Judge Eleanor Ross, who serves on the federal bench in Atlanta, engaged in multiple acts of misconduct. She carried on a secret affair with an Atlanta police department officer for nearly two years, repeatedly had loud sex in her chambers, lied about her trysts, and obstructed the investigation. Each of these actions warranted a public reprimand and an impeachment inquiry. But one of the more stunning allegations has flown under the radar: Judge Ross routinely signs judicial orders her law clerks prepare without even reading them. Indeed, it seems she never even talks about these cases with her clerks, so likely has no clue what she is even approving. Yet the council that reviewed this case found no misconduct.
Let me tell you a not-so-well-kept secret: most judges let their law clerks do far too much. Take it from my personal experience. I clerked in a federal district court for two years immediately after law school. The judge I clerked for, who recently passed away, was a dedicated jurist and an honorable man, but he let his clerks have far too much autonomy. At the time, I was overwhelmed with how many important decisions turned on my immature judgment. In hindsight, I cringe at my mistakes that the judge did not catch. Judge Ross will likely lose her judgeship, either through resignation or impeachment. But the public needs to take a closer look at judges who have abdicated the judicial power to unknown law clerks.
The Eleventh Circuit Court of Appeal’s Judicial Council, which reviews misconduct complaints, interviewed six of Judge Ross’s former law clerks. They explained that the judge’s “longstanding practice was to handle all criminal case work without law clerk assistance.” This choice makes some sense, as Ross was a former prosecutor. This work is also predictable. Virtually all federal cases wind up with plea bargains, so the most difficult work concerns calculating a defendant’s sentence. This sort of judgment will be based in large part on experience and judicial philosophy. The judge I clerked for would allow law clerks to make recommendations but he always calculated the sentence himself after considering all the evidence.
In contrast with the criminal docket, Judge Ross had no oversight of the civil docket. All six clerks reported that Judge Ross “did not indicate to the clerk how the judge was inclined to rule on the motion or otherwise provide any direction.” Moreover, “it was generally understood that” Judge Ross “did not wish to discuss substantive civil-case related issues with clerks.” I suppose her time was better spent having loud sex in chambers.
To be clear, the Judge didn’t talk to her clerks about cases before they were assigned, and didn’t want to talk to the clerk while the cases were being considered. Worse still, it appears that the judge rubber-stamped virtually every civil order that came before her. The clerks relayed that Judge Ross “rarely, if ever, substantively edited civil orders the clerks drafted.” Indeed, the clerks were “generally unaware as to whether the Subject Judge reviewed pleadings or draft civil orders.” As proof, a law clerk “stated that on multiple occasions the judge emailed the clerk to docket an order within a few minutes of receiving it, indicating that the judge may not have had time to read it.”
Most civil cases in the federal system are resolved on motions without the benefit of oral argument. Judge Ross was likely able to get away with ignoring her civil docket unless summary judgment was denied and the case went to trial. At that point, she would have to catch up. A career clerk “recalled one instance in which, during the middle of a civil trial, [Judge Ross] made a comment indicating that the judge had recently, for the first time, read the order denying summary judgment in the case.” With good reason, the clerks felt “uncomfortable with the level of discretion they appeared to exercise in handling civil cases” especially “given their inexperience.”
Judge Ross offered only a partial rejoinder to her clerks. Judge Ross conceded that she does not review any of the filings before assigning a case. Accordingly, she “does not offer clerks guidance, in advance, as to whether a motion should be granted or denied.” The Judge maintained that she is “always available” to answer “substantive legal questions.” Though it is unclear how much help she can provide if she never read any of the briefs. Judge Ross further “insisted that draft substantive orders are reviewed, and, from time to time, needed corrections are identified.”
Indeed, it isn’t even clear what “reviewed” means in this context. She admitted “making edits to between 30 and 40 percent of draft orders.” So between 60 percent and 70 percent of the orders she signed had no edits. How often is any work product perfect when delivered? As any editor would tell you, the answer is never. If “corrections are identified” only “from time to time” then the judge is not reviewing documents at all. What about those orders that she edits? Does Judge Ross read the briefs, check the caselaw, or assess the legal arguments? Or does she simply proofread to find typos? I would wager she does little if any substantive work.
The Judicial Council that investigated Judge Ross’s sexual misconduct and dishonesty said little about the civil docket. The committee was “troubled by the law clerks’ assertion that the Subject Judge is not engaged in the resolution of civil cases (and, indeed, by the judge’s own admission of such a lack of engagement).” Yet, the council found that the “facts established do not support a finding of judicial misconduct.” Moreover, the council was assured that Judge Ross promised to “be more engaged in civil cases and more open to substantive discussions with law clerks.” But notice what the Judge did not promise to do: read the briefs, inform the law clerks how she was inclined to rule, and read every order before signing it. This is not much of a promise.
