Politics & Legal Ethics for Judicial Clerks
Federal and state judicial law clerks may be subject to ethical rules that limit their political activity. it is important for lawyers and other judicial staff members to know the rules.
Ethics Rules Are Just Waiting to Ambush Opinionated Judicial ClerksLegal ethics for judicial law ethics seem like they should be simple: avoid conflicts of interest, keep everything confidential, and stay out of trouble. But a complex set of rules covers law clerk's involvement in political activities and expression of political opinions. Law clerks who don't know this mine-field, or who click "like" on the wrong Facebook status, could end up losing their job and tarnishing their career. These rules vary throughout the country and among the courts. Consider these examples.
John's wife Karen is a candidate for city council, a part-time position. John, a career law clerk to a federal judge in Texas, enthusiastically supports her campaign, not only because he's married to her, but because he believes in her agenda. When her campaign orders bumper stickers, he is the first to put one on his car. Bill violated his ethical obligations as a federal clerk. Matt, on the other hand, is a law clerk for a state judge in Texas and is running against Karen for that very seat. Political insiders believe that Matt is likely to win, given his high-visibility around town as the local GOP leader. Texas permits law clerks to run for office and hold office in political organizations, so Matt's job is safe.
Zelie clerks for a state judge in Arizona, where she is attending a fundraising dinner to support the campaign to replace judicial elections with a merit-based appoint system -- the kind of effort that clerks in her state are allowed to support. But Zelie's law school classmate clerks for a state judge in New Jersey and can't donate to that referendum without risking her job. Zelie's friend Elizabeth is a clerk for a federal judge. Zelie is concerned for Beth's job security because Beth recently posted a Facebook profile picture expressing her opinion on same-sex marriage and criticizing an elected official in a western state for supporting a "traditional marriage" referendum. Zelie is also concerned that Beth's Facebook profile identifies Beth as a Democrat, but is unsure whether this violates the ethical rules.
All of these law clerks perform the same job: they read briefs, research case law, draft opinions, and assist their judge in whatever capacity she needs them. All are highly educated; all have political opinions; but only some are allowed to express or act on those opinions. Law clerks are subject to different ethical restrictions on their political areas depending on the court they serve. These range from only bare-bones limits that prevent clerks, like any other government employee, from politicking on the clock, to complete bans on political activities and policies that limit personal expression on social networking sites.
Ethics rules for federal clerksFederal law clerks are subject to the Code of Conduct for Judicial Employees. Under the code, clerks are prohibited from both partisan and nonpartisan political activity, which means they cannot: act as a leader or hold any office in a partisan political group; make speeches for or endorse a party or candidate, whether partisan or nonpartisan; solicit funds for or contribute to a party or candidate; run for partisan office; or otherwise engage in partisan political activities. This means that federal clerks cannot even "wear political buttons or display political signs or bumper stickers." Although clerks are allowed to privately express their views, clerks must refrain from "publicly endorsing a partisan political candidate or organization."
Judicial branch employees with more limited access to judges, like those who work for the central court office rather than a judge's chambers, are permitted to engage in nonpartisan political activities on their own time "if such activity does not tend to reflect adversely on the dignity or impartiality of the court or office and does not interfere with the proper performance of official duties." But even these employees have only a handful of permissible activities, including voting, registering as a member of a political party, and expressing a personal opinion privately (as an individual) to a family member or friend. And what should a law clerk do if his or her spouse runs for office? The Federal Judicial Center offers the following advice to a hypothetical clerk named Ann: "The Code of Conduct governs law clerks, but not their spouses. In a situation like this, Ann should, to the extent possible, disassociate herself from her husband's political involvement. For example, Ann should not accompany her husband to political meetings, and if he makes campaign contributions, they should come from a separate bank account."
It is unclear at what point Facebook users are endorsing a candidate. What if they "like" Barack Obama? Practically speaking, liking a candidate has the effect of subscribing you to that candidate's news feed and making you a de facto online supporter, and media reports on the number of "likes" or twitter followers treat them as one and the same with political support. But the phrase itself is innocuous--one can like Obama or Rand Paul as individuals (or even as authors) without supporting their candidacy.
