have been some some attorneys, professors and even a fifth circuit judge who have come to the defense of Judge Newman, Mercer University Professor David Eric stated that I saw judge Newman speak at the US Patent and Trademark Office three weeks ago, I was there speaking on patent ethics judge Newman was eloquent, coherent, cogent, and spoke passionately about various topics, including section 101, which requires a bit of mental agility. Other close watchers have noted that her opinions and conversation in recent years were as sharp as ever We're also in April 2023, the Federal Circuit Judicial Council unsealed orders on March 24 2023. Order alleging that unnamed court staff and judges had raised concern about potential impairments of Newman's cognitive abilities and other concerns. But I wanted to get to Judge Jones had an Fifth Circuit Court of Appeals judge either either Jones, in a letter subsequently published in The Wall Street Journal describe the refusal of the Federal Circuit to transfer the case to another circuit for review as inexplicable. So I wondered if you had any any comment on kind of the public reaction or the other the legal community reaction to this saga? And is this a it's an example in your view of kind of circling the wagons around in defense of judges in the institution? What do you explain? How do you explain the defense of Judge Newman given you know, we have this report that you know, she was clearly in the wrong by not complying with the investigation,
Aliza Shatzman 35:58
you're going a little trouble by the legal communities dialogue on this issue or failure to really flesh out some of the issues? Look, perhaps judge Newman, give some speeches, right? See occasional coherent order opinion, but judging is about the day to day nine to five work of being in chambers, managing your employees, handling your robust caseload and going and hearing oral argument. And it appears from the robust documentation by the Federal Circuit Judicial Council, that she is not doing those things. Of course, some of Judge Newman's friends and colleagues will come to her defense, but I don't fault them for that. I know some people who have and that is fine. But I one of the reasons I keep writing and speaking about this is I think we're really missing the mark here. At the end of the day, Judge Newman has not participated into the disability inquiry into her conduct. That is a problem. It is a larger problem, because there are implications for the litigants whose livelihood and liberty is at stake when judges who are potentially not fit to serve are continuing to preside over cases, it also raises larger questions about the implications of life tenure, and whether we should be encouraging younger, more diverse judges fresh blood to take the bench, and whether judges who claim to their seats beyond their capacity to serve are really precluding progress here.
Tim Kowal 37:29
Well, you mentioned that your word choice cling to their seats, maybe gets to the larger question of Judge Newman, as a federal judge, federal judges have lifetime tenure. Is that is that a conversation that you want to have whether lifetime tenure is proper, or whether there should be some sort of limit on that? And how can that conversation occur when the lifetime tenure is constitutional?
Aliza Shatzman 37:51
Definitely. I mean, in many state courts in 30 states, we have mandatory retirement ages or term limits. And I think we should certainly consider that for federal judges. Look, the Constitution never envisioned a process whereby judges would serve into their 90s. The laws have not and judiciary policy had not kept up with modern medicine. Judges may be living longer and serving longer, but that doesn't mean that they should. And so I think it's definitely time to have a conversation about term limits mandatory retirement age, it was once thought that when a judge reached a certain age, their spouse, family colleagues would encourage them to step down. That clearly has not happened here. But it is not happening. In the many other instances, we have judges serving well into their 80s and 90s. And why should they I mean, there's other things you can do after your judicial career. What is it about judging that makes them want to cling to their seats for so long?
Tim Kowal 38:57
Yeah, but a lot of octogenarian senators as well, yeah. There's
Aliza Shatzman 39:01
also a problem also problem. Yes, yeah.
Jeff Lewis 39:04
It doesn't have to be an all or nothing approach. You know, it doesn't. You don't have to just remove someone from the bench. There are lots of roles like mediation or administrative roles or mentorship type roles where maybe a judge who doesn't have the skills they used to have could take a smaller caseload or different types of roles administratively on the court so people can still benefit from the wisdom and experience of that judge. I totally agree. Yeah. Interesting.
