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Friday, February 14, 2020

Transitions, and Some Reflections on Clerking

I learned very recently that the judge for whom I clerked, Ed Carnes, currently the Chief Judge for the U.S. Court of Appeals for the Eleventh Circuit, has announced his intention to take senior status. Given that when I clerked for him he was younger than I am now, this ages me more than a little. I wish him well. That news offers a nice hook to re-up a link or two to an article I published in the Alabama Law Review on the occasion of his 25th anniversary as a judge.  (The other articles in that tribute can be found here.) Although I worried about this piece some at the time, it was a pleasure to write and readers have seemed to enjoy it, if only out of shock and gratitude that I wrote something relatively short. I worried because the piece was a little unusual, especially within the genre of judicial tributes. In part, although I certainly spoke about the judge and about my clerkship experience, the tribute was also a platform or opportunity to offer some explorations of the unique, not to say downright odd and not necessarily healthy, place that the judicial clerkship holds in American legal culture, including elite and academic legal culture. I had talked about these things on this blog, but welcomed the opportunity to say them more fully and formally, as it were.

The first point I explore in the piece is to question what seems to me a widespread culture of lifelong hero-worship of one's judge, something that I think has to do not only with the age at which one clerks and the fineness of one's judge, but with various odd features of our legal (and perhaps especially elite and academic legal) culture. Less odd, but equally important, in my view, is the connection between clerking, one's judge's reputation, one's professional network, and one's own success and reputation--in short, the particular kind of careerism that is practiced in small and select circles. Of course not every clerk thinks about things in these terms, but our actions and incentives are not always perfectly transparent to us. And surely not every former clerk thinks like this forever. Surely many "grow up" and out of it, as it were. But law reviews do not devote issues to judicial tributes of that sort--more's the pity--and by and large our culture gives primacy to the hero-worship, clerk-for-life model. In the piece, I suggest that William Simon was right when he wrote in 1986 that this culture tends to "prolong the style of adolescence to which privileged Americans tend to become compulsively habituated," and that this prolonged adolescence retards true independence and maturity.

The other set of observations I offer in the piece has to do with the nature of a clerkship, and particularly the tendency in law reviews and other such elite watering-holes to hold up as an exemplar what I call a "familial" model of a judicial clerkship, rather than a "just a job" model. The clerkships that are said to be most desirable, or at least the picture that people tend to paint when they are rhapsodizing publicly about their judge and their clerkship, is one of closeness and intimacy, in which the chambers is a "family." It is no insult to Judge Carnes--quite the contrary, it is a high compliment--that I never felt like I was one of his family. He already had one of those. The clerkship was a job--a very, very good job, but still just a job. The relationship was simply a professional one. Of course, a good professional relationship, with one's boss and one's colleagues, at its best can be a friendly and a fun one, and that's how I felt about my own clerkship. But it's not an intimate one. There is a difference between asking and caring about one's colleagues or colleagues' children, and thinking of them as one's own children or grandchildren. Although I may initially have been disappointed that my own clerkship was not in the familial mold, I write in the piece that ultimately I found the "just a job" model "a virtue and a valuable learning experience of its own sort," one that was conducive to "independence, perspective, and realism." I might add that I think it was healthier all around. The most unpleasant work experience I ever had was in a small workplace where the employers encouraged us to think of them as "family"--something that was lovely right up until the moment one found that "family"-type employers can also be just as emotional, harsh, and personal in their words and actions as real-life unhappy families. It is a virtue of professionalism and of a workplace that it is not a family and cannot be mistaken for one. A family is a place of intimacy, and intimacy by its nature lacks boundaries. A workplace lacks intimacy, and has boundaries and rules. In the long run, although I could never boast, as the culture seemed to expect of me, that my clerkship involved joining a lifelong "family," I concluded that I was much better off for being able to say that it was a very good job, with a very nice guy and a great bunch of colleagues (who are indeed my friends), but distinctly just a job. That, too, can be cause for due gratitude, and I am indeed duly grateful to Judge Carnes.    



Posted by Paul Horwitz on February 14, 2020 at 03:15 PM in Paul Horwitz | Permalink


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