David Lat’s first novel, “Supreme Ambitions,” deftly dissects judicial power, how to get it and how to use (and abuse) it

David Lat is a champion of judicial transparency even though he is a slightly monstrous one. If you read his first novel, and I heartily recommend it, you will understand my choice of words.

The annoying thing is that Lat is young. If you don’t know about his first blog, you have not been paying attention to the federal judiciary. Entitled  Underneath Their Robes, and written under the pseudonym Article III Groupie (because he was then a junior federal prosecutor and federal prosecutors are typically plodding and illiterate and constitutionally unable to rock the boat), Lat wrote snarky, terrifically funny, sometimes shocking, and always utterly revealing pieces about federal judges and their law clerks including especially those at the Supreme Court. These offerings were not made up. He had real sources and they leaked everything to him. Highly regarded federal appellate judges sought him out for coverage. He wrote in a female voice, and his fashion sense was as acute as his other skills.

It took a kid’s courage, a scamp’s mind, and boatload of diverse talents equivalent to a dangerously packed Filipino ferry to do what he did. Did I mention Harvard, Yale law, a clerkship with the brilliant Diarmuid F. O’Scannlain of the Ninth Circuit, a stint at Wachtell Lipton Rosen & Katz and an appointment as an AUSA under (bad word choice) United States Attorney Chris Christie (yea, that guy)?

Lat was born in 1975, just like my second daughter Lisa. That makes me want to kill him.

Lat was born in 1975, just like my second daughter Lisa. That makes me want to kill him.

Lat revealed his identity in a November 2005 interview with Jeffrey Toobin of The New Yorker. After that, he left his prosecutor’s position in New Jersey to enter the literary world, founding, among other things, the everything-about-law-site, Above the Law.

And now we have the wunderkind’s first novel. It will be on “book stands” in hard cover around December 1, 2014, but you can (and should) pre-order now. The list price is $22.95, but Amazon will sell it at a pre-order price of $17.21. Published by the ABA, Lat titled his book Supreme Ambitions.

Lat’s novel is a cross between a serious look into the heart of darkness and an insouciant study of Manolo Blahnik footwear. It recounts the story of a young women, Audrey, who is half-asian. She is beautiful, poor, a gunner without being a mean girl, and a Yale law graduate. Audrey serves as a law clerk to a ruthless female federal appellate judge on the Ninth Circuit who is also of Asian origin. Our heroine desperately wants to clerk for a Justice of the Supreme Court. If Audrey plays her cards right, her Ninth Circuit boss, with more than a passing interest in the Supreme Court herself, can fulfill the waif’s supreme ambition. But what if Audrey must sell her integrity to get what she wants? For the rest of this captivating story, buy the book.

In no particular order, here are a few of my thoughts:supreme-ambitions-cover (1)

