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August 12, 2019 Feature

Resisting Shiny Trinkets in This New Digital Age: Judicial Interaction with Media Platforms

By Judge Willie J. Epps Jr. and Jonathan M. Warren

Never in history has it been easier to reach so many by doing so little. As one can imagine, the ability to speak instantly to the world by camera or keyboard can be both an incredible gift and an insufferable curse.

To politicians who act on behalf of the voters who place them in office, it may certainly be the former. Our elected leaders take full advantage of the infinite reach of traditional and social media around the clock. At 6:00 a.m. EST, MSNBC’s “Morning Joe” often begins with a report on the president’s latest tweet. Representative Ted Lieu, the Southern California Democrat and former Air Force JAG, and others, tend to respond to the president in real time. Lieu “has become a frequent presence on cable news and has amassed more than 1 million followers on his personal Twitter account, a platform from which he lobs rhetorical grenades at the president and other Republicans.”1 President Trump has about 60 million followers on Twitter and has been known to send as many as “five-dozen retweets . . . in about a thirty-minute timespan.”2

Mid-morning, the media exposure for politicians continues. Former Vice President Joe Biden’s first stop after announcing his 2020 presidential bid was the ABC morning talk show The View.3 Barack Obama became the first sitting president to appear on a daytime television talk show when he appeared on The View for an interview in 2010.4 Donald Trump has appeared on The View 18 times through the years.5 More than half of those running for president this cycle have appeared on The View in recent months.6

The afternoons are filled with Fox News, CNN, and NPR’s All Things Considered. The evenings and nights are filled with the PBS Newshour, network news, dozens of cable television shows, plus Stephen Colbert, Jimmy Fallon, and Jimmy Kimmel.

All day long, The New York Times, The Wall Street Journal, and other major daily newspapers are updated online, as the print versions seem out of date even before issues land on the truck for delivery.

Similarly, social media platforms are perpetually in motion, with Twitter, Facebook, Reddit, and others belching an uninterrupted stream of political content. Best (and worst) of all, these platforms require relatively little for any individual to post content that may be immediately seen around the world.

Legislative and executive officials understand the power and reach of the media and use these platforms to unceasingly communicate with their constituents. These media platforms help our elected political leaders propose, explain, discuss, debate, shape, pass, and implement new laws and policies. Legislative and executive officials are agents of the people whose primary function is to act as advocates for the best interests of their constituencies. The unwieldy bullhorn of traditional and social media, on the other hand, can act as a curse to the judicial branch for judges do not represent the voters. Rather, judges represent the law.

Media Platforms and the Judicial Branch

Unlike politicians who have the responsibility to debate, legislate, or implement contentious issues concerning public policy, judges must stalwartly resist the shiny trinkets of this new digital age and remain impartial adjudicators. Judges must continue to avoid catering to certain groups and taking public positions on controversial issues. Justice Ruth Bader Ginsburg eloquently opined on this subject while dissenting in Republican Party of Minnesota et al. v. Suzanne White, Chairperson, Minnesota Board of Judicial Standards, et al., a decision of the Supreme Court of the United States regarding the First Amendment rights of candidates for judicial office.

Whether state or federal, elected or appointed, judges perform a function fundamentally different from that of the people’s elected representatives. Legislative and executive officials act on behalf of the voters who placed them in office. . . . Unlike their counterparts in the political branches, judges are expected to refrain from catering to particular constituencies or committing themselves on controversial issues in advance of adversarial presentation. Their mission is to decide “individual cases and controversies” on individual records . . . neutrally applying legal principles. . . .

A judiciary capable of performing this function, owing fidelity to no person or party, is . . . an essential bulwark of constitutional government, a constant guardian of the rule of law.7

Public confidence in the judicial branch is imperative to the proper functioning of government. U.S. Magistrate Judge Barbara McAuliffe, Eastern District of California, serves on the Committee on Codes of Conduct of the Judicial Conference of the United States. She notes that any judge who participates in social media must follow at least two sources: (1) the jurisdiction’s code of conduct and (2) any “policies adopted by the judge’s court regarding social media use.”8 While local court policies on social media may vary widely, any given jurisdiction’s code of conduct generally stems from the American Bar Association’s Model Code of Judicial Conduct (ABA Model Code).9

