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Tuesday, April 19, 2005

Markel on Garrow's Blackmun Bombshell

Emory historian David Garrow's piece in the current issue of Legal Affairs is a bombshell-- so much so that former SG and Wilmer honcho Seth Waxman, who is chair (but not editor in chief) of Legal Affairs, published a response in the very same issue, calling Garrow's assertions "sweeping" and his conclusions "unsupported." 

Over at TVC, Jim Lindgren has weighed in on the matter, calling the piece "fair, insightful, and scathing."  He further notes that the piece reveals that:   

It appears that Blackmun lacked the talent to serve on the Court, deferring to clerks much brighter than he was to an extent that is unacceptable. Further, things got worse in his last few terms (term limits, anyone?). Garrow depicts how Blackmun sometimes served as little more than a cite-checker of his clerks' work—a division of labor that effectively made the judge a clerk to his own clerks.

I read the piece earlier, and had some thoughts to share, mostly at the meta-level.  To the extent Garrow's piece is accurate, and it has been criticized as "sadly defective" by Yale Dean Harold Koh and others in Mauro's piece here, one has to wonder what the effects of such revelations are likely to be and what seems to be missing from the perspective of the clerks. 

In some respects, the issue raised by Garrow's piece is similar to other judicial contretemps over disclosures of confidential legal advice, such as whether Miguel Estrada should have turned over his SG Office memos when being considered for a court appointment or whether certain SCOTUS clerks during Bush v. Gore betrayed their obligations by talking with Vanity Fair reporters.   But it is different too, in an important way: in both those situations, the choice to reveal "protected" information was available to the person who was giving the advice. 

For Molly McUsic -- whom, in full disclosure, I met once at a DC dinner party and found incredibly delightful -- or the other lawyers who were once Blackmun clerks and are now shredded in the Garrow article, the article's conclusions are probably stinging because no doubt they were obligated to perform the tasks they were given by Blackmun, and to take the level of responsibility that he apparently delegated to them.  Garrow's piece doesn't convey that difficulty with the appropriate empathy, I think.  Instead, by citing the instances where a clerk writes "I hope you like what I have drafted,"  or "I would love to hear your thoughts," Garrow tries to make the clerks look like devious Rasputin figures manipulating the old man.  The truth is probably more muddled.  To anyone who knows how Article III courts tend to work, there is nothing surprising about a clerk drafting opinions and seeking feedback from the boss, rather than the other way around.

Second, and perhaps more importantly, one has to wonder whether clerks of that generation, or this one for that matter, expect their memos to become part of the public record, especially while in the midst of their careers.  I have had the good fortune of clerking for a judge I would take a bullet for, and I know lots of friends who have had similarly positive experiences with their judges (and many more who have not, sadly).  For lack of interest, there's not much risk that my memos to Judge Hawkins (or other Judges on the Ninth Circuit) would be circulated in the public realm.  But for those friends who are (or will be) part of the "Elect" (as UTR calls them), they now have to worry that whatever they write for their SCOTUS bosses may be fodder for historians like Garrow during their active career.   That might both chill the frank advice they give to the Justices and diminish the texture of the relationship between the clerks and judges.  That might not be bad, but at least let's recognize the consequences.

Finally, the reason some judges panic over clerkship hiring is because the relationship is increasingly one of pervasive interdependence.  While a clerk's references to "evil nino" or AS's "monstrosity" of an opinion are disrespectful, the setting was private and the stakes for the participants in that particular judicial skirmish were incredibly high: the fate of constitutionally protected abortion rights.  That's not a small issue.  So it's not surprising (nor all that disturbing) that rhetoric would be unmuted there, especially in the colloborative relationship between judge and clerk.  And in a world where we are all "legal realists," the expressed shock and dismay seem a bit forced.

To be sure, Blackmun's failings at the end of his tenure appear to be more severe than merely indulging frank, partisan, and/or heated advice from his clerks.  But the piece seems to occlude an important part of why the documents are what they are, and thus, Garrow's piece seems too tough on the clerks even if the assessment of the Justice may be right.

Update: Mark Tushnet has some additional reactions over at Balkinization that further demonstrate Garrow's piece should be read with caution.  See also Jack Balkin's views and my buddy Orin Kerr has weighed in also.

Posted by Dan Markel on April 19, 2005 at 04:21 PM in Law and Politics | Permalink

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» Blackmun Mania from Law Dork
In contrast to the rather calm (read: slightly boring) forum featuring Nina Totenberg or NYT Magazine piece about Justice Harry Blackmun, David Garrow's Legal Affairs piece about the justice is full of sparks. Already, Dan Markel has posted a response... [Read More]

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It's another pillar of judicial integrity crumbling, more reinforcement that judges don't deserve unsupervised lifetime appointments. This is scandalous. [Read More]

Tracked on Apr 21, 2005 10:38:04 AM

Comments

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Tushnet and Wm McDaniel ably demonstrate what every working litigator lives and breathes - any sufficiently large body of evidence will produce "support" for any desired premise. That's why courts have discovery and cross-examination.

Garrow's conclusions may be correct, but his evidence doesn't convince and his approach begs doubt.

Posted by: J. Squire | Apr 20, 2005 1:58:49 PM

When your conclusion is based on unconvincing evidence and a data universe that does not control for the appropriate confounds, your conclusion should be discounted.

In psychology, this level of work would have been relegated to the Psychology Bulletin.

Posted by: Joel | Apr 20, 2005 2:23:32 PM

This is just another proof of the truism: Don't put anything in writing that you would be ashamed to see in public.

Posted by: anon | Apr 20, 2005 3:29:48 PM

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