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.


Marty Lederman said...

What would this "full and honest discussion" look like? Yes, judges should be much more, and more closely, involved in (at least) editing and supervising and confirming the decisions that they issue than your characterization of your judge's practice. Nothing new there. And the best judges -- many of them -- are, in fact, deeply immersed in the details of those decisions, regardless of who has the "pen" at any particular point in the process.

What more (or new) is there to say?

Unknown said...

As always, you make sound points. Here are some others. 1) Many of the motions decided in districts courts are procedural -eg, motions to amend or for discovery2) Among the substantive motions, there are chances to review at a later stage or appeal. An incorrect ruling may , of course, add expense, but it won’t do substantive damage3) As a clerk, I was comforted somewhat by the fact that there was advocacy on both sides. Where I believed one side was poorly represented, I worked harder to surface relevant precendent not cited by parties. 4) In my own experience in two chambers involvement by the judges was greater when the stakes were high and/or where there had been an oral hearing. None of these points discount the validity of the issue you identify . Todd David

Eric Segall said...

Thanks for proving my point Marty. Many, many judges take little role in writing, reviewing and checking their own orders, including researching of complex legal issues. This is wrong and shouldn't happen. But no worries, nothing to talk about. They should openly admit to and defend the practice, or change it. That is what there is to talk about.

Marty Lederman said...

Your "point" doesn't need "proving": For over 100 years people have been bemoaning that some judges over-delegate, and no one argues that it's a good thing when they aren't more hands'-on.

Shag from Brookline said...

Marty's reference in his second comment to "For over 100 years ... " suggests a review of the history of recent law school grads (the bright ones, of course) clerking for judges, justices at both the federal and state courts levels. Back in 1954 here in MA when I finished law school and passed the bar, such clerkships did not seem that significant at least in the numbers. Since then there have been expansions in clerkships primarily at the federal level, but perhaps not so extensively at the state levels. Perhaps a comparative study might be in order as to how judges, justices functioned before such expansions and after. By my standards Eric, Marty and Todd are "newbies" perhaps not understanding how judges, justices used to deliver prior to such expansions. Then perhaps we can address whether such expansions have improved the quality of justice delivered by judges and justices at all levels.

Not having had the benefit of a clerkship in getting into the practice of law, I take seriously Eric's point about the lack of legal experience on the part of clerking by recent law school graduates. I quickly learned in private practice that despite my law school achievements, I too lacked legal experience, learning on the job, usually with the guidance of an experienced attorney. Black letter law seemed to turn gray in just about every legal matter I handled. A client's problem could not always be seen as a tort, contract, property law problem, but a problem involving many areas of the law. In private practice even in my early years I dealt directly with the client. For the clerk, the "client" is a judge or a justice, not so much the parties to the case before the court. And assuming the clerk reads, and understands, briefs filed by the more experienced attorneys for the parties to the case, the competition of adversaries can be overwhelming for an inexperienced clerk, like watching a ping pong match that someday he/she would like to be a participant, after gaining legal experience.

As to the code of silence, I recall when it was broken by a former SCOTUS clerk back in the last century. I for one thought that his telling was quite informative, as we have little information about the judicial deliberative process, that perhaps is a tad political.

Marty Lederman said...

Just to be clear: Of course Eric's right on the merits that the sort of uber-delegation he describes is not good practice and ought to be discouraged! I suspect (hope?) it's somewhat less prevalent than he assumes.

Joe said...

The film "Born Yesterday" was on yesterday.

Billie Dawn is educated about the details of our government. While watching it, was thinking about how things really work. A bit more complicated that the Schoolhouse Rock version. Some of this is okay, some actually good, some bad. This is not surprising -- in every day life there are things where there are basic rules and then how things are done are more complicated.

But, more should be told about it, including underlining the consequences instead of blithely summarizing (e.g., the clerks' role in the cert process is usually referenced, but in an off-handed way that does not fully discuss the matter).

Unknown said...