Tim Kowal 39:33
Now, so now that well, at what stage are we in? In the judge Newman saga? We have the sanctions. She's on probation from the bench for one year. What do you expect will happen next we'll let's assume that the judge Newman stays with us for the duration of that one year probationary period. And let's say she decides to come back to the bench and resume her normal duties. What do you expect will happen at that point? When we have you on the pod guess next August 2024.
Aliza Shatzman 40:03
So we have these two parallel situations, we have the judicial investigation, which is now going up to the Judicial Conference for review, there are more levels of review of those sanctions into her conduct, then we still have her lawsuit in the federal courts, which is now out of mediation. And we're still figuring out what's going to happen there. Look, I hope over the next year, Judge Newman will step down. I worry a lot was left unaddressed in the sanctions recommendation. I mean, is she still supervising law clerks and a judicial assistant? Is she still getting paid? Have all of our cases been reassigned? Or what is this no new cases man has? Have all her existing ones been resolved? What does she do in chambers all day, every day? So we'll see. I think this is overall a model for how a judicial investigation should work, transparency, keeping a public apprised moving forward and a face of a judge's resistance. But we'll see.
Tim Kowal 41:08
Well, and that's a that was my next question for you. This is now that this investigation and the sanctions order, at least as on the book, this can be I guess, a model or at least a precedent for launching investigations into into judges in the future for alleged alleged problems and in their workplace discharge of their duties. So do you have any advice or hopes for for future investigations? I'm sure that a lot of a lot of folks hope that this was just a fluke. And they'll never have to hear about anything like this ever again. But I take it you have a different perspective on that.
Aliza Shatzman 41:41
I definitely have a different perspective. And I know there are other judges who think that more Locklear should be filing complaints that judges who commit misconduct because it makes a better fairer judiciary, one that inspires confidence, public confidence in the judiciary. So I hope law clerks experiencing mistreatment look at this investigation and feel empowered to file a complaint to speak with the chief judge to share their experience, because it is only by law clerks filing complaints that we will foster this, these types of investigations foster this type of transparency. I hope that every law clerk feels empowered to file a complaint to come forward to believe the judiciary takes their concerns seriously. I don't know if I always believe that. I think they sometimes take law clerks concern seriously. But I hope that we are empowering more law clerks to come forward. It is the only way we will clean up our judiciary.
Tim Kowal 42:39
Earlier we talked about one of the deficiencies in the Judicial Conduct and Disability Act is that it doesn't provide any whistleblower protections. So are there so I guess it depends on the discretion of the chief judge if a if a staff member or or clerk goes to the chief judge and says, Look, my judge is making me do 6am Wake Up Calls after she has me up till 3am doing doing work on an opinion draft. This is this is a problem, that clerk has to have confidence that the chief justice is not going to take that and just go down the hall and talk to the judge informally. And then it's going to wind up coming around and biting them in the in the rear end. Is that a legal cultural issue? Are there are Are there rules, court rules or guidelines that they can create internally to create those kinds of protections where the statute has not created them?
Aliza Shatzman 43:28
So the judiciary has to do more here? And I think one of it, there is not really a culture of discussing retaliation by judges, the judiciary starting to talk about workplace mistreatment, some, but there has been an unwillingness to talk about retaliation, and here's what it is, is explicit retaliation is a lot of files a complaint. The judge calls they're assumed to be next employer and says, Oh, that wachler wasn't great, or she was just okay that has the effect of destroying a law clerks career. And those actions by judges are what keep law clerks silent. So there needs to be a judiciary wide conversation about appropriate conduct, why retaliation will not be tolerated, but it is a larger legal community role in fixing this problem. I recently wrote in Bloomberg Law about how legal employers are part of the solution. You should not take a judge's reference as the be all end all of a law clerks potential employment, that should be a red flag if a judge is willing to disparage a former clerk. That is how we will empower more law clerks to come forward is we will say you should not fear retaliation, because judges are being trained on poor practices and best practices and illegal employers are being told that this is a red flag. That's a statement about the judges conduct, not the clerk's conduct, but it's really challenging. That is the reason law clerks do not come forward. They fear retaliation. That is that is the biggest reason
Tim Kowal 45:00
Will the will the judge Newman case, be an example that you can give to law students and law clerks about here? Here's how it can be done successfully. Well, this will this. assuage law clerks that look at can be done these, these law clerks did did it successfully and kind of protected their careers?