The ABA Model Code was established to ensure the appearance and reality of judicial integrity.10 While politicians within the other branches of government are practically required to take positions on the controversies of the day, judges have the opposite duty. According to the four cannons of the Model Code:

[1] A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety. [2] A judge shall perform the duties of judicial office impartially, competently, and diligently. [3] A judge shall conduct the judge’s personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office. [4] A judge or candidate for judicial office shall not engage in political or campaign activity that is inconsistent with the independence, integrity, or impartiality of the judiciary.11

The Model Code does not specifically address social media use; instead, such issues are examined under the same lens as other issues involving judicial integrity.12 Every state has adopted a modified version of the ABA Model Code. However, only three have specifically amended their rules to address social media, while 17 others have issued advisory opinions.13 When judges disregard these mandated rules, disciplinary action is usually not far behind.

Improper Judicial Behavior

Unfortunately, many judges have proven unable or unwilling to resist the siren song of media involvement. Outlined below are several examples of judges who used traditional or social media to muck something up, and in the process degrade public confidence in the entire judiciary.

Traditional Media

The traps of traditional media still permeate the landscape for judges. In one recent case, a municipal judge participated in a phone interview with a newspaper reporter and stated he would be unable to perform same-sex marriages because it went against his religious beliefs.14 The judge was quoted as saying, “[w]hen law and religion conflict, choices have to be made. I have not yet been asked to perform a same-sex marriage.”15 Perhaps to clarify, the judge also noted, “I will not be able to do them. . . . We have at least one magistrate who will do same-sex marriages, but I will not be able to.”16 This interview caught the eye of state officials, who subsequently commenced an investigation and sanctioned the judge.17 The sanctions were later upheld by the Wyoming Supreme Court.18

A judicial candidate’s hopes were dashed in West Virginia after he mailed a campaign flyer to voters.19 The flyer included photoshopped images of his opponent with the president of the United States. The president appeared to be holding an alcoholic drink in a White House room decorated with party streamers. The caption read, “[w]hile [the] County loses hundreds of jobs,” with a similar sentiment expressed in more detail on the back of the flyer.20 The candidate mailed the flyer five days before the election and also posted it on Facebook.21 In a mea culpa (and after a judicial ethics complaint), the candidate removed it from his online profile and ran eight radio ads somewhat tepidly denouncing the flyer.22 He also apologized for any “misunderstanding[s] or inaccuracies.”23 Despite these attempts at corrective action, the Supreme Court of West Virginia was unmoved.24 The candidate was ultimately fined $15,000 and suspended for two years.25

The list goes on. A judge in New Mexico was formally reprimanded for authorizing the use of his name to endorse a local mayoral candidate in a newspaper.26 A Montana judge was suspended for his troubling statements to the press about the culpability of a 14-year-old rape victim.27 An Ohio judicial candidate was reprimanded and fined after making statements and posting photos that were designed to make the public falsely believe she was an incumbent judge.28 Another candidate in Florida was reprimanded and suspended for advertising a 20-year-old newspaper endorsement for her prior legislative campaign as evidence the newspaper endorsed her current judicial run.29 The paper subsequently endorsed her opponent.30

At this stage, it is important to note many judges successfully manage interactions with traditional media platforms. Richard A. Posner, a former U.S. Court of Appeals judge, gave multiple interviews on numerous topics during his storied career.31 Richard Gergel, a district judge in South Carolina, was recently interviewed about his new book.32 The interviewer specifically noted Judge Gergel would not comment on a high-profile case that was previously before him.33 Adrienne C. Nelson, the first African American justice on the Oregon Supreme Court, discussed the importance of diversity and other related issues during an interview without incident.34 Moreover, a U.S. magistrate judge recently wrote an article about prosecutorial use of investigative technology.35 Judge James Orenstein offered a thought-provoking discussion on how the rapid evolution of surveillance and technology has outpaced legislative regulation.36 Other instances of proper judicial conduct involving the traditional media similarly fill the record.37

However, the media have rapidly advanced from conventional newspaper interviews and mailed flyers. As the following judges can attest, social media platforms likely represent a brave new world for potential judicial missteps.

