In the narrow corridors behind the courtrooms lurk the law clerks (lawyers) for the federal trial judge. If the judge is lucky, very lucky, the judge has been able to hire career law clerks–highly educated and experienced men and women who will remain with the judge through most of his or her time on the bench. This post is a tribute to those career law clerks.
First things first. For a very funny, extremely well-written and wonderfully researched law review article about law clerks, please read Parker B. Potter’s Law Clerks Gone Wild. Written by a career law clerk for a federal trial judge, Mr. Potter shows us how to write legal stuff that is both entertaining and insightful. Mr. Potter concludes his tour de force this way:
Commentators have had plenty to say about the deleterious effects of the rise of the clerkigentsia. But, based on my research, the really scary law clerks are entirely fictional. Law-clerk conduct that threatens the basic integrity of the American legal system is all but absent from the pages of the Federal Reporter and the Federal Supplement, and can be found only on the fiction shelf, . . . . That might be a small comfort, but it’s nothing to sneeze at in a day and age when integrity can sometimes seem in short supply in both the public and private sectors.
Parker B. Potter, Jr., Law Clerks Gone Wild, 34 Seattle U. L. Rev. 173, 232 (2010).
Second, long ago, I was a law clerk. For almost two years, I served a judge on the United States Court of Appeals for the Eighth Circuit. Fresh out of law school, I was young and dumb. From my clerkship, I learned that young lawyers are not worth very much to the judge until just about the time the clerk leaves to go out into the world.
Third, when I became a federal trial judge, I decided to hire only career clerks to fill the two clerkship positions that each federal trial judge is allotted. Fortunately, I got two very good ones. Jan and Jim, my career clerks, possess more than 50 years of legal experience. Both did extremely well in law school. One was editor-in- chief of her law review. Both clerked on our state supreme court. One spent time as an assistant state attorney general, and the other became a partner and litigator in a highly respected firm.
Fourth, I decided on career law clerks because of how I viewed my primary task as a trial judge. I have always believed that my primary job as a trial judge was to make decisions as fast I could do so. Since that has always been my orientation, I knew that I wanted law clerks who could help me accomplish that task with a minimum of hand holding and training. I needed seasoned lawyers to rely upon. I did not and do not have time to deal with the young and the dumb (as I was some 40 plus years ago).
For those who say that judges have an obligation to train fledgling lawyers and hiring recent law graduates as short term clerks meshes with that training obligation, I say nuts. Our job, at least at the trial level, is to be judges and not something else.
For those who say career law clerks have too much power, I say nuts (times two). A judge can have valued career law clerks without ceding to those clerks the judge’s authority as a judge. In no other business or profession would we make an argument that the decision maker ought to be helped by the inexperienced because the decision maker is too foolish or weak to make his or her own decisions if served by an experienced adviser. Bluntly put, such an argument is rubbish.
Fifth, in 2007, driven by budgetary concerns, the Judicial Conference of the United States limited federal trial judges to one career law clerk plus one “term” clerk. (Thankfully, Jan and Jim are grandfathered.) Moreover, any new “term” clerk is limited to not more than four years of service. I understand the budgetary concerns that drove that decision. Respectfully, however, I believe the decision was short sighted and remains so today.
It would have been far better to have allocated a sum certain to each judge with the allowance that the judge could use the money to hire his or her staff on such terms as the judge thought best so long as the judge did not break the budget. Instead, newer judges will be forced to get along with rookies, and that is a real shame. Perhaps the Judicial Conference will reconsider, but I am not hopeful given the sequester and related drama that is now unfolding at the center of the universe that we know as Washington, D.C.*
In summary, I could not get along without the skills and hard work of Jan and Jim, my career law clerks. They make a middling judge like me better.
*The judiciary’s budget is a very small part — substantially less than one percent — of the entire federal budget. In the scheme of things, we are not even a rounding error. Yet Congress seems to have no concern about gutting the third branch of government by using the budgetary process to drain the life blood of the judiciary–our personnel. It is a damn shame that the politicians have so little regard for a coequal branch of government. But even more frightening, if this sequester and debt-ceiling nonsense continues, Congress will get exactly what it has paid for–a third-rate judiciary for a third-rate country. That fear is not an exaggeration.
Photo credit: beckstei’s photostream. Creative Commons License, http://creativecommons.org/licenses/by/2.0/deed.en