Aliza Shatzman 45:18
I will I think it does, yes. Also, the situation with the former Magistrate Judge Garza in the 10th circuit is also an example people cite of judicial judicial discipline done properly. But yeah, we still have an enormous way to go and empowering law clerks to speak out. We're looking at a handful of instances in which there has been a successful investigation and discipline, but just not enough. There is a real culture of silence and fear in the judiciary, one of deifying judges and disbelieving law clerks that starts on law school campuses, that messaging and it's about really changing the messaging there.
Tim Kowal 45:59
All right. Well, I just had one other question. And I think it's because I asked you before we hit record, and you said, I should ask you this question. Is there is there any fear of a floodgates problem that oh, now that now the judge Newman has been kind of thrown out on a year probation based on on these complaints? Now, anyone could go and throw out any judge based on charges of oh, they act kind of strange, or they I saw them kind of tipsy after dinner one night, or I saw I'm falling down the stairs. So they must be losing a step and needed needing to be put on probation or taken off the bench? Are you? Are you concerned that there's going to be a floodgates effect and just hundreds of Judge Newman type complaints come down the pike?
Aliza Shatzman 46:40
Good question, not at all. And here's why we've talked about this culture of silence and fear surrounding the judiciary, we do not have a culture of false allegations against judges, we have a culture of gross under reporting and fear. It is an enormous barrier that I push up a hill every single day encouraging law clerks who've experienced outrageous mistreatment, to share that with anybody. The idea that anybody would be saying anything false, is really just not a concern that I have at all. It's about empowering more people to share their experiences.
Tim Kowal 47:15
All right, any closing comments? Elisa, this has been a great conversation. I appreciate your coming on you have any other any other thoughts in closing and what's what's coming up next other than what we talked about for the legal accountability project.
Aliza Shatzman 47:27
So what's next for la p are clerkships database is actively collecting post clerkship surveys. So if you are a former clerk, and you want to share your experience with LAPD Visit Survey dot legal accountability project.org to share that experience. We're visiting more law schools this year. And we are going to be galvanizing students support on every campus. We're also trying to galvanize alumni support, judiciary support. If you are a judge, and you want to reach out to law schools from which you hire your alma mater and encourage them to participate. It's about conveying why transparency, accountability and diversity are going to benefit the entire legal profession.
Jeff Lewis 48:08
Hey, does your website have a wall of shame a list of schools who haven't yet made a decision to get behind your your database?
Aliza Shatzman 48:17
No, we're not doing that. It's about trying to make progress with every single school as much as I would love to talk about who is saying that like Elisa wants to abolish clerkships and how everybody has a positive experience and all kinds of crazy stuff. I mean, my loss will wash you has been saying it's our official policy not to warn students, so they're on the wall of shame.
Jeff Lewis 48:40
Okay, all right. There's
Aliza Shatzman 48:41
no I guess Oh, shame.
Jeff Lewis 48:43
I'll ask you offline whether my alma mater, a Loyola law school as participating in the process.
Tim Kowal 48:49
All right, basically get Eliza that's going to wrap up this episode. Again, we want to thank casetext for sponsoring the podcast each week when we include links to the cases we discussed. We use casetext daily updated database of case law, statutes, regulations, codes, and more listeners of the podcast enjoy a special discount on casetext basic research at casetext.com/help. That's casetext.com/C A L P.
Jeff Lewis 49:15
And if you have suggestions for future episodes or guests, please email us at info at Cal podcast.com. And in our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial.
Tim Kowal 49:26
See you next time.
You have just listened to the California appellate podcast, discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at Cao podcast.com. That's c a l podcast.com. Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us Again