Social Media

The rise of social media platforms has created numerous new avenues for judicial digression. These issues are no small matter, as approximately 40 percent of judges (and 85 percent of lawyers) report using Facebook.38 Judicial impartiality, judicial propriety, nonpolitical activity, and judicial campaigns can all go awry in an impressively short amount of time behind a keyboard.39 Below are prominent examples of judges who have gone astray in each category using social media.

Judicial Impartiality

One of the main issues with social media is the speed in which a judge can thoroughly obliterate the appearance of his or her impartiality. For example, a judge presiding over a family guardianship matter was suspended and sanctioned for inappropriate behavior stemming from online posts.40 The case revolved around custody of a young girl. Unhappy with one of the rulings, the girl’s mother went online and posted derogatory remarks about the judge. The judge’s wife came across these negative posts and responded to them in kind. The mother’s attorney later asked the judge to recuse himself. Initially the judge agreed, stating he “ha[d] problems with [the mother’s] credibility.”41 However, he nonetheless remained on the case until its resolution, in part because he felt he had no control over the amount of child support payments the mother would be required to make, as her potential payments were set by statute. He also explained he wanted to save the parties and taxpayers money by avoiding the costs and inefficiencies associated with such a transfer. The judge was eventually required to “serv[e] a lengthy suspension from the practice of law,” while the Supreme Judicial Court of Maine also issued a public reprimand.42 The court noted the reprimand would hopefully deter similar misconduct in the future.43

A different judge found misfortune after commenting online about a wrongful death settlement.44 In South Carolina, the parents of a deceased minor settled a wrongful death suit with a local police department. A judge—who had the title “Judge” on his Facebook profile—posted that “[i]n the end it’s all about money. Always. Unfortunately, I see it EVERYDAY . . . once [the] c[hec]k is in hand, they’ll disappear.”45 Unsurprisingly, the post prompted an investigation into the Facebook account, which uncovered extensive political postings.46 Apparently, the judge had endorsed a presidential candidate, fundraised for a local church, and made other inappropriate posts.47 Ultimately, the judge admitted that, although he had not discussed the exact estate at issue, the community was nonetheless aware of the specific case involving the settlement.48 Moreover, he admitted his other posts were inappropriate.49 He removed the title “Judge” from his profile and received a six-month suspension.50

A recently reelected Arkansas judge and ordained minister sermonized on a blog about the immorality of the death penalty:

Premeditated and deliberate killing of defenseless persons—including defenseless persons who have been convicted of murder—is not morally justifiable. Using medications designed for treating illness and preserving life to engage in such premeditated and deliberate killing is not morally justifiable.

Any morally unjustified and unjustifiable killing produces moral injury. Beginning a week from today, and three days after Good Friday—on Monday, April 17—the political, religious, commercial, and social captains of empire in Arkansas will commence a series of morally unjustified and unjustifiable killings. Each death will be a new, and permanent, moral injury. These deaths will join the existing long list of atrocities, oppression, and other moral injuries associated with our state to cause people around the world to associate Arkansas with bigotry, hate, and other forms of injustice as long as human memory continues.51

The Supreme Court of Arkansas responded by permanently barring the trial judge from presiding over death penalty cases.52 The judge subsequently sued the Supreme Court for violating his constitutional rights, without success.53

Other cases involving an apparent lack of impartiality abound. For instance, a judge was sanctioned for commenting “[t]ime for a tree and a rope” below a post showing an African American man’s mugshot.54 A judge was sanctioned for posting about a speeding ticket received by Texas A&M football player Johnny Manziel.55 Another judge was sanctioned for commenting on a pending proceeding when he made a post on a closed Facebook group that began, “[h]ere’s the whole story. Please spread it far and wide.”56 A Louisiana judge was removed from the bench for persistently commenting under the username “geauxjudge” on a site called (a sports fan forum) from 2005 to 2014.57 He was found to have committed 23 violations, including at least 12 instances where he commented about pending proceedings.58 A New Mexico judge was sanctioned for posting on his campaign Facebook page, “I am on the third day of my ‘first’ first-degree murder trial.”59 He later posted, after the verdict but before sentencing, “[i]n the trial I presided over, the jury returned guilty verdicts for first-degree murder and kidnapping just after lunch. Justice was served. Thank you for your prayers.”60 An Indiana judge was removed from the bench for posting on Facebook inappropriate comments about her children’s father and his failure to comply with his child support obligations.61 And a judge received 45 days in jail for using his Facebook page to make personal attacks against the prosecutor in a criminal case.62

