A commenter to my post about Judge Kopf’s twit on the law clerks’ demands wrote something concerning.
I find it curious that you honestly seem to believe that decades of experience in the judiciary necessarily qualify someone to effectively make policy on sexual harassment.** It really doesn’t, no more so than decades of judiciary experience qualifies someone to play second base for the New York Yankees.
Putting aside the bizarre attempt at analogy,*** there is a shocking disconnect reflected in this assertion. Decades of experience don’t matter. Experience has no value.
It’s not particularly controversial to note that young people have an unwarranted belief in their brilliance. This has long been the case, that they have fresh, new, burgeoning ideas that need to be aired, need to be taken seriously, need to be respected. People are far smarter when they’re young than they are when they’ve suffered some experience.
But there has been a nuanced shift in this otherwise banal view: it’s not just that young people are brilliant, but that experience is a negative, an evil to be avoided and ridiculed. In the past, I’ve explained it thus:
But consider this: a young person, well-educated and with strong skills and a good attitude, sees herself as a zealous, competent lawyer. Then an older lawyer, with all the same virtues as the young lawyer, plus years of experience, comes along. The older lawyer offers the young lawyer the benefit of his experience, and the young lawyer is offended.
“I’m a good lawyer,” she responds. “How dare you suggest that you, just because you’re experienced, know better than me.”
The older lawyer isn’t suggesting that the young lawyer isn’t good, isn’t well-educated, doesn’t have strong skills and a good attitude. The older lawyer is merely adding one additional virtue to the list. Experience.
In other words, take your brilliance, young lawyer, and add experience. Does this make you dumber? But not only has this fairly obvious idea not caught on, but young lawyers affirmatively fail to grasp the idea even when it’s spelled out for them.
Why? Is it true that experience is merely a kind way of describing “doddering” old fools? Do brilliant young lawyers lose too many brain cells along the way, such that they turn into dopey old geezers, barely capable of not drooling in the courtroom?
To repeat an old aphorism, it may be true that an old fool is worse than a young fool, but if they weren’t fools when young, are they fools with experience?
This affirmative rejection of experience as a virtue, as a benefit, is striking, and seems to be a core rationalization for why young people not only extol their own genius, but are entitled to reject and ignore anyone who possesses the experience they lack. How is it possible that these otherwise very smart, very well-educated young people are unable to grasp the benefits and understanding that comes from experience?
*Tuesday Talk rules apply.
**Contrary to this facile ignorance of the issue, this was never about making policy on sexual harassment, but about making policy for the federal judiciary on sexual harassment. On the flip side, victims of offenses (though the clerks do not claim personal victimhood, but only vicarious victimhood) may well possess some personal expertise at how it feels to be a victim, but they gain no expertise on how to address the problem by “virtue” of their victimhood.
***The analogy would be whether someone with decades of experience playing baseball would qualify someone to play second base, as opposed to someone who took up America’s past time last year. But analogies are hard.
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Fausto Coppi.
“Age and treachery will always overcome youth and skill.”
That’s uplifting.
Age and treachery didn’t overcome Alexander the Great, who conquered the known world before dying in his 32nd year.
Just because 32 is young by modern standards doesn’t mean it was young by the standards of the time. The life expectancy of someone in the Classical Greece period (which is generally dated to end around the death of Ol’ Alex) at birth was 25 to 28, with the total life expectancy at 15 being 37–41 years.
If you want to use Classical Roman data (since that’s the next general era of human history, then you’re looking at 20–30 at birth, and if the kid survived to age 10, life expectancy was extended up to about age 47.5 years.
So, in fact, he wasn’t actually all that young.
We don’t really know what his cause of death was, so we can’t really rule out age and treachery.
So what you’re saying is that once your generation dies off or retires, we’re all fucked?
I put that flippantly but deep down inside I’m not so flippant about it. Not at all.
Or the exact opposite, that my generation is trying desperately to toughen up the generations that follow by highlighting their purpose as lawyers and what they’ll need to make it a reality.
I had the same thought in response to the Stop Light post. I hope I do not need a lawyer after the old curmudgeons retire.
Nope, but SHG’s post reveals something that all newer lawyers should embrace: those that learn from experience will cream those that don’t. The former will have all the clients, and the latter will work for them–forever.
Confirmed. There are some who will get the message and will care more about representing their client than their feelz. They’re the ones who will survive and thrive.