  • The novel is more about truth than fiction. This is legal realism at its finest but told in the highly unusual and difficult form of a a well-crafted novel. Concentrate on the details as you read this piece. It is Lat’s attention to that detail–the manner of speaking, the fixation on appearances, the guardedness, the obscene opulence of appellate judicial chambers, the hard, hard work that appellate law clerks are required to put in, the silly and ultimately unwarranted hero worship of federal appellate judges by law clerks just out of law school, the horrid egotism that runs unchecked and unchallenged among so many federal appellate judges, the use of words to hurt and demean for no reason other than to feel the sharpness of the blade cut sinew, and the pettiness, oh, the pettiness–that both brings this novel to life and gives it more than passing significance.
  • Especially for me, the book brought back memories. Long, long, long, long ago, I served as a law clerk to Judge Donald R. Ross on the Eighth Circuit Court of Appeals. It was the best job I have ever had. Lat’s novel reminded me of that wonderful period when high drama appeared around every corner. When my judge secretly flew out to the east coast on a private jet during the midst of Watergate, the fact that he had formerly been Vice Chair of the RNC, the fact that he had been the arrangements chair for the 1968 Republican convention in Miami, and the fact that he was the lawyer who dumped Barry Goldwater and his acolytes from power within the GOP, punctuated the point that some federal appellate judges remain unseen national power brokers even after they take the bench. My memory fits perfectly with Lat’s intriguing narrative.
  • Lat is a taxonomist of the first order. He divides federal appellate judges into two camps. The CEOs who manage cases, but who find little interest in the nitty-gritty of the law. They are said to see the big picture. Alternatively, there are the judges who are technicians who love the law, and the nitty-gritty that goes with it. They are said to be the intellectuals. While this division does not always hold true in real life, my experience suggests that Lat’s taxonomy is generally accurate. For what it is worth, my view is that the perfect appellate judge is the one who blends both attributes. Unfortunately, there aren’t many of those judges.
  • If you are expecting something from the likes of John Grisham, look elsewhere.
  • There is a hipster quality to the book, but it is not overdone.
  • Snark? Oh, of course. Do you know what TTT stands for? It stands for “Third Tier Toilet.” Snotty appellate law clerks from elite law schools use TTT to describe law schools like the University of Nebraska College of Law, my law school. At times, the novel has a very sharp edge to it.
  • Lat’s use of his real life blog Underneath Their Robes as an important element in the story initially annoyed me because it seemed needlessly self-promotional, but the device ultimately ended up being brilliant.
  • Until the end, there were not enough white guys. I’m kidding, but only sorta. As you reach the end of the novel, I think Lat wants you to think about Chief Judge Kozinski (a former law clerk to Warren Burger, Supreme Court of the United States, 1976-1977) and his independence, his brilliance, his weirdness, his powerful writing, his love of the law, his understanding of power, his terrific sense of humor and his intellectual honesty. Lat hints that such men (and women) are there if only the political will exists to put them on the upper rungs of the federal judiciary. And so it is, as the 281-page offering ends, that Lat provides me with a glimmer of hope.
  • The novel is fun for the gossip potential too. If you know what to look for, you can find references to present day Judges and Justices, although their names are changed. There a several nods to Lat’s old boss, Diarmuid F. O’Scannlain of the Ninth Circuit, but, of course, under a different name. Of particular interest to me, Eighth Circuit Court of Appeals Judge Steven Colloton is favorably mentioned as “feeder” judge to the Supreme Court but under another name. Later, he is mentioned as a likely candidate for the Supreme Court. By the way, I know Steve (just a little) having sat with him on the Court of Appeals and worked with him on other projects. Lat’s speculation about the upward trajectory of this young Iowa federal appellate judge from flyover country fits my guess-work. That said, and while I like and respect him an awful lot, Steve would be well advised to polish his interpersonal skills with other judges. Just sayin’.
  • In the book, Lat uses court cases as stage props, but he gives us realistic cases to ponder. Because the novel concentrates on the tension between judges of different jurisprudential stripes (“conservative” and “liberal”), Lat is forced to describe the arguments for and against the competing alternatives. His analysis is balanced. Indeed, there are portions of the novel when the characters are getting down to the cases where Lat’s book might serve as a fun “hornbook.” Again, the detail Lat provides gives the novel a feel of reality that would be impossible to achieve without it.
  • I continue to thank the God(s) that my law clerks (Jan and Jim) are career clerks. Lat accurately describes the kids just out of law school who populate the ranks of federal appellate clerks. Sure, they are brilliant. But the acne that still dots the faces of many of them highlights their immaturity, and the ultra strange fact that important decisions are substantially shaped by children scares me.
  • Lat pens dialogue reasonably well for a first timer. Some of it is even marvelous. Dialogue is not, however, his strength. Because Lat is such a wonderful observer, I hungered for longer strings of dialogue but that is not found in Supreme Ambitions. Good dialogue is impossibly hard to write without years of practice. He will get better with time.
  • Next time around (and I strongly encourage Lat to continue writing novels), I would like David to concentrate on the TTT of the federal judiciary, the federal trial courts. There is a drama there as well as a desperate need for transparency. Again, the great value of Lat’s work is that he gives us legal realism in a transparent and knowing manner while using the unusually difficult but terrifically engaging device of a novel. Lat can become the master of this powerful new way of describing our opaque federal judiciary. I sincerely hope he continues.