Appearance of Impropriety

The appearance of impropriety (or actual impropriety) can be just as damaging to the judiciary as judicial misconduct. One judge was sanctioned after a video was posted on YouTube that depicted him using a belt to hit his 16-year-old daughter.63 Another judge received sanctions for posting status updates from the bench and uploading a photo of his crowded courtroom.64 More egregious was a judge’s removal from the bench for graphic postings on MySpace, including his tough stance toward prosecutors.65 A separate judge resigned after facing allegations he exchanged sexually graphic messages, pictures, and videos with a woman on Facebook.66 Social media have also led to a host of improper ex parte communications.67 Moreover, a debate about a judge’s Facebook friends—both those “friended” before taking the bench and afterward—continues to play out across the country.68

Prohibition on Certain Political Activity

Next, despite explicit prohibitions, many judges have improperly engaged in political activity. One judge was involuntarily transferred for, among other things, posting photos and comments from the bench and having a link for an attorney’s campaign poster on his MySpace account.69 Another judge was sanctioned for posting, “[c]ast your vote in the Senate District 16 Special Election.”70 The judge went on to enthusiastically name on Facebook the candidate who would receive his vote.71 A judge in Kentucky was privately reprimanded for liking “the Facebook pages of lawyers, law firms, and judicial candidates.”72 A Texas judge was publicly warned for calling her opponent an offensive name on Facebook.73 A Florida judge was suspended for 30 days without pay for using social media to ask her friends to help her judicial-candidate husband.74 Finally, a judge in Utah found himself in hot water over comments about a candidate for president of the United States.75 Among other disciplinary issues, the judge posted unsavory remarks about the candidate online.76 He ultimately was suspended for six months without pay.77

Judicial Campaigns

Similarly, social media also loom large over judicial campaigns. In Florida, a candidate for judge hired a consulting agency to highlight her qualifications and attack her opponent’s accomplishments.78 The agency sent an email to voters doing just that: highlighting the candidate’s record while noting her judicial opponent’s legal practice was “limited to criminal defense–representing murderers, rapists, child molesters[,] and other criminals.”79 The judge doubled down on this email during an interview: “I completely respect, and I’m proud of our justice system, and while every person is entitled to a defense, [the candidate’s opponent] is not a public defender, and chooses to represent individuals who commit heinous crimes.”80 The agency went on to create a Facebook page devoted to attacking the character and legal career of the opponent. Florida’s disciplinary panel launched an investigation into the matter and found the email to be “inflammatory.”81 It also found the candidate had made comments about her opponent with reckless disregard for the truth.82 The panel concluded the only appropriate discipline was removal, and the Supreme Court of Florida ultimately agreed.83

Lastly, social media can negatively impact a judge’s career even when no misconduct occurs. In Texas, a recently elected judge mused a bit too directly about running for the Texas Supreme Court in an online post.84 He also filed paperwork with the Texas Ethics Commission outlining his new ambitions.85 Unfortunately, Article 16, Section 65, of the Texas Constitution states that declaring one’s candidacy for another office constitutes an automatic abdication of any official’s current position.86 Realizing his error, the newly former judge removed his post and assured his audience he wanted to complete his four-year term.87 Nonetheless, Harris County commissioners did not reinstate the judge, primarily due to concerns over his ability to be impartial in future cases involving the county.88

Recommendations for Judicial Conduct

While judges have been navigating traditional media outlets for decades, social media represent relatively uncharted territory. Any judge engaging with social media should not do so blindly. Judge McAuliffe explains that a “judge should keep in mind that there is no ‘one size fits all’ approach to the ethical issues that may be presented.”89 Judges should not only be cognizant of, but also “sensitive to[,] the array of ethical issues that may arise from the use of social media.”90

Here are a few considerations Judge McAuliffe recommends:


