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Tuesday, September 16, 2003

DANGER: law clerk's head in danger of exploding with sufficient force to trigger shift in San Andreas fault!

One of the things I'm proudest of in my legal career is the year I spent clerking for a judge on the United States Court of Appeals for the Fifth Circuit.  I have enormous respect for the US Courts of Appeals and their judges and clerks, and for the system of which they're a part.  But ....

I'm only on page 13 of the Ninth Circuit's opinion in Southwest Voter Registration Education Project v. Shelley — the ruling that, unless swiftly undone by the full Ninth Circuit sitting en banc (fat chance) or the US Supreme Court (semi-likely), will postpone the California recall election until March 2004.  It's a "per curiam" opinion, meaning issued jointly by the three judges on the Ninth Circuit panel, and it's possible that it was actually authored by one of those judges, I guess.  The writing style is a bit too hip, though, for most circuit judges — almost more appropriate to a blog or a campaign website than for inclusion in Federal Reporter, 3d Series.  From this and from some quirks in the citation form, I'd bet dollars to donuts this is the work of a very smart, very liberal, very out-of-touch-with-reality law clerk who's just joined the staff of one of these judges after a law school education that included law review service (and possibly editorship). 

I'd been toying with the flare pistol previously, but this sentence caused me to squeeze the trigger to send up a pretentiousness warning:

In this case, Plaintiffs allege that the fundamental right to have votes counted in the special recall election is infringed because the pre-scored punchcard voting systems used in some California counties are intractably afflicted with technologic dyscalculia.

In my personal opinion, any law clerk who'd write such a sentence should himself be sentenced — say, to picking strawberries as a migrant worker, or delivering refrigerators, or any other experience that would get him/her back into the real world amongst real people.

More on this court decision later, after I've finished reading and re-reading it in full a couple of times.

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UPDATE (Tues Sep 16 @ way-too-late):  Yeah, it's almost certainly a law clerk who wrote this. 

Most United States Circuit Judges recognize that under separation of powers, their role in prosecuting the nation's foreign policy is essentially nonexistent.  Yet here's another simply incredible paragraph, back on page 64:

       In addition to the public interest factors that we have discussed, we would be remiss if we did not observe that this is a critical time in our nation's history when we are attempting to persuade people of other nations of the value of free and open elections.  Thus, we are especially mindful of the need to demonstrate our commitment to elections held fairly, free of chaos, with each citizen assured that his or her vote will be counted, and with each vote entitled to equal weight.  A short postponement of the election will accomplish those aims and reinforce our national commitment to democracy.

This paragraph was written by someone who sees himself not only as Justice William Brennan reborn, but also as Sec-State Madeline Albright returned to office.  Politics and substantive law completely aside, just in terms of what sorts of things courts are supposed to concern themselves with and write about in their opinions, I'm pretty sure the judge for whom I clerked would have smacked me with the nearest lawbook if I'd ever handed her a draft opinion with something like this in it.  And I'd have deserved that, and worse.  What's remarkable to me, however, is that three US Circuit Judges permitted this to go out "per curiam," effectively adopting it as if they'd each penned every word themselves.

I'm pretty sure I've figured out where the Ninth Circuit went most badly wrong, and I'll probably start a new post with a more substantive critique of this opinion soon.

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UPDATE (Tue Sep 16 @ 11:15am):   The good grey New York Times of course thinks the "foreign relations" paragraph that struck me as so inappropriate was worth quoting — probably approvingly, but in any event without remarking on how exceptional such a statement is — in the third paragraph of their page-one story.

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UPDATE (Fri Sep 19 @7:30pm):   The Curmudgeonly Clerk has a fine discussion of law clerk influence and the limits thereto which I recommend highly, and to which I've added a comment of my own.

Posted by Beldar at 01:15 AM in Law (2006 & earlier), Politics (2006 & earlier) | Permalink

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Comments

(1) Carolyn Elefant made the following comment | Sep 16, 2003 10:59:02 PM | Permalink

I've read that July is the most dangerous month to have a procedure performed in a teaching hospital because that's when the new interns come onboard. Based on your discussion of the law clerk's writing and analytical skills in Shelley, I'm now wondering whether it can be said that September is a dangerous month to issue important decisions because that's when the new law clerks (fresh from the bar and trips to Europe) start their clerkships. Any comment?

(2) Beldar made the following comment | Sep 17, 2003 6:56:31 PM | Permalink

Certainly anyone who's new at a job is more likely to screw up in it. That concerns me far less with law clerks than with doctors, however. My impression (based mostly on second-hand info from my ex-wife's experience as a physician) is that medical residents literally may be making life-or-death decisions on an hour-by-hour basis, and that while they can call their supervising attending physicians for backup, and those attending physicians may make daily rounds to look over their work, much of the residents' work is effectively unreviewed until it's too late to do anything about it. It's probably less of a problem in, say, dermatology than in internal medicine, but the old medical school tradition is "watch one, do one, teach one" — and that's kind of scary!

By contrast, even though it's frequently the case that every word in a particular judicial opinion was written by a law clerk rather than his or her judge, I think most federal judges — both at the district and circuit court levels — genuinely do review closely everything that their clerks write, especially what's written by their new ones.

Law clerks can have considerable influence on their judges even on the ultimate "who wins, who loses" issue, but it's still the judges who turn thumbs up or down. Clerks typically have a larger impact upon some less critical but still very important issues — how opinions are structured, what prior precedents are cited and how they're interpreted, and so forth.

Clerks for district judges generally have a lot more to do than researching and drafting written opinions, and it's quite common for federal district judges to require two-year commitments from their clerks. Since they usually have two clerks, if their terms are staggered, one "senior" clerk can help train and oversee the "junior" clerk. Circuit judges and their clerks, though, have less public contact and a more steady diet of research and writing. I've heard it said, and I agree, that the one job that law school really trains one for is being a law clerk for a circuit court judge.

I do think the system is a sound one. What I'd characterize as excesses in this particular opinion from the Ninth Circuit can probably be traced to a new clerk — but the responsibility for them lies squarely upon not only that clerk's employer, but on each of the three judges who concurred in and allowed the opinion to be issued "per curiam."

(3) Justice Extra Wide made the following comment | Oct 24, 2003 12:41:36 PM | Permalink

I know exactly who wrote the opinion. It was a she. She was very liberal. She was not, however, on Law Review. She was not new to the job. She was at the end of the job. She was a clerk to the least senior judge on the panel. She was a prominent member of the Public Interest Law Program at her law school. She was also not very impressive regarding legal research, as I read her bench memos while clerking for another judge.

CIAO.

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