RGK

Thoughts on employment cases and summary judgment from someone who has seen how the sausage is made

Regarding the study of employment cases pitched at the summary judgment stage in the Northern District of Georgia and the Atlanta Journal Constitution’s article reporting about it, I heard from a career law clerk via e-mail. The e-mail was insightful. This person has graciously allowed me to reprint his or her thoughts, with certain minor edits.

Here are the guts of the e-mail:

In response to the AJC article about N.D. Ga. Title VII cases, I have a few responses, gleaned from my experience as a law clerk for two different federal trial judges over the past five years.

1. [V]irtually all Title VII cases that get tossed before discovery are DOA because of failure to exhaust administrative remedies. The AJC article briefly touches on that, yet the entire article is premised upon the idea that the cases don’t get a fair shake in federal trial courts. It’s not the trial judges’ fault that Congress wrote in an administrative remedy requirement, and it’s not the trial judges’ fault that the appellate courts have strictly construed it. [A]t least half of Title VII cases get tossed before discovery, and it’s because the plaintiffs either sit on their claims and don’t retain counsel, or they retain incompetent counsel. That was not the case in . . . where I [previously] worked because there was a plaintiffs’ firm that had built a large practice almost solely focused on employment litigation; they knew what they were doing and did it well.

2. Once these cases make it to the summary judgment phase, the burden-shifting analytical framework cuts against the plaintiff’s interests most of the time. Again, this is something wholly outside the trial judge’s control, and the article doesn’t even address it.

3. In those cases where the plaintiff actually does present sufficient evidence to make out a prima facie case, the evaluation of their evidence in the pretext portion of the analysis is often outside the trial court’s discretion. Likewise, in a hostile environment analysis, the severe or pervasive question is often out of the Court’s discretion. In other words, there is often Circuit Court precedent that is either directly on-point or close enough that it is determinative. The article makes much of the fact that a case where a plaintiff alleged – and presumably offered evidence – that someone groped his/her crotch was tossed. [T]here are precedents providing that such behavior, or even more shocking behavior, is not sufficiently severe or pervasive to violate Title VII.

So, my experience is that the federal trial courts have significantly less discretion than journalists and the plaintiffs’ bar like to think they do. If the administrative requirements are too onerous, that’s on Congress. If Circuit precedents set the bar too high to get past summary judgment, that’s on the appellate courts. Everyone likes to beat up on trial judges. Sure, some deserve it. But, for the most part, the trial judges are the most honest, hardworking judges in the judiciary (among Article III judges, at least). They’re also the closest thing in the judiciary to Justice Roberts’ “balls and strikes” metaphor (poor as it may be, insofar as umps have a lot of discretion over balls and strikes). They don’t make the rules. They just apply them.

I thank my correspondent for the contribution. And, by the way, Jan and Jim, my career law clerks, didn’t write one damn word!

 RGK

Once again, career law clerks rock!

Yesterday, the Omaha World Herald published a story about GolfStatus and the bright lawyer behind the software company that is making a mark in the smart phone world.  For reasons you will see next, that article was further proof of a subject I posted about before.

Per the article, the GolfStatus company writes free apps that allow golfers to connect with other golfers, post scores and discover new courses.   At the same time, the company is launching a mobile rewards network, intended to help golf courses and businesses market to customers through achievement and loyalty-based rewards.  The company recently offered its first Android app and updated its iPhone app.

According to the World Herald, the owner of the company is Ryan Cooper.  He “got into golfing while earning a business degree at the University of Colorado. He managed two golf clubs and later earned a law degree at the University of Nebraska.”

I am pleased to say that Ryan’s day job is working for our court as a career law clerk under my supervision.*  He is a pro se staff lawyer who also doubles as a part-time elbow clerk for me.  I am very pleased for and proud of Ryan.

photo

Ryan is the perfect example of why I rely exclusively upon career law clerks.  They are very bright and they are serious and mature adults whose judgment I value highly.  They are also fascinating people with varied interests outside the legal profession.

RGK**

*Under Canon 4 of the CODE OF CONDUCT FOR JUDICIAL EMPLOYEES, Ryan is permitted to engage in outside business activities (except for the practice of law) with my approval.

**To be clear, I don’t “endorse” Ryan’s business.  Indeed, I don’t even play golf.

No Rookies: the inestimable value of career law clerks

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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.

RGK

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