"My judge almost never did his own research." I think that this criticism is a little overblown. I assume your judge read the briefing (with the research done by the lawyers for each side) and read your order (with your neutral research). So, the judge had the benefit of two partisans (with the ethical obligation to cite controlling authority) and a neutral third party (clerk), and you are criticizing him for not doing enough independent research?

One particularly disturbing part of what you wrote, which you fail to notice, is that your judge, out of personal affront, ignored your proposed resolution of a case after having already been overturned by the 11th Circuit once and was promptly overturned by the 11th Circuit again. I think that this issue probably deserves its own discussion (when is it appropriate for a District Court judge to rule in a manner that he or she knows is contrary to precedent).

JR said...

I recently completed a clerkship on an intermediate state appellate court. Even though I knew to some extent the amount of power vested in clerks ex ante, my mind was still blown once I got to the inside. (Of course, this is part of the reason why clerkships are such useful experience.) And as an aside, my judge worked very very hard, which is to say that it's not just the jurists who want to take an easier path who rely so heavily on their clerks.

I absolutely agree that this conversation is necessary, and I think it's getting more and more so as the law school brain drain continues. Particularly with the second-tier clerkships like mine, the fresh JDs that fill them are not as bright as they were five years ago. It makes a difference.

Bob Moss said...

This post could not be more timely for me personally. I recently attempted to intervene, as a pro se party (not an attorney), in a dispute over a management plan for Sparta Mountain Wildlife Management area (WMA) in N.J. The plan involved removal of trees by contractors who paid the State for the right to remove logs and sell them on the market. While the litigation is in the N.J. courts, it appears that the practices described by Prof. Segall obtain here as well as in the Federal Courts.

A neighboring Lake Association engaged a pricey law firm, whose attorneys planned to argue that the legality of the plan depended on the extent of the logging. I stated in my motion to intervene that I wished to advance a different argument, that N.J.’s Green Acres laws prohibit commercial logging at all. As for standing, I hike periodically in the WMA and am active in a local group opposing the logging. N.J. is liberal about standing, holding that a would-be party need have only a “slight” additional interest above that of the ordinary citizen.

The State blasted me as not being injured because I expressed only a “general” interest, and the logging would not prevent me from hiking. As I believe is true generally in American courts, the rule in N.J. is that a would-be party need only encounter a distasteful situation to be injured. Whether there’s a cause of action is a different matter.

The Appellate Division denied my motion to intervene, and the State Supreme Court rejected my appeal, both on the grounds that “Intervenor never sought to appeal [from the State agency decision] and now asserts generalized, non-specific claims that do not support intervention in the pending appeal”---lifted straight out of the State’s brief.

And now I read Prof. Segall’s post!

Asher Steinberg said...

I agree with Professor Lederman that there is little new to say here and no "full and honest discussion" to be had that hasn't already been had. You say that "the problem is that few ex-clerks are willing to talk about the process 'on the record.'" It's true that many clerks who clerk for relatively disengaged judges don't go around sharing the fact of that disengagement with the world. But enough do, enough talk off the record to enough people that what they know becomes more or less public, enough judges (including Supreme Court Justices) are open about their drafting practices, and enough judges write in a way that gives away who writes their opinions, that we have a pretty good idea of how rare it is for judges to draft their own opinions and even a pretty good idea of which judges do and don't. So I don't think we seriously lack for transparency on these issues, any more than we suffer from a lack of transparency on whether the President writes his own speeches. My general sense is that judges who draft their opinions are rare, but that judges who don't carefully review what's drafted for them are pretty rare as well.

John Barron said...

That was then, this is now. Today, federal appellate panels routinely issue as many as twenty-five decisions per hour. E.g., Alex Kozinski, Letter (to Judge Samuel A. Alito, Jr.), Jan. 16, 2004 at 5; Perfunctory Justice: Overloaded Federal Judges Increasingly Are Resorting to One-Word Rulings, Des Moines Register, March 26, 1999, at 12 (fifty federal appeals decided in two hours).

