Judiciary Weighs Guidance on Ethical Hiring for Law Clerks

The judiciary’s policymaking body is examining whether it should craft more guidance on judges’ hiring practices for law clerks, following an incident regarding the hiring of a clerk who was reported to have sent racist text messages.

The Judicial Conference asked its committee on codes of conduct to consider if “additional guidance is needed on the ethical duties of judges in the hiring of law clerks,” according to a report of its March proceedings that was made public on July 12.

The conference also instructed the committee on judicial conduct and disability to consider if any changes are needed to address the “potential incompatibility” of a judiciary rule and federal statute, the report said.

The rule in question allows the judicial conduct panel to review any order by a judicial council investigating alleged misconduct, but only to determine if a special committee should be appointed. Federal statute, however, states that a judicial council’s decision to deny review of a chief judge’s order “shall be final and conclusive.”

The March meeting came five months after the Second Circuit judicial council decided to let stand the dismissal of a complaint against two judges regarding their decision to hire the clerk who media reports said sent racist texts.

A complaint filed in 2021 by House Democrats against Chief Judge William Pryor of the US Court of Appeals for the Eleventh Circuit and US District Judge Corey Maze of the Northern District of Alabama into the hiring was initially dismissed. But the judicial conduct committee revived the issue in 2022 and asked that a special committee be appointed to investigate.

The two judges argued that the judicial conduct committee had exceeded its authority in directing the appointment of a special panel in light of the federal statute that orders are “final and conclusive.” The Second Circuit’s judicial council then requested guidance from the Judicial Conference and in an October 2023 decision, declined to revisit the earlier dismissal.

The Judicial Conference’s report on the March meeting didn’t elaborate on what issues had prompted the conference’s review, and a spokesperson for the Administrative Office of the US Courts had no comment beyond what was posted publicly.

—With assistance from Jacqueline Thomsen.