To help the federal judiciary and its employees navigate this tricky situation, the Judicial Conference developed recommended policies for individual courts to adopt. A sample rule states that: "The judicial employee may not participate in any social media that relates to any political issue, political activity or politician, whether partisan or non-partisan." Clerks should avoid "posting pictures on a social networking profile that affiliate the employee with a political party or a partisan political candidate." The United States District Court for the Central District of California has a detailed policy offered up as an example for others to copy: "Employees should never indicate a political allegiance on social networking sites, either through profile information or through joining political groups. Employees should not express views for or against any policy which is a matter of current party political debate. Employees should not advocate any particular position on an issue of current public controversy or debate."
Under these rules, a clerk must absolutely refrain from any kind of political activity or interaction with those who are politically activate on Facebook. These rules could be very difficult to observe, though, if one's personal friends were politically active. Two of my groomsmen have run for the state legislature, although neither was running while I was a law clerk. It's unclear whether I would have been allowed to post wedding photos on Facebook while clerking had my friends run at that time. I probably couldn't like their Facebook status when they announced they were running. Rules for state clerks are no less confusing.
State clerksThe state rules on law clerk political expression are all over the place. Jurisdictions like New Jersey and Delaware essentially prohibit all clerk political activity. Many others are more nuanced and include a mix of exceptions. For example, Arizona clerks are subject to the same political restrictions as judges, which prohibit most political activities, but allow them to engage in political activities to improve the legal system and to purchase tickets to political fundraising dinners.
This "improving the legal system" is a common exception to the rule limiting political activities. It is vague and full of problems. Advocating for an improvement to a state or county's indigent defense system obviously sounds like an improvement to the legal system, but what about an end to the death penalty? Or a campaign to restore the death penalty to a state that abolished it? Is advocating for a law that bans racial preferences and affirmative action an attempt to improve the legal system? If not, is fighting such a law? One person's improvement to the legal system is another person's partisan or ideological cause.
Some states are much more flexible and clear. Other than requiring the permission of the judge and prohibiting political work while on the clock, Nevada does not impose any rigid rules, only prohibiting activities that reflect adversely on the court or create the appearance of bias. Texas, in fact, does not impose any special restrictions on law clerks. And clearly Texans have taken advantage of this freedom: three out of the four people in one particular Court of Criminal Appeal's judge's chambers ran for judicial office in a single year.
Doesn't these restrictions violate the constitution?Some probably do. There's plenty of constitutional law supporting the First Amendment rights of judges to express some political opinions. Judge Alex Kozinski wrote strongly that: "A judge does not check his First Amendment rights at the courthouse door, to be reclaimed at the expiration of his judicial tenure." State codes restricting judicial speech have been struck down by a variety of state and federal courts. There is also plenty of case law covering the speech rights of government employees, and these restrictions are probably not likely to pass constitutional muster. Ultimately, the ethics rules for clerks are enforced by the judiciary. But given the close nature of the judge-law clerk relationship, though, clerks are unlikely to file suit against their judges for violating the clerks' First Amendment rights. And it is probably not in the best interest of their careers to do so.
Responding to this messThe best advice one can offer to a law clerk trying to navigate these rules is to err on the side of caution. Most clerks serve for 1-2 year terms, and it is best to simply muzzle yourself and de-politicize your Facebook for a limited time. This is a greater challenge for career clerks that can spend the better part of their lifetime serving the judiciary. It is time for the broader legal community to step forward. Here are two proposals.
First, greater awareness of these ethical restrictions is needed. This is important both in avoiding violations of the rules and in allowing politically-minded attorneys the opportunity to make an informed choice to not work for a judge. Certain law schools work very hard to convince their people to clerk for judges and to help them get clerkships; these schools should make sure that their students know of these ethics rules before accepting an offer.
Second, the rules need to be re-written, and the judiciary would probably benefit from a model code. The real reason to limit clerk's political activities is where it poses a risk to the judge's good name and unbiased reputation. The rules should be tailored to meet this requirement. This is where bar associations, and their various committees that deal with ethical issues, need to stand up. Until they do so, law clerks are at risk of making a mistake in navigating this minefield.
Jason C. Miller is a commercial, constitutional, and criminal litigator in Grand Rapids, Michigan. After law school, he clerked for a federal appellate judge. He is licensed to practice law in Michigan and Colorado. His book, Excelling in Law School: A Complete Approach, was recently published by Wolters Kluwer Law & Business.