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Monday, December 11, 2017

Clerkships Are, Or Can Be, Just Jobs. Maybe it's Better That Way.

This fall, I happened to be writing a short law review piece that dealt with clerkship culture. It makes the argument, which I've also made on this site and elsewhere, that American judicial clerkship culture often encourages an adolescent love and loyalty toward the judge one clerks for, and that this is unhealthy and does not help develop a fully mature legal culture. To the extent that many or most law clerks have clerked for federal judges, and many elite law professors have clerked for elite judges, it does not develop a fully mature legal academic culture either. Not everyone agrees with this argument, of course, although it is hardly new and many have made similar arguments. 

The pages of law review tributes to various judges and justices, often written by former clerks who are now law professors, are filled with adoring, sometimes worshipful language. Some of that is understandable. For one thing, the editors are unlikely to solicit or select for publication a tribute that says of one's judge, "[He or she] was just okay," or "It was just a job, although it was a great job." For another, clerkships are part of the culture of elite advancement, ours is a small community that can be quietly punitive, and one does not want to be seen to write disloyally or even especially critically or in a lukewarm fashion about one's judge. And because clerkships are so romanticized, one either absorbs that language and sensibility, or doesn't want to write more blandly, lest one be suspected of having been just a so-so clerk or of having clerked for just a so-so judge. 

What is striking about those tributes, though, is the common language used to describe such clerkships. Many such tributes describe the judge for whom the author clerked not simply as a great boss or mentor, or even as a friend, but in distinctly familial and filial terms. Clerking, in this description, constituted joining a kind of family, and the judge encouraged his or her clerks to think of themselves as part of his or her extended family for life. That is a particular kind of closeness, and describes and encourages a particular kind of relationship to and with one's judge. In other cases, many involving the "familial" judge and often involving judges with a deep sense of political mission or engagement, the description is one of the chambers being part of a team, a team of near-equals and allies pursuing a shared mission: one that is deeply felt, involves more than a generalized term like "justice," and is often defined in part in terms of a sense of other judges on a multi-member court as being adversaries. Again, that kind of model encourages a strong sense of closeness and identity with one's judge. It also encourages a sense of omertà, and a desire not to let down one's "side." It encourages a particular kind of relationship, one that is far more than a mere "job."

Of course, many clerks don't have this kind of experience. Their clerkship is indeed just a job. It might be one of the best jobs one ever has, but it is still just a job. And the judge one works for is clearly one's boss: not one's second father or mother, grandfather or grandmother, or friend, or even necessarily one's mentor (even if one learns and learns well from the judge and the job). The judge is not looking for a second or substitute family; he or she already has a family and doesn't want or need another one. Nor is the judge looking for political allies or teammates on some kind of crusade or mission. Clerks are employees: special employees, perhaps, or especially important employees, but employees just the same. And the judge is "just" one's employer.

I have no idea how common that clerkship experience is. I assume it's quite common. It's consistent with my own experience. But it mostly flies under the radar. It's not the model that gets talked about again and again in the law reviews. It's not the romanticized, rhapsodized description of clerking that so fills the books and articles about clerking, or the breathless descriptions of judges or justices. More often that not, law students are given the romantic description, or hope to have that kind of life-defining (and, in my view, potentially life-long adolescence-encouraging) experience. They don't want their special year, their "elect" year, to be mundane or prosaic or just an especially prestigious and interesting job. Nor do they want to describe it that way.

There was nothing particularly timely about the piece I have been working on, and I didn't intend it to be or much care. But, in the wake of the stories about Judge Kozinski over the past week, it suddenly seems very timely indeed. I don't mean to generalize too quickly or loosely from those accounts to all "family"- or "team"-model clerkships. But in my piece, in describing both the "family" and the "team" model of clerkship, and contrasting it to the plain "job" model of clerkship, I found that I was citing many published articles by or about Judge Kozinski and the clerkship experience. And in at least one of the new accounts about Kozinski, I was struck by two things: 1) a description of the totalizing nature of the experience, one that has been described about some other judges and their clerkships; and 2) the same former clerk's desire for "greater honesty regarding judicial clerkships. Law students are often told in glowing terms that a clerkship will be the best year in their career. They are never told that it might, in fact, be their worst—and that if it is their worst, they may be compelled to lie to others in the name of loyalty to their judge."

Perhaps it's time to rethink the romanticization of clerkships that involve familial or filial relationships with one's judge, and the endless praise of judges who encourage such relationships rather than close but professional and workaday relationships. Maybe there's more to be said--certainly more than is generally said publicly--in favor of clerkships that are "just" jobs, that feel like "just" jobs, and in which the judge understands and makes it clear that the clerkship is indeed just a job, and the judge is indeed just another employer. It's a lot easier to criticize, refuse, or stand up to a judge who feels like a simple employer, not a filial figure, or a teammate and collaborator in a deeply charged and important "mission." I'm sure that many such relationships and experiences are indeed wonderful. But they are also rife with the potential for abuse of power, in a way that may discourage clerks from saying or doing much about it. And our culture of glowing tributes, displays of filial loyalty, and lifelong championing of one's former judge may not help either.

Maybe there is much more to be said in favor of the clerkship that is just a job and is treated like one, and the judge who is just an employer--and who knows it, and (as a professional should) acts like it. Perhaps that's better than an extreme in which one's clerkship might be "the best year in [one's] career," or "their worst," and in which, if it's the latter, multiple social and other forces discourage one from saying so. There's a lot to be said for clerkships that are neither the best nor the worst year, but are just jobs; and for judges who don't constitute one's closest relationship, for good or ill, but are just one's boss.

Posted by Paul Horwitz on December 11, 2017 at 09:58 AM in Paul Horwitz | Permalink


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