The public might be appalled that a life-tenured judge has delegated to a twenty-something law clerk the unchecked power to decide complex and impactful cases. But for anyone who has spent time in chambers, this sort of behavior is far too common. Recently, several judges got in trouble for publishing orders with AI-hallucinated cases. In each case, they blamed their law clerks. The truth is the judges blindly signed the orders without checking any of the substance.
Here, I feel compelled to disclose some of my own experience. The judge I clerked for had two clerks each year. The cases would be randomly assigned based on the docket number: one clerk would manage the odd-numbered cases and the other clerk would manage the even-numbered cases. During my two years there, I don’t think the judge ever told me in advance how he wanted me to resolve a civil case. To be sure, if I ever had any questions–and I had many–the judge was always willing to talk about the case. But I do not recall that he had read the briefs. The advice was more generalized.
When I submitted a draft opinion, he would always read it printed out on paper, and he would leave comments in the margins with his perfect penmanship. As best as I can recall, the comments mostly involved proofreading (then, as now, my work had typos). Occasionally he would write that my prose was not clear or that he didn’t understand some point. I do not remember many substantive comments. He did not appear to check my citations, or determine whether my legal arguments were fully supported by precedent. I also don’t think he checked the record to make sure my assertions were supported by facts.
At some point early in the clerkship, I had this painful epiphany. I realized that I bore so much responsibility for someone else’s life, liberty, or property, and I felt completely inadequate for the task. I recognized that the judge was unlikely to catch my errors, and it was up to me to get everything right. That is a stunning amount of responsibility for someone a few months out of law school. But, as can be predicted, I did not live up to that responsibility. One incident still burns in my mind.
I was assigned a fairly complex commercial dispute. The motion for summary judgment raised an issue of first impression for the court. I spent more than a month writing an opinion on this issue, which I found really interesting. In the end, I recommended that the court grant summary judgment on the novel claim. As I recall, the judge reviewed the opinion for typos and substance but as usual, didn’t question my bottom line conclusion. Shortly after the opinion was issued, the losing party filed a motion for reconsideration. I had never seen such a motion during my clerkship, but I realized it was bad. The lawyers relayed that the novel issue was raised for the first time at the summary judgment phase, and was not raised in the complaint. I can’t recall if this issue was contested in the summary judgment phase, but it didn’t matter. Under the rules of procedure, claims not raised in the complaint are waived.
I screwed up, big time. I remember having this sinking feeling in my stomach. I wondered whether I would get fired (not the first time and not the last time I would have that feeling). The judge, who was far more patient than I deserved, was not upset. He calmly said I should revise the opinion to remove the discussion of the waived claim, and he would reissue the order. We did just that, and the case proceeded. With the benefit of hindsight it is clear enough that the judge did not read the complaint, the motion to dismiss, or the motion for summary judgment. There was no way he would have caught my egregious error given his processes. At most, he read the opinion his neophyte law clerk put together.
This near-complete delegation of authority happens in every federal court in the country. That this practice is so common demonstrates why the Judicial Council was “troubled” but found no misconduct. I suspect that at least some, if not most, of the judges on the council engage in this behavior.
Judge Ross’s sordid affair, and subsequent lies, should be reason enough to remove her from the bench. But there should be more scrutiny of how she manages her civil dockets. First, it should be easy enough to compare how much time elapsed between when a clerk submitted an order and when the order was docketed. If only mere moments passed, that would be some proof that she did not even review these orders. Second, the court should compare the draft orders her clerk prepared and the final orders that are submitted. Again, this test would verify if she in fact reviewed a third of her orders, and determine how substantive those revisions are. This sort of inquiry might be labor intensive, but an AI app could process these inquiries in a few seconds. If she did not even offer this minimal scrutiny of her civil docket, it is possible that Judge Ross made further misstatements to the council.
Still, I don’t think this inquiry should end with Judge Ross. There should be a broader discussion of whether federal judges can blindly sign orders they do not even read. The Eleventh Circuit judicial council found this act to not be misconduct, but did not explain why. The President nominates, and the Senate confirms, federal judges with a lifetime position to exercise the judicial power. They are responsible for ensuring that people are not deprived of life, liberty, or property without the due process of law. Blindly signing an order prepared by a rookie clerk seems little better than flipping a coin to resolve a dispute. Perhaps it is common enough for Presidents to sign executive orders he does not read, or for members of Congress to vote on bills they do not read, but federal judges should aspire to a higher standard. The rule of law depends on it.
