Justice Breyer is “a cold fish,” the young and the dumb said so

As a lawyer, until you have been around for a while after law school, you are young and dumb. You just are. It is a provable fact–as a lawyer without experience you are young (even if you are old) and you are dumb.

I don’t care if you went to Harvard Law School. I don’t give a shit what your IQ score was at some prep school. I don’t care if you carry around your Nobel Prize. No White House should use lawyers with no more than two years experience to help vet potential Supreme Court nominees. For a terrifying (and fun) read when the young and dumb were consulted in the Clinton administration about Judge Breyer, please read ‘Cold Fish’ Memo on Justice Breyer Surfaces in Clinton Papers, Wall Street Journal (Jun 6, 2014). Thanks to Howard Bashman, at How Appealing.

When I got done reading the article. I had two thoughts. (1) What a bunch of fucking idiots at the White House to rely upon these kids.  (2) What kind of an ego does it take to believe that two years out Harvard you are competent to undertake the task of evaluating a potential nominee to the United States Supreme Court?

God(s) please spare us the young and the dumb.




14 responses

  1. The sole practitioner cannot afford to properly represent his/her clients and at the same time run their practice…two or twenty years out. The business model is failing.

  2. I agree, and feel that inexperience and a lack of a world view makes many young lawyers arrogant and ineffective. But it does seem at odds with your oft- repeated praise for federal law clerks. Or is consistency the hobgoblin of little minds? Jim Hewitt

  3. Judge:
    I couldn’t agree more with your thesis. I have to marvel that the Clinton administration would entrust such an important legal undertaking to those clearly unequipped for it. Based on their comments, at least the–now abashed–attorneys in question recognize the folly of what they were entrusted to do. I am not optimistic that the present administration, as well as future ones, will accord the judicial vetting process the respect that it deserves. I sense that, rather than being seen and treated as a coequal part of the government, the federal judiciary is viewed as the bastard stepchild of the other two branches (and maybe that’s what causes someone to suggest that inexperienced lawyers should be passing on the qualifications of potential nominees to the U.S. Supreme Court).

  4. RGK,
    Honestly, if I worked at the White House and someone asked me to do it, I would do it. But not because I think I’m qualified, but because my boss has demonstrated a unique and dangerous level of stupidity.

    I mean, who in their right mind would ask a young lawyer to do that!? But since they are clearly a bloody idiot, they will probably just give the task to another clerk, who could also be a bloody idiot. I would have no control over who that was, and since he clearly chose me first (which demonstrates his stupidity), I would take control of who was involved in the decision in the vain hope that several heads with experience will come to a better choice than a single one.

    Let’s say I have two fellow clerks. One is named Smartypants, and is from Harvard. He has many As in his background, as well as law review. He got the job and is very passionate about what he does and loves the political work. He’s a nice guy, but hasn’t ever held down a job. Two is named Scotusdork. He reads everything appellate and loves appellate work. His grades weren’t the best, but good enough, and his father is a Senator, hence how he got the job.

    Rather than risk my boss give it to the wrong person, I would probably ask both of them what their thoughts were. I would write down their views on it, think it over, and include their viewpoints along with my own in the report. I would also give them credit.

    And then I would go home and drink a lot of beer and try to drown that little voice in my head that tells me how brilliant a lawyer I am for deciding the fate of a nation. Because I know it’s lying.


  5. Judge —

    Having (blessedly) never had to endure a vetting the likes of which the exaulted Justices and Circuit Court Judges, and even you lowly Federal District Court Judges are subjected to (tongue firmly in cheek), I can’t imagine the intensity and stressfulness of the process. I do wonder, however if, after reading the story on Ginsberg v. Breyer for SC you would be willing to share with us your experience of the selection process…or perhaps you have in the past and can link to it. Also, as an aside, I am curious if this “Clinton papers” development makes you wonder what the “papers” of your appointing administration say about you? (Sorry, just a smidge of my own personal paranoia coming out there.)

    Enjoy your weekend,

  6. Judge–

    While I agree generally with your sentiments about young and dumb lawyers, having once been one myself, I think you are over-reacting to the article. The two young men were not in charge of vetting candidates for the Supreme Court. They didn’t even work in the Clinton Administration. Rather, they were two of many private attorneys asked for their opinions about Breyer. Under such circumstances, I think it’s wise to get a variety of viewpoints, even those of the young and dumb. An old lawyer (actually no older than I now am) told me once when I was a young and dumb lawyer, that what the older lawyers bring to a case in experience, the young lawyer can make up for in time to research and prepare. In other words, I’m not sure a wise old coot would have taken the time to read all of the Breyer opinions before making his/her recommendations.

    It’s always a pleasure to read your salty comments (except in that one blog several months ago when you acted like an old and dumb lawyer with your sexist post.)

  7. 1. Young lawyers are such smug know-it-alls.
    2. The only thing more self-righteous than young lawyer is a young lawyer from a top-tier law school given a little power and prestige.
    3. Thank goodness nobody listened to the smug know-it-alls about Justice Breyer.

  8. I know how you feel. Next thing you know you’ll have law students review, edit and revise articles published in the most scholarly of law publications. Or maybe brand new attorneys get hired even before they graduate from law school, and then actually work in one of the most important roles, as a law clerk for federal judges, generally responsible for fairly big and momentous decisions (with even more responsibility if they work for state court judges with even larger caseloads and less oversight over the law clerks). After all, I wouldn’t want to make a federal case out of it, but aren’t new attorneys working for trial and appellate judges, as well as Supreme Court Justices?

    Perhaps the problem is that the new attorneys were correct–Breyer ain’t that great and won’t go down as one of the greats. It was a sop appointment to Ted Kennedy that got him the seat and perhaps the new attorneys had the strength to tell the truth. You know, out of the mouth of babes.

    From an attorney practicing 22 years.

  9. Jim,

    I like young lawyers, but that doesn’t mean I would delegate to them an important task similar to the one the White House assigned to them.

    Moreover, I have consistently employed, and written about the inestimable value of, career law clerks. See here: https://herculesandtheumpire.com/2013/03/20/no-rookies-the-inestimable-value-of-career-law-clerks/

    Finally, the older I get, the less concerned about inconsistency I have become. Is that good or bad? I don’t know?

    All the best.


  10. Ron,

    Someday, I will write about being vetted. I have been vetted three times. Twice for the position of district judge and once for the position as circuit judge. To be fair to some people who are still alive, I am not yet ready to go into detail about all three events. I will think some about this and see what I feel comfortable about.

    All the best.


  11. John,

    Sure, these kids were not the the decision makers. But, if their job was simply to review opinions, their subjective complaints about the judge being a “cold fish” were stunningly out of order.*

    All the best.


    *As you point out, I know a lot about writing stuff that is stunningly out of order.

  12. NY Lawyer,

    Very interesting. We disagree.

    Breyer’s great contribution to the Court is his willingness to write clearly and without footnotes. Of all the Justices, Breyer’s willingness to write simply causes me to think very highly of him.

    All the best.


  13. Judge,

    As a lawyer with some 18 years of experience but still plenty to learn, I don’t have a pithy one-line response. But I do want to express my appreciation for your candor and clearmindedness (if that’s a word). I always enjoy your posts and respect your willingness to speak your mind publicly and without reservation. Keep ’em coming.

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