Tuesday, January 02, 2018

Law Clerks, Judicial Power, and the Code of Silence

By Eric Segall

In Mike Dorf's recent critique of the district court decision dismissing an Emoluments lawsuit against President Trump for lack of standing, ripeness, and virtually every other justiciability doctrine ever sighted by person or beast, Mike dropped this little nugget: "didn't the law clerk look this over before sending it out the door ...?" This was a fair question given how illogical and unpersuasive the judge's reasoning was in this case. However, the chances are that Mike's question had the order reversed. What he should have asked is "didn't the judge look this over before the law clerk sent it out the door?" I explain below.

I clerked in the Northern District of Georgia from 1983-1985. I loved my judge who happened to also be the Chief Judge of the District at the time. He was a conservative Republican, and a man of honor, good judgment, common sense, courage, and fairness. He once enjoined President Reagan from sending a plane of Cuban refugees back to their own country where they were going to be persecuted. He was reversed immediately by the 11th Circuit, and then two weeks later he did it again because he was so affronted by the government's refusal to present their arguments to him. He was reversed again.

There were twelve federal district court judges in Atlanta at the time. I knew at least one clerk in every chamber. Eleven of the judges treated legal pleadings such as motions for summary judgment, motions to dismiss, and motions for judgment notwithstanding the verdict, in the same manner. A law clerk would grab the completed pleadings from a shelf or file drawer, decide how the motion, often dispositive, should be resolved, write a draft opinion, and then put it on the judge's desk.

Back then judges were supposed to resolve such pleadings within sixty days, and most judges did not want to see their names on the infamous Sixty Day List. In two years, my Judge reviewed and then signed my draft orders without changing a word on every occasion but two (one of them was the injunction against Reagan's plan). I never did an official poll, but the clerks in other chambers reported the same general practice. I often ask clerks about this today, and I hear that this practice is in no way unusual even now.

At the time, I was twenty-five years old, fresh out of law school, and not particularly wise, to say the least. I tried hard to follow the law, but I had never practiced a day in my life, and many of the legal issues I "proposed" how to resolve were quite complicated. My judge almost never did his own research. Although my Judge had great instincts, my statements of the issue, characterizations of the law, and proposed resolutions carried a lot of weight. Too much weight. Looking back, I am quite sure I made some pretty serious mistakes, not surprisingly, given my lack of any legal experience.

I also clerked on the Eleventh Circuit Court of Appeals. There, clerks wrote bench memos before the oral arguments and then the first drafts of the panel decisions. The problems of law clerk inexperience seemed less severe because in every case at least two out of three judges had to agree on the outcome, and they often had a conversation about the case before voting on the result. Nevertheless, the bench memos were extremely important and also drafted by folks with zero legal experience.

The recently retired Judge Posner always wrote the first draft of his opinions (I have personal knowledge of this), and then let his law clerks quiz him on them, suggest edits, and clean them up. He believed there were only a handful of federal judges in the country who wrote the first drafts of their own opinions, even on the appellate bench.

A clerk is supposed to be a clerk, not a judge. In federal courtrooms all over the country, these young, inexperienced recent law school graduates wield enormous power and influence. There may be some practical reasons for this. Judges have to conduct criminal trials, and in many jurisdictions that is a time-consuming enterprise. This is a task, of course, clerks cannot do, so the judges, at the end of a long day of presiding over a criminal case, might not want to dive into difficult legal issues in complicated commercial or constitutional cases.

I have also heard lawyers argue that elderly judges who have been on the bench for twenty-five years or more because of the folly of life tenure don't have the patience or energy to dig deep into legal issues, so better to delegate them in the first instance to young, energetic, hopefully humble clerks. Maybe that is not a frivolous argument but, if that is the justification for giving clerks so much power, judges should be transparent about the process. Both the judges and clerks are taxpayer-funded government officials.

I served as the faculty head of my law school's Inn of Court for many years. The Inn of Court is a wonderful organization where judges, partners and associates in law firms, and law students gather once every month or two to discuss professional, ethical, and litigation issues. In my fifteen years, we covered many controversial topics, including a few where I expressed my legal realist views of judges quite openly, and was supported by many of the lawyers, and even a few of the judges, who participated in the programs. One judge once quit the Inn after that kind of conversation. In all those years, however, I could never get the lawyers in the Inn to agree to a program discussing the role of law clerks in the litigation process. That issue was just too hot, I was told over and over and across the years.

As a profession, we need to have a full and honest discussion of the role law clerks play in the federal court system. The problem is that few ex-clerks are willing to talk about the process "on the record." There is an unofficial code of silence among most clerks. As I said, I loved my judge (he has passed), but I was open about this issue when he was alive. The system of law clerk power should either be defended by judges on the merits or it should be changed. There may be sound arguments to let mid-20's, recent law school graduates with no legal experience, have de facto authority over legal motions in our federal courts, but I seriously doubt it.