In a Wall Street Journal op-ed. Tennessee lawprof Glenn Reynolds, best known as the @Instapundit, offers a modest proposal in response to the Ninth Circuit’s sudden judicial shortfall.
Chief Justice John Roberts wants to do something about sexual harassment by federal judges. In his 2017 Report on the Federal Judiciary, the chief justice announced a plan to evaluate whether current standards and procedures “are adequate to ensure an exemplary workplace.”
He mentioned no names, but the report came out less than two weeks after Judge Alex Kozinski retired from the Ninth U.S. Circuit Court of Appeals after former clerks accused him of inappropriate behavior.
Surely the courts of the United States of America should be an exemplary workplace. But to the extent the problem relates to law school grads desperately seeking glory as judicial clerks, the question of how to ensure that no law clerk is ever subjected to something that offends their sensibilities presents a problem. After all, judges are like feral cats. Polite cats, but cats nonetheless.
The chief justice is right to think the problem goes beyond the chambers of a single judge. It’s inherent in the system. Judges have inordinate power over their clerks—and the best solution is to abolish clerkships.
Wait, what? Abolish clerkships? But, but, but, aren’t clerkships critical? There are two reasons why clerkships exist. One is to provide judges with cheap and willing help to lighten their load. Reynolds suggests that this is not just a bad thing, in itself, but unnecessary.
Getting rid of law clerks would eliminate the harassment problem and get judges doing their own work. Justice Louis Brandeis, who served from 1916-39, is said to have observed that the high court’s members “are almost the only people in Washington who do their own work.”
That’s not true anymore. The Supreme Court decided 160 cases in 1945, when each justice had a single clerk. Nowadays it decides about half as many cases with four clerks per justice. Law clerks were unknown for roughly the first century of the American judiciary, and the courts seemed to do fine. As my law students often comment, the older opinions are shorter and more intelligible than the newer ones.
While it’s certainly true that older opinions were shorter and more intelligible, it’s unclear whether that’s the fault of law clerks or computers. As someone who used to type his briefs on an IBM Selectric III, using carbon paper and Wite-Out for the occasional typo, length was a far more practical concern back then.
But there’s another reason for law clerks to exist having nothing to do with making judges’ lives easier.
True, anyone who qualifies as a federal judge’s law clerk is likely to be able to find an excellent job with a top firm. But for those who wish to enter legal academia, an appellate clerkship is almost required. A Supreme Court clerkship is a big boost to a career in academia or appellate litigation, and the justices now recruit clerks almost entirely from the federal circuit courts. The clerkship—and a strong recommendation from the judge—is vital, and therefore so is pleasing the judge.
A dirty little secret of academia is that it’s hard, if not impossible, to get a job teaching law school if you don’t have a federal judge’s chambers on your
resume curriculum vitae. All the smart kids get clerkships, which they then bootstrap into a future of writing extremely long, tedious, impractical if not ridiculous, law review articles that they call “scholarship.” Then they get to hold meetings, between interviews with reporters where they explain their expert views of what the law should be in their Utopian image, to express their appreciation of each other’s brilliance.
Without clerkships, how would anyone prove they were pretentious enough to be lawprofs? Without clerkships, academics could end up coming from the ranks of people with actual knowledge of the law from experience. It would be a disaster.
But there is hope for the wordy gunners. As Judge Richard Kopf explains, there is another option.
Whether male or female, never ever hire kids out fresh out of law school. Pluck them out of practice after they have had several years of experience. There is among the practicing bar a great untapped source of term law clerks with experience who would be happy to take a year or two off to serve as a term clerks. This third model would tend to weed out snowflakes, nut jobs, and slackers whether they be male or female.*
* Thankfully, I don’t have to face this situation. My two career law clerks (who are grandfathered under the insane anti-career law clerk rule that allows only one one career clerk per judge) and the two pro se staff attorneys I supervise (and who are considered professional permanent staff) range in age from 35 or so to 66. Three are female and one is male. All had significant and highly successful legal experience before being hired.
Perhaps the issue isn’t law clerks, per se, but the hiring of children fresh out of law school rather than experienced lawyers or career clerks. Sure, this will adversely impact the top of the class, who fight for their right to bask in the glory of a feeder judge so they can be panelists at conferences, but don’t cry for them.
They can still get jobs at Biglaw paying small fortunes instead of paneled offices in the Ivory Tower. Whether they can keep them long enough to make partner is another story, but that’s their problem.
As for long and incomprehensible opinions, there is also an answer. Take away the judge’s computers and make them type out their rulings. Trust me, they’ll be shorter.