Tuesday, April 19, 2005
Obsequiousness and Former Law Clerks
There's a nice discussion below and over at the Volokh Conspiracy about David Garrow's article on Blackmun and his clerks, and the response of former Blackmun clerks to the article. David Bernstein wonders if he will ever see a clerk criticizing his or her former boss; Eugene Volokh asks whether it is not too harsh to label as "obsequious" the quality of loyalty that underlies, as he sees it, the view that former clerks hold toward their judges. (He is talking here specifically about former Supreme Court clerks. What are lower court judges -- chopped liver? I'm sure Eugene would take the view that his discussion applies equally to those clerk/judge relationships -- although, to the extent there is reason to make a distinction, I think this would rather tend to support the obseqiousness argument. Why be less loyal to lower court judges than Supreme Court justices, if not "the desire to ingratiate oneself" or "win benefits through flattery?" Again, however, I don't think Eugene was drawing this distinction.)
My own view is that it is good that former law clerks should be loyal to their judges, but unfortunate that so much of this loyalty seems to express itself in unctuous flattery. Perhaps it is little different from heaping praise on former teachers, as I have already done on this blog. But I think there are some differences. For one thing, it may be a species of careerism -- why would you want to cop to having clerked for a less-than-perfect judge? And if he or she was less than perfect, why take the risk (minimal, surely, for many safely tenured or established former clerks) of saying so in public? At the least, why take the risk of being snubbed by other former clerks?
The phenomenon -- and I think it is one -- may also speak to the occasional tendency toward self-aggrandizement or self-dramatization on the part of successful professionals, including but not limited to legal professionals.
Clerking, as I have observed elsewhere, tends to be a special and unique experience in one's career, and there may be a tendency -- especially for recent clerks -- to overemphasize the importance and the drama of the experience. In particular, there may be a tendency to enhance one's own (self)-image by painting the experience in bright tones and describing your own judge as especially wise and good.
But there is a final element missing, I think, from the discussion of why clerks tend so often to praise their judges, and this does raise some concerns, but more about judges than clerks. My limited experience as a law clerk, observing other chambers, suggested to me that a number of judges -- and especially judges who fell on more pronounced sides of the ideological spectrum of judging -- made an effort to surround themselves with law clerks who thought and felt as they did, and who saw themselves (especially the law clerks, whose short exposure to other judges, and to disputes that may become routine over time to the judges themselves, led them to exaggerate the conflicts on the court), as allies in an ongoing struggle.
I think this approach to hiring clerks is understandable, especially if the judge really thinks he/she is engaged in judicial combat; why surround yourself in a foxhole with questionable allies? (Perhaps this speaks to the earlier dialogue on political cannibalization.) If you are to spend time in close quarters, why not spend it with people that you find agreeable? But I think it is also troubling. We should hope that judges are strong-willed enough that they are not easily swayed by a passel of 25-year-old novices. Given that, there may be some value in their exposure to different views held by their clerks. Conversely, if you want to convince someone you are right, why not use law clerks as one such target group, rather than preach to the converted? Finally, I worry that the trend of polarization that Sunstein discusses with particular application to the judiciary will only be exacerbated by this phenomenon of in-chambers sub-polarization, in which all will convince each other of the drama of any particular dispute -- of the inherent rightness of their position and the inherent wrongness of their adversaries' views ("evil Nino").
I have a bias here. My own judge hired folks he thought could do the work, without particular regard to their political views. The chambers functioned fine, and I don't recall his confidence being shaken any by the possibility that his law clerks might not all march in lockstep with his own views. I could understand the attraction of agreeing perfectly with your judge, I suppose, but I think it speaks more to a political view of judging than a collegial, law-centered view of the judicial task. And, again, I think all parties to the relationship should value each other enough that any praise that is apportioned from clerk to judge is considered, fair, and genuine, rather than overstated, and that there be equal space for respectful, meaningful criticism. I am a sucker for law review tributes, and my favorite example of this is Richard Posner's Harvard Law Review tribute to Justice Brennan, which is affectionate and also unsparing. So David Bernstein has at least one example to comfort him, albeit an exceptional one.
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On the polarization point, consider Scalia's well-known practice of hiring one liberal law clerk every year. Do any other Supreme Court Justices, right or left, do likewise?
Posted by: Stuart Buck | Apr 19, 2005 10:36:43 PM
Stuart, Scalia's recent history on this is somewhat checkered. I think there was a gap from Christine Jolls to Gil Seinfeld in Scalia's chambers (thus, at least five years). Thus it may be a practice more honored in the breach.
Posted by: Dan | Apr 19, 2005 11:31:23 PM