Well, either that, or teach law.
Great video choice this morning.
I have my moments.
The baffling thing about that reader comment was the failure to grasp that using their general experience, on the bench and otherwise, to develop policy is what judges do. Usually, they aren’t experts in the specific subject matter beyond whatever briefing has been done by the parties and judicial clerks, but we trust them to decide whether the government needs to alter its climate policy to protect the future for children, and we trust them to rule on every aspect of sexual harassment claims under the various general statutory schemes that provide frameworks for those claims. The comment sheds no light on the apparent supposition that sexual harassment should be different from every other kind of issue courts deal with.
That’s an interesting point, and somewhat different than my thoughts. In my view, the focus on harassment (which has yet to be defined) was obviously secondary to the duties imposed by Article III. The point being that the federal judiciary doesn’t exist to not engage in sexual harassment, but to be the federal judiciary. The question was how to accomplish its function while addressing the problem, to the extent it is a problem, of sexual harassment.
It was a primary/secondary analysis, whereas the clerks would recreate the judiciary to address their focus on sexual harassment (whatever that meant), even if it resulted in compromising or sacrificing the purpose of the judiciary to get there. They are obsessed with themselves, oblivious to the fact that the judiciary exists for a purpose, and it’s not all about them.
No, developing policy is exactly what judges do NOT do–or are not supposed to do, anyway. That so many of them believe the courts are an alternative policy-making branch of government, and rule as such, is a problem, not a feature.
True. I suspect McLeod’s use of “policy” was a slip, when what he meant was adjudicate law.
Or, I was simply recognizing that they are, in fact, an alternate policy-making branch of government. Even though we may also accurately say they “adjudicate law,” the pattern of federal legislation for most of the nation’s history has been broad-brush, with the courts left to fill in (and extend) substantial details. Hence, the whole body of judge-made law under the anti-trust and securities statutes, plus Title IX tribunals on U.S. campuses, same-sex marriage, etc. The climate change trial is another huge, ongoing example. Of course they are making policy. They decide what they want to do, and then need only find a careless legislative word anywhere in the nation’s history that enables the conclusion Congress has already enacted the favored measure.
You had to go down this rabbit hole? No, no, no. Not happening.
Dan,
With respect, I believe you misunderstand the context of the word “policy.” The federal judiciary must have internal policies, like any big bureaucracy, to function. That is the sense of “policy” that I have in this context.
When judging, I agree that, with rare exceptions, judges should not make policies like Congress or administrative agencies make policies when judges are confronted with cases. That is, the law is different than policy. For example, the law may compel a judge to make a decision that he or she believes is “bad policy.” The judge must be indifferent to the policy implications if the law compels a particular result.
All the best.
RGK
With great respect, I don’t believe I have misunderstood the meaning of “policy” in this comment. I’d agree completely that the courts, like any other organization of any size, must have internal operating policies, and certainly judges should be well-equipped to make such policies (however much detail they may choose to delegate).
But as you know, there are a great many court decisions that are nothing more than legislating from the bench, and there are judges who believe that’s their duty (though they’re rarely as explicit about it as Posner was). And Bruce’s comment about judges deciding whether the government needs to alter its climate policy suggests strongly to me that he had public policy in view, not only (if at all) internal operating policy
You’re talking past Judge Kopf. He’s not disagreeing with you about the role of judge in making public policy, but Judge Kopf is talking about the internal policy of managing the functioning of the judiciary. These are separate things.
The law compels you to do nothing, judge. The law permits you to make a decision or impose a sentence. It’s a distinction with a difference that many of you are incapable of grasping.
Furthermore, those who would pass judgment on his fellow man should automatically be disqualified from such official capacities. It’s a serious problem. And I haven’t gotten to implicit, unacknowledged bias. Instituitional bias anyone?
Live free or die. Your profession is sick and dying. It’s a throwback and not at all progressive. Is it possible that the newbie lawyers whom you oldsters are ridiculing are aware beyond their years and possibly onto something of which you are unaware because you’re so fixated and comfortable in your vexatious ways?
Bill, I post this comment because of Tuesday Rules and this being by far the least insanely offensive of your last 20 comments. I realize you need your catharsis, but crazy, offensive and incomprehensible is no way to go through life. Plus, there is actually a tiny, itty-bitty kernel of thought buried within your gibberish.
