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Friday, May 31, 2024

Some Observations About the Alleged Law Clerk Statement

The title of the post refers to this statement, allegedly issued by current federal law clerks, regarding the conflict in Gaza. As the Reuters story about it notes, the statement was published by "Balls & Strikes, a court news and commentary site sponsored by Demand Justice, a progressive legal advocacy organization."

I say alleged although Balls & Strikes, which sites like How Appealing treat as a valid source of information, says in an introduction to the statement that it confirmed the identity of the (of course) anonymous speakers. I personally don't doubt that it's true. But I also see no very good independent reason to trust that it is an accurate statement. Balls & Strikes does not exist to do reportorial journalism: most of its content consists of commentary, of which God knows we suffer no current deficit. Some of its contributors are bona fide journalists, others are not, a few I would put in the "I guess you could call that a journalist" category. Its parent organization, Demand Justice, is a standard modern partisan-politics vehicle. Its funding is dark but apparently comes from the grossly wealthy and wealth-derived Arabella Advisors, aptly described as "the hub" of a left-leaning dark money network. Demand Justice's heads come from the standard government-to-donor-patronage revolving door; they are well compensated and none of them were journalists, although one had a substantial career as a high-level press hack. It has a mission, but other than as a by-product, that mission is not honesty or accuracy; it's victory. Well and good. That's the environment we live in. But to take either Demand Justice or Balls & Strikes too seriously--to take seriously, in general, the endless, fundamentally corrupt networks that sell substitutes for either honest reporting or honest, public, and transparent discourse, to take it for granted and be immured to it, to pretend that this is the stuff that serious people can allow into their lives without suffering its effects--is to ignore Johnny Rotten's immortal question: "Ever get the feeling you've been cheated?"

So that's the first observation, a frequent one for me but only because it keeps being relevant and true: The fundamental crisis of contemporary society is an institutional crisis. That applies to Demand Justice and Balls & Strikes, which have moved into the empty space formerly occupied by the institutions whose death, decline, or drop in authority, often through their own actions, has been so damaging to our culture and politics. It applies to the judges mentioned by the clerks, whose boycott statements and other public actions treat the judiciary not as a special-purpose institution with substantial constraints on behavior and expertise, but as one more platform to say whatever one wants on the issues of the day. And it applies to the notion, not that law clerks might have something useful to say as individuals, but that if they want to say it as law clerks, they should go right ahead, and have been sorely treated if they can't. (Countless "professors' letters" demonstrate that this problem is not unique: Academics have long brandished their titles and affiliations on questions to which their jobs and knowledge contribute nothing--letters which ironically destroy the very authority they are trying to leverage.)       

A second and third observation: In the statement, the law clerks write, "Violations of these rules [barring law clerks from speaking out on matters of public interest] could result in immediate termination of our clerkships—a potentially career-ending ramification. We have thus been forced to spend the last several months as only passive observers of Israel’s assault on Gaza." There are two errors here--unsurprisingly, since the statement is geared toward rhetorical effect, not candor. The first: They were not "forced," except insofar as anyone who joins a special-purpose institution commits him- or herself voluntarily to the rules and norms of that institution. They were "forced" in the same way that a journalist is "forced" to avoid lying, a lawyer to refrain from speaking ill of her own client in public, or a chess player is "forced" not to move her pawn three spaces in a turn.

Nor is it true or useful to say that the termination of a clerkship is "potentially career-ending." This is a triumph of rhetoric, and perhaps self-perception, over candor. The candid version of that assertion would be similar to the notion that not taking a clerkship itself, because one can't follow the rules, is "potentially career-ending." Reframed in this way, the statement could have said something like, "potentially damaging to the kind of career that we, as elite lawyers with ambitions, want and think we deserve." Lots of people will hire a lawyer who was fired from a clerkship. Lots of lawyers who can't find jobs at fancy firms or, indeed, anywhere, hang out their own shingles. Lots of people with law degrees who don't find work in the law take other lines of work and thrive at them. All that happens to them, or that would happen to these anonymous clerks if they were dismissed, is that they wouldn't get to live out whatever high-end life plan they wrote out for themselves at some point: to work at Justice, or to get a judgeship, or to get a ticket to the inaugural ball or tenure at a cushy law school. (Although Bernadette Devlin might beg to differ.) To this, the proper reply is, tant pis. I dislike industrial-scale, well-funded doxing efforts, for the same reason I don't care for Red Channels. But the number of times people at elite-reproduction academies have evoked "career-ending" tropes in the past few months should encourage us to keep in mind the difference between "I can't find a job" and "I can't find a job at McKinsey." The classism of statements like "potentially career-ending" ought to be obvious. 

Finally, the law clerks are right to invoke the endless Judge Ho nonsense. Not every judicial action they cite in their statement is necessarily improper, and none of it is the same as their own obligation to avoid public political activity during their clerkships. But many of the examples they cite are illustrative of judges exhibiting the same desire the clerks feel the need to indulge: to perform, loudly and publicly, something other than their jobs. It is reflective of the idea that a judgeship (or clerkship) is as a good a place as any to engage in culture-war-mongering or political performance. They are right to criticize the judges, even if all that means is that both the judges and the clerks are wrong.

I don't think that Judge Ho and his ilk are responsible for the clerks' choice or that his actions justify it. It's better to see both as symptoms of a sickness that afflicts institutions, and thus our culture, in general: an unwillingness to live within norms and constraints. Which brings me back to my first point: The fundamental crisis of contemporary society is an institutional crisis.     

Posted by Paul Horwitz on May 31, 2024 at 01:10 PM in Paul Horwitz | Permalink

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