  • In all online activities involving social media, a judge should not reveal any confidential, sensitive, or nonpublic information obtained through the court.
  • A judge should analyze any potential post, comment, or blog as caution from endorsing political views, engaging in dialogue that demeans the prestige of the office, commenting on issues that may arise before the court, or sending the impression that another has unique access to the court.
  • Any comment or exchange between an attorney and the judge also must be scrutinized so as not to constitute an ex parte communication. A judge should avoid using social media to comment about the competence of a particular law firm or attorney or give the impression that a person or firm is in a special position to influence the judge.
  • On social media, a judge would be permitted to discuss and exchange ideas about outside activities that would not pose any conflict with official duties (e.g., gardening, cooking), yet the judge must always consider whether those outside activities invoke a potentially debatable issue that might present itself to the court or show that the court may not be impartial.
  • A judge should not detract from the dignity of the court by posting inappropriate photos, videos, or comments on a social networking site.91


These recommendations attempt to provide a brief ethical roadmap for judges on social media platforms. Nonetheless, all judges should be wary of social media, including friend requests, posts, comments, “likes,” “endorsements,” and perhaps even “shares.” As discussed above, such platforms represent the ability to irrevocably alter one’s reputation and employment status with the click of a mouse.


In each instance of a judge’s misconduct, the integrity of the entire judicial system is eroded. Numerous examples of judicial misconduct involving all forms of media have been thoroughly documented and well publicized. While politicians may thrive (and sometimes wither) in the media, the judicial branch is uniquely positioned in the government as neutral arbitrators of the law. Every judge should labor to ensure this status is maintained and strengthened in the public eye. 


1. Tal Kopan, How Southern California Rep. Ted Lieu Became Trump’s Top Twitter Critic, San Francisco Chron. (May 8, 2019, 5:16 p.m.),

2. Ed Krassenstein, President Trump Loses over 1000 Twitter Followers in Minutes After “Retweet Rampage,” Hill (May 1, 2019),

3. Amanda FitzSimons, How “The View” Became the Most Important Political TV Show in America, N.Y. Times Mag. (May 22, 2019),

4. Id.

5. Id.

6. Id.

7. Republican Party of Minn. v. White, 536 U.S. 765, 803-04 (2002) (Ginsburg, J., dissenting).

8. Telephone interview with the Honorable Barbara McAuliffe on May 30, 2019.

9. Model Code of Judicial Conduct (Am. Bar Ass’n Aug. 16, 2018),

10. Craig Estlinbaum, Social Networking and Judicial Ethics, 2 St. Mary’s J. Legal Mal. & Ethics 2, 9 (2012) (citations omitted).

11. ABA Model Code, supra note 9.

12. See ABA Comm’n on Ethics & Prof’l Responsibility, Formal Op. 462 (Feb. 21, 2013), (“A judge may participate in electronic social networking, but as with all social relationships and contacts, a judge must comply with relevant provisions of the Code of Judicial Conduct and avoid any conduct that would undermine the judge’s independence, integrity, or impartiality, or create an appearance of impropriety.”).

13. For a detailed discussion of state responses, see Shaziah Singh, Friend Request Denied: Judicial Ethics and Social Media, 7 Case W. Reserve J.L. Tech. & Internet 153, 154 (2016).

14. In re Neely, 390 P.3d 728, 735 (Wyo. 2017).

15. Id. at 734.

16. Id.

17. Id.

18. Id. at 753.

19. In re Callaghan, 796 S.E.2d 604, 612–13 (W. Va. 2017).

20. Id. at 613.

21. Id.

22. Id.

23. Id.

24. Id. at 637.

25. Id.

26. In re Vincent, 172 P.3d 605, 605–06 (N.M. 2007).

27. Inquiry Concerning Complaint of Judicial Standards Comm’n v. Baugh, 375 Mont. 257, 261 (2014).

28. In re Jud. Campaign Compl. Against O’Toole, 24 N.E.3d 1114, 1130 (Ohio 2014).

29. Inquiry Concerning a J. No. 14-488 re: Shepard, 217 So. 3d 71, 83–84 (Fla. 2017).

30. Id. at 74–75.

31. Adam Liptak, An Exit Interview with Richard Posner, Judicial Provocateur, N.Y. Times (Sept. 11, 2017),; Joel Cohen, An interview with Judge Richard A. Posner, (July 1, 2014),; Victor Feraru, Jargon, Legalese and the Bluebook: My Conversation with Judge Richard A. Posner, Huffington Post (Dec. 30, 2016),