It is possible, but only in the most generic of ways. No one suggests newbie lawyers shouldn’t express their views. Indeed, there is no way to shut them up even if we wanted to. But that doesn’t make them remotely valid or serious. We were all young once. We all thought we had answers. On rare, very rare, occasion, we did, but the vast majority of the time, what appeared to be a great idea was just shallow, wishful thinking without any grasp of the myriad problems it would create or that it just wouldn’t work. Few ideas are new, Bill. Fewer still are good. And almost none survive scrutiny. The reason oldsters know this is that we’ve see too much to believe in unicorns.
There’s a lot of suffering out there, Bill. Dumb ideas only make for more suffering. As bad as you’ve had it with the law, you’re here writing crazy comments at SJ. You’re still alive at 74 and free to tell a federal judge to kiss your ass. It could be worse.
Thanx for your thoughtful reply, and hope not to have seriously offended the good judge. It is a nasty job after all. Over and out till such time as I am able to come up with some more crazy stuff. The world is crazy. You and I are the only sane ones left. And sometimes I worry about you!
This is why I love you, Bill.
At the risk of getting myself in even worse trouble than Judge Kopf, one reason clerks may feel that way is that so many judges treat their short-term clerks as if they were on a two-year, personal exploration fellowship. In contrast with a “job,” the limited clerkships are more like a continuation of law school (or summer camp), in which the judges seek to mentor the clerks, further their professional development, and introduce them to the local bar associations and local practitioners (to whom they will all too soon be turning for prospects of long term employment). It’s like the “summer clerkship” in a large firm, with less focus on the real world than in helping the clerks feel special.
Dirty little inside-judgeship secret: most term clerks are fairly useless; they take up more time than they’re worth and produce little of value. They are an accommodation judges make for the benefit of the clerks, as they lack the capacity (and experience) to contribute much to the judge.
Judges will deny this in public, and wax about how wonderful their clerks are. And for some, it will be sincere. For many, it’s just judges being nice, and the clerks are too self-important and entitled to realize it.
It is also somewhat of a benefit to the trial bar in that the clerks make a more polished first-year associate than a typical law school grad. At least they know something of courtroom procedure, the order of trials and how judges actually decide cases.
I guess it is OK for a judge to solve other peoples problems but it is not OK for them to solve their own problems.
There’s an implicit assumption that judges aren’t capable of cleaning up their own mess because of self-interest. The flaw of this assumption is that few (beyond Koz, are there any?) have engaged in sexual misconduct, and that most, if not all, aren’t every bit as concerned about maintaining the integrity of the judiciary above reproach.
Then again, the clerks aren’t concerned so much about Koz-type sexual misconduct, but rather being in a position to “enlighten” upon pain of complaint the judges on what words and ideas are permissible for their version of a woke judiciary moving forward.
When I was sworn at^^in, some old coot appellate judge gave a speech. In substance, he said that younger lawyers can only compare themselves to their peers, that one has to practice for a decade before one can compare to all lawyers.
Of course, I thought he was a crazed old fool, as did many others. A decade or so later, I came to appreciate the wisdom of his words.
I’ve had mixed results trying to pass on my experience to today’s young’uns. Some have wanted to learn. Others think I’m a crazed old fool.
Ten years is the minimum. At 20 and 30, it’s even more true.
Speaking as someone who is about four months shy of 40 years in, I approve of your reply.
I have something to tell you, Jim, and it’s going to make you sad: You are a youngster in today’s world.
40 used to be the tipping point of old age; now it’s an “inflection point” toward bigger and better things. 40 is the new pupa stage, to put it in insect terms, if you catch my drift? You just have to dissolve those sticky amyloid plaques which attach to your brain cells and lead to early-onset AllahZheim Disease.
We are all insects now, whether we know it or not, whether we admit it or not. Cockroaches inherit the earth. Whatever you have done up till now is inconsequential to what your potential is and maybe. You misunderestimate and mischaracterize yourself.
Instead of coming on here like a blithering idiot who presumes to have paid his dues to the profession of idiot s, liars, cheats and thieves, you could be out there swiming the hammer of do-gooderism. I know you can do it!
All the best in the West,
Billy Bob
What have I told you about offending the non-crazy people, Bill?
I guess decades of being taught that you are a special snowflake and that your opinion is as valid as everyone else’s doesn’t qualify someone to be the starting analogizer for the New York Metaphors.
Seems like a good time for this one:
https://dailymotion.com/video/x2m0bda