Even at the trial court level, judges rarely bother to read briefs. Richard G. Kopf, Top ten legal writing hints when the audience is a cranky federal trial judge, Hercules and the Umpire (blog), Jun. 20, 2013. And whereas a state judge in New York granted a habeas motion for a chimpanzee, according to retired District Judge Nancy Gertner, judges are quite literally trained on “how you get rid of [pro se civil rights] cases.” Nancy Gertner (blog reply), Civil jury trials, summary judgment, employment cases and the Northern District of Georgia study–preliminary observations, Hercules and the Umpire (blog of Senior Judge Kopf of the District of Nebraska), Oct. 22, 2013.

And it is not like they don't have the time. While a fish rots at the head first, the rest of the judicial tuna is fast-becoming unfit to feed to your cat. The United States Circuit Courts of Appeal are no longer deserving of that lofty name, having devolved into barely more than playpens for petulant lawyers who once knew a President with galaxy-class egos like Edith Jones, who have become sufficiently arrogant to declare that they are too important to do their jobs:

[A]s the docket is "dumbed-down" by an overwhelming number of routine or trivial appeals, judges become accustomed to seeking routine methods of case disposition. . . . The situation is like that of a competitive tennis player forced to spend the bulk of his time rallying with novices. Just as the player's competitive edge will erode from lack of peer contact, so are judges' legal talents jeopardized by a steady diet of minor appeals.

Judges with supercharged egos like Alex Kozinski are known to write fifty drafts of a published opinion, and admit to writing opinions “precisely for the purpose of getting into” casebooks, Emily Bazelon, The Big Kozinski, Legal Affairs, Jan-Feb. 2004. If you get one of those legal Bentleys, you are satisfied, but most federal appellate opinions are almost as sound as a 1976 Yugo.

John Barron said...

Mark Leen: "when is it appropriate for a District Court judge to rule in a manner that he or she knows is contrary to precedent"

Basically, never. But that is beside the point.

They do it all the time. And why not? The odds of an appeal of an average citizen actually being reviewed by a federal appellate panel are less than 1-in-100, and the odds of a law clerk knowing his ass from a hole in the ground are (charitably) about 1-in-10. SCOTUS doesn't do error-correction, so there is no chance of embarrassment.

John Barron said...

ES: "Many, many judges take little role in writing, reviewing and checking their own orders, including researching of complex legal issues. This is wrong and shouldn't happen. But no worries, nothing to talk about."

"No worries," Professor?!? What the fuck??? I repeat, WHAT THE FUCK???

Their criminally negligent conduct affects real lives, and often irreparably. If a brain surgeon malpracticed like that even once, he would be an ex-brain surgeon. And it's "no big deal"?

Amazing how patient a man can be when the other guy's ox is being gored.

Eric Segall said...

Asher: "My general sense is that judges who draft their opinions are rare, but that judges who don't carefully review what's drafted for them are pretty rare as well." Even a carefully reviewed piece, when the reviewer has not read the briefs or done the research, is a problem. At the federal trial level, I believe that is common.

Eric Segall said...

Barron: ES: "Many, many judges take little role in writing, reviewing and checking their own orders, including researching of complex legal issues. This is wrong and shouldn't happen. But no worries, nothing to talk about."

I didn't say that of course. I said the opposite.

Shag from Brookline said...

Here's the link to CJ Roberts' "2017 Year-End Report on the Federal Judiciary":


It includes a bit on clerks and other court personnel in response to the recent Judge Kozinski brouhaha. But it doesn't touch upon the issues raised by this post and its thread. Imagine if the FOIA applied to the federal judiciary.

John Barron said...
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Unknown said...
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Shag from Brookline said...

