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Wednesday, February 17, 2016

Do Law Clerks Need Empathy?

Here is a very well-done remembrance of Antonin Scalia by Joan Larsen, one of his former clerks and now a Michigan Supreme Court justice. I've written frequently, and most recently here, that "[t]oo many former law clerks in the academy retain an adolescent love of their judges," that the kind of filial piety the clerkship relationship often induces becomes a lifelong and unhealthy habit in them. I still think that's true, but I'm not a total monster, and this is a lovely account. It raises a specific question for me I thought I'd air. Larsen writes:

Justice Scalia believed in one simple principle: That law came to the court as an is not an ought. Statutes, cases and the Constitution were to be read for what they said, not for what the judges wished they would say. Each of his opinions needed to conform to that principle and to be written clearly, forcefully and accurately. If you could help him with that, you were useful to him. If not, then not . . . . As impatient as he may have been with our missteps, he truly valued our input. He had no use for sycophants. He wanted to get things right; and, therefore, he valued clerks who would argue with him about why his initial thinking might be wrong. If you could prove your case, you could win him over. But it could not be done with appeals to emotion, or outcome, or legacy, or anything else. The only way to convince him was to show him that the law was on the other side (usually by peeking nervously over his shoulder as he read, and questioned, and then reread the cases). My proudest moment as his clerk was convincing him, with two sleepless nights of research into dusty old precedents, that a criminal defendant should win a case that none of the justices originally thought he should win. I’m pretty sure that was the moment he was most proud of me, too.

Conspicuously absent here as a desideratum for law clerks is empathy. There's plenty of talk and debate, and no doubt there will be more soon enough, about the value of empathy in judges. The law review database in Westlaw shows over 750 uses of "empathy" within the same sentence as "judge" or "judicial" since the turn of the century. But there is virtually no discussion of whether law clerks ought to have the quality of empathy. A search in the same period for the word "clerk" in the same sentence as "empathy" yields only 16 hits, most of which are irrelevant and the rest of which involve clerks remarking on their judge's empathy. There are, this crude search suggests, no discussions in this literature, at least not in those terms, about the relationship between empathy and law clerks

That's pretty striking and suggests a nice, unanswered question for someone to follow up on. For one thing, the literature on judges and empathy is already at the saturation point. For another, most people write on the assumption that clerks are something more than mere amanuenses, if something much less than full partners in the enterprise, and that they at least sometimes bring something to the job other than mere mimicry of their judges' own views; and there's probably plenty of overlap between people holding those views and people who believe that empathy is an important quality in judging. Without overstating it, I think the question whether law clerks also need empathy is an interesting and overlooked one. 

That doesn't mean the answer to the question is of an intricacy proportioned to its interest, but the answer might have interesting implications. As a first cut, there are two obvious answers here, with two different sets of implications. The first, obviously, is "no." Judges decide cases. Empathy may help them decide them better. But law clerks are not the decision-makers. Their job starts after the vote and consists of something between being an advanced amanuensis, writing as the judge would write, and being a cite-checking machine. If that's right, then the implication is that we should avoid the temptation to (over-) glorify the importance of law clerks, and also perhaps that we should take a more circumscribed view of what law clerks' duties are or should be. It also suggests something about judges' uses of law clerks. And perhaps it says something about their tenure too: If empathy is an important quality for judges, then when a judge has reached the point at which he or she leans heavily on clerks even at the voting stage and gives over the writing of opinions substantially to the clerks, then that judge is no longer capable of providing the added value that his or her empathy and experience brings to the process, and should leave the bench. 

One problem with this answer is that it is hardly fully consistent with what many law clerks actually do. They do a lot of the reasoning that publicly explains a judge's vote. Especially in some cases, like "screeners," they may do practically all of it. And Supreme Court clerks also have a substantial pre-vote role through their participation in the cert pool, as well as in briefing cases before oral argument. Empathy is important, on some views, not only in deciding how to vote, but in explaining the outcome to the winners and losers--especially the losers--and to the public. In some cases, perhaps a law clerk's empathetic understanding of a case can even influence or change the judge's vote.

If that's the reality, and/or if that's your normative position, then perhaps the answer should be "yes." Empathy is an important quality in law clerks, and should be one of the selection criteria for judges in selecting them. Perhaps it should be especially important in an era in which federal appellate judges and Justices are cast from a narrow mold--elite school-to-elite practice-to-elite lower federal court judging--and thus may need law clerks to provide some of the empathy that might not flourish in such a circumscribed existence. The implications of this position are arguably problematic too, however, quite apart from the question whether it delegates too much of the judicial task (if empathy is a key part of the judicial task) to law clerks. Law clerks are generally chosen from within an even narrower and more elite-favoring pool than judges. Just as important, empathy is not a question of background alone: it's a quality that develops with exercise and experience, something that law clerks necessarily lack. Maybe those who believe empathy is an important quality for judges ought to advocate for hiring law clerks who are not only diverse in background but older and more varied in their lifetime experience. Or maybe, interestingly, those who believe empathy is important for judging should be arguing that law clerks ought to be much more limited in their duties--that they really should be glorified secretaries and cite-checkers, and that their role in both pre-vote work, like the cert pool, and post-vote opinion writing, must be more limited than it often is today.


Posted by Paul Horwitz on February 17, 2016 at 09:23 AM in Paul Horwitz | Permalink


"Justice Scalia believed in one simple principle"

sure he did ... I appreciate the discussion, but this sort of thing ... ugh.

Posted by: Joe | Feb 17, 2016 10:08:35 AM

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