32. Ralph Blumenthal, A South Carolina Judge Writes a Book About a Predecessor, an Unsung Giant of Civil Rights Law, N.Y. Times (Jan. 19, 2019),

33. Id.

34. Interview: Adrienne C. Nelson, First Black Justice on the Oregon Supreme Court, (Jan. 4, 2018),

35. James Orenstein, I’m a Judge. Here’s How Surveillance Is Challenging Our Legal System, New York Times (June 13, 2019),

36. Id.

37. Susan Percy, Q&A: Harold Melton Chief Justice, Georgia Supreme Court, (Mar. 1, 2019), georgia-supreme-court; Melissa Boughton, One-on-one: Future Chief Justice Beasley Talks About “a Life Full of Highlights,” NC POL’Y WATCH (Feb. 14, 2019), beasley-talks-about-a-life-full-of-highlights; Margaret Manetti, Interview with Judge Clare J. Quish, 22 Ill. St. B. Ass’n, no. 2, Oct. 2016, 2016/10/interviewwithjudgeclarejquish; Jane Tracy, Oral History Interview with Florida Supreme Court Justice James E. C. Perry, (Dec. 14, 2016),; Interview Judge Michael McSpadden, FRONTLINE (Dec. 16, 2003),

38. Singh, supra note 13, at 155.

39. See Carolyn A. Dubay, Public Confidence in the Courts in the Internet Age: The Ethical Landscape for Judges in the Post-Watergate Era, 40 Campbell L. Rev. 531, 552–53 (2018).

40. In re Nadeau, 178 A.3d 495, 499–500 (Me. 2018).

41. Id. at 497.

42. Id. at 500.

43. Id.

44. In re Johns, 418 S.C. 364, 367–68 (2016).

45. Id. at 366.

46. Id.

47. Id.

48. Id.

49. Id.

50. Id. at 366–67.

51. In re Kemp, 894 F.3d 900, 904 (Ark. 2018).

52. Id. at 904–05.

53. Id. at 910.

54. The Honorable M. Sue Kurita, Electronic Social Media: Friend or Foe for Judges, 7 St. Mary’s J. Legal Mal. & Ethics 184, 218–19 (2017).

55. Id. at 219–20.

56. Id. at 220.

57. Id.

58. Id.

59. Id.

60. Id. at 220–21.

61. Id. at 221.

62. Id. at 221–22.

63. Id. at 223.

64. Id. at 223–24.

65. Id. at 224.

66. Id.

67. Id. at 214–16 (compiling instances of inappropriate ex parte communications).

68. See Virginia Long, Words with Friends, N.J. Law., June 2018, at 60, 61; Singh, supra note 13, at 154; Benjamin P. Cooper, Judges and Social Media: Disclosure as Disinfectant, 17 SMU Sci. & Tech. L. Rev. 521, 527 (2014).

69. Kurita, supra note 54, at 230–31.

70. Id. at 231.

71. Id.

72. Id. at 231–32.

73. Id. at 233.

74. Id.

75. In re Inquiry of a Judge (Kwan), 2019 UT 19, 2, 6 (May 22, 2019).

76. Id. at 6.

77. Id. at 19.

78. Inquiry Concerning a Judge (Santino), 257 So. 3d 25, 30–31 (Fla. 2018).

79. Id. at 27.

80. Id.

81. Id. at 29–30.

82. Id.

83. Id. at 29–30, 36.

84. Reis Thebault, This Judge Resigned by Accident. His Party Had the Power to Fix It but Chose to Dismiss Him Anyway, Wash. Post (Apr. 10, 2019),

85. Id.

86. Id.

87. Id.

88. Id.

89. Telephone interview with the Honorable Barbara McAuliffe on May 30, 2019.

90. Id.

91. Id.

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By Judge Willie J. Epps Jr. and Jonathan M. Warren

Willie J. Epps Jr. is a U.S. Magistrate Judge for the Western District of Missouri and sits in Jefferson City. He serves on the Executive Committee of the National Conference of Federal Trial Judges. He is a graduate of Amherst College and Harvard Law School. Jonathan M. Warren is a term law clerk to the Honorable Willie J. Epps Jr. Beginning in August 2020, he will serve as a term law clerk to the Honorable J. Michelle Childs, U.S. District Judge, U.S. District Court for the District of South Carolina.