Joe's mention of "Born Yesterday" (presumably 1950 version) brought back memories of a favorite actress Judy Holiday. I haven't seen this movie for probably 50 years and did a little refreshing via Google. While Joe might not have had a metaphor in mind with his reference, I tangled with this mentally with Eric's post in mind. I started with Billie Dawn (Holiday's role) as a recent law grad clerking for a federal judge or justice. But I had a problem with her wealthy sponsor and the reporter roles. Would the judge or justice be the "reporter"? (I'm not alluding to Judge Kozinski's methods in chambers.) If so, who would be the wealthy sponsor? So I could not get a metaphor to work. Maybe someone else can give it a try. (By the way, did author Garson Kenin base Billie Dawn on Ruth Gordon?)

When I first started practicing in 1954, I was in a sense "born yesterday" especially as I started dealing with MA trial courts, including Municipal Courts, Probate Courts and Superior Court, as what I witnessed seemed a lot different that I expected based upon what I had learned in law school. It was obvious MA was in need of court reform. We got a good semblance of court reform primarily through Gov. Mike Dukakis' two (separated) terms. But I had personally been so soured of the judiciary in MA that I avoided litigation in my practice unless absolutely necessary. (It's like avoiding hospitalization unless absolutely necessary because of illnesses that one can pick up in a hospital.) Being a progressive, I admired the Warren Court, including its decisions providing criminal defendants with greater rights under the Constitution, especially the indigent and poor. I share some of the concerns expressed about the state of the federal judiciary in this thread. But any faults lie not with the law school grads who serve as clerks. Rather, the fault is at the top, as political dysfunction seems to have tainted the federal judiciary as with the elected branches. Elections take more time to "cure" the judiciary than the elected branches of such dysfunction. Now let's take another look at CJ Roberts' 2017 report.

Joe said...

Ruth Gordon was the wife/collaborator of the screenwriter.

Did see the original. I saw the remake once and remember it as decent enough -- the two leads fit [ditto Edward Herrmann] but Don Johnson in the William Holden part was a bit curious. Then again, maybe Holden was a bit curious in the original role too.

John Barron said...

Eric Segall: "This is wrong and shouldn't happen. But no worries, nothing to talk about. They should openly admit to and defend the practice, or change it."

Martin Luther: "You are not only responsible for what you say, but also for what you do not say.”

Federal judges are like Dolt45: They're all guilty as sin, and they know it. But unless enough people with enough gravitas demand an answer, they are never going to give one.

John Barron said...

Shag: "I had personally been so soured of the judiciary in MA that I avoided litigation in my practice unless absolutely necessary."

You know the old saying: The only person who came out worse than the winner in a lawsuit was the loser. Tax practice was about optimizing outcomes for the client, while keeping as far away from the IRS as the client was comfortable with. A courtroom is a place to be avoided, if at all possible.

Shag: "Being a progressive, I admired the Warren Court, including its decisions providing criminal defendants with greater rights under the Constitution, especially the indigent and poor."

The older I get, the more progressive I become. But I find salvation in originalism, as the LC is an engraved invitation to a judocracy, and our judges have already diminished our rights to the point of oblivion. The poor and indigent no longer receive meaningful appellate review, and the jury trial has become an anachronism. The current state of affairs is far worse than even Eric admits, but the strongest criticism he could muster is a tepid one. Sad. Bigly!

Evidently, Eric is either too timorous to find a voice, or he could give a flying fuck. Why? Doesn't affect him.

I came to the law later in life, in the direct wake of the Bork hearings. Wanted to make a difference, as opposed to making the rich even richer. "We must come to see ... that 'justice too long delayed is justice denied.'"

I'm slowly coming to the realization that I won't see the Promised Land. Why? You can't get there alone.

Shag from Brookline said...

Is the Preamble to the Constitution:

"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

a road to the Promised Land or is this limited to the biblical version? For me it's Mount Auburn Cemetery, but not yet, as I am buoyed by political testosterone. But the Preamble looks to progress for generations to come, including, inter alia, for justice. We're not there yet. But there have been improvements over the years. It's been observed that progress often moves two steps, forward, one step back, and we may never quite get there.