(And if you’re REALLY good, we’ll reward you with more Nina Totenberg stories. Ask and you shall receive!)
Another day, another blog post about Chambermaid, the controversial clerkship novel by lawyer-turned-writer Saira Rao. The latest post is by Professor Scott Burris, who clerked for Third Circuit Judge Dolores K. Sloviter — Rao’s former boss, widely rumored to be the basis for the central villain of Chambermaid, the tyrannical Judge Helga Friedman.
But Burris — unlike, say, fellow law prof and ex-Sloviter clerk Mike Rappaport — takes issue with the scuttlebutt equating Sloviter and Friedman:
What I really object to in the whole affair is the way Rao and some of her blogging readers have negotiated the delicate question of Judge Friedman’s correspondence with Judge Sloviter, and the rationale offered in several quarters for “outing” mean judicial bosses….
Aside from a couple of tics, Helga Friendman is not a portrait, nor even a recognizable caricature, of Dolores Sloviter. Hell, I didn’t even recognize Rao’s Center City Philadelphia.
Additional discussion — if this issue doesn’t interest you, just stop reading here — appears after the jump.
What frustrates us (as gossip-mongers) about Professor Burris’s post is that, after denying that Dolores Sloviter = Helga Friedman, he refuses to bring his personal knowledge of DKS to bear. He could have said, for example, that “Judge Sloviter is as lovable as your grandma.” Or he could have said, “she’s a royal bee-atch, but not for the same reasons as Helga Friedman.” Sadly, he does neither.
(In the comments, Professor Burris argues that he “tried not to engage this issue because of the unfair context created by the book.” Fair enough. But as connoisseurs of judicial dish, we have the right to be disappointed. And we draw an adverse inference from his silence.)
Professor Burris then proceeds to discuss the propriety — or lack thereof — of writing a book based on a bad clerkship experience:
[Professor Michael] Rappaport and [Volokh Conspirator Ilya] Somin… seem to invoke a principled reason for revealing the truth about an unhappy clerkship: the need to defend powerless clerks against all-powerful judicial tyrants. If only more people would out the monsters, law students could evade their clutches.
Sounds good, but actually this gets it just exactly wrong. I’m not arguing that law students would take the clerkships anyway, because the job is such a plum. That’s true, but no reason they shouldn’t do it with eyes open. No, I’m arguing that it is the judge, not the clerk, who is the dependent, vulnerable party in the relationship.
Imagine, you hold a position of enormous influence and responsibility. You work with brilliant colleagues who often publicly disagree with you and disassemble your reasoning. You must perform constantly before a critical audience of professionals (not to mention the public) who will scrutinize your every opinion. You have a heavy workload, plus various service responsibilities to the bar, law schools and the community. And every year, you’ve got to completely replace your key staff with kids fresh out of law school. If they are lazy, temperamental, can’t find cases or writes bench-memos in the idiom of the instant message, you are, as those IMers put it, FUBAR.
We dissent from this assessment. Our main response, while perhaps glib, packs some punch: it’s called life tenure. Unless a judge literally, physically abuses her clerks, to the point of criminal charges being filed, she’s probably not going to get ejected from the federal bench.
But there are more specific points to made as well. Luckily for us, one ATL reader who brought Professor Burris’s post to our attention has pretty much said what we were going to say. We reprint a few excerpts from this reader’s (long and interesting) email message:
I’m not buying it. If a judge is truly worried about replacing her key staff every year, she should just hire career clerks, or ask for two year terms. Maybe she’ll receive fewer applications, but there’s no doubt she could put together an effective chambers staff filled with long term employees.
True true. A number of high-powered judges have at least one career clerk — e.g., Judge Janice Rogers Brown (D.C. Circuit) — or have clerks who serve for longer than the standard one-year term — e.g., Judge Susan Graber (9th Circuit).
I agree that judges are vulnerable to the extent that they might end up hiring a clerk who doesn’t know how to effectively do the job, but I also think that judges can be really ineffective managers/administrators, which only exacerbates the situation. Because the clerk is only around for a year, maybe the judge thinks there’s no point in trying to correct an error or explain how to do the job better. But as anyone who has clerked can tell you, the actual job is filled with generally repeating tasks that don’t offer a lot of room for improvisation. If Burris is worried that a clerk “can’t find cases”, etc. then maybe the judge, as the clerk’s boss should help teach that skill?
We’d also add that federal appeals court judges are hardly “FUBAR” if they get one bad apple, or even two. Most circuit judges have four clerks (although some still go with the three clerk-two secretary model). If the judge gets one dud of a clerk, she can always direct more of the work to the competent ones, which judges regularly do.
(In fact, sometimes judges funnel work to certain clerks not because they have clerk duds, but because they just like or trust some clerks more than others. One Eleventh Circuit judge has two of his clerks work on his published opinions, while the other two — the ones whose résumés he deems less high-powered — toil away on the unpublished ones.)
I think judges are reluctant to fire clerks because it looks bad to applicants and to their fellow judges. Part of the clerkship hiring process, as far as I can tell, is a pissing contest along the lines of, “Check out my clerks this year… I’ve got a Harvard, a Yale, a Chicago and a Michigan…. How’d you do?” If someone hears that your Harvard is a dud and you’ve sacked them… well, maybe you get a little egg on your face. Ultimately, as far as personnel decisions and general management skills, I think there’s a lot of room for improvement in the federal judiciary. They don’t ever ask nominees about their management skills.
So, so true. The administrative disarray of some judges’ chambers supports our correspondent’s conclusion that “there’s a lot of room for improvement in the federal judiciary” in terms of management.
I also completely disagree that it isn’t the clerk who is vulnerable in chambers. Judges are the kings and queens of their little fiefdoms, and are completely unused to having someone say no to them. Generally speaking, there is little to no room for dissent within chambers (outside the opinion writing process, I mean). In most chambers that I’ve heard of, what the judge says goes, period.
Some judges are a lot nicer about how that gets implemented than others, and some are just more concerned with how their decisions impact their clerks than others. If the judge hires someone who is lazy and temperamental, then maybe it is the judge’s responsibility to address that problem directly, not with the passive aggressive behavior that many clerks are greeted with.
Amen to that.
I don’t know Judge Sloviter at all. But I do think that this whole Chambermaid [controversy] has done some interesting things with respect to the discourse about clerkships. There’s a general reluctance to speak negatively of a clerkship, because of the competition inherent in getting one and the understood prestige that comes with the job. But like any other job, sometimes you work for someone who sucks, or sometimes you find the work incredibly boring.
And the answer isn’t to only blame the boss, as Rao seems to do, or blame the employee, as Burris seems to do. Some law students who get hired as clerks suck as people, and probably suck even more as employees. But some judges suck as bosses, and guess what, also as people. I do think being more honest with one’s clerkship experience helps students who are thinking about applying, but I also think that there will always be people willing to clerk for even the most vile judge.
For sure — at least if they’re Article III judges! Federal magistrates, bankruptcy judges, state court judges — it depends….
Anyway, that’s more than you asked for or wanted probably. But that whole thing about the judge being the vulnerable one is laughable. I’d be hard pressed to find a group of people who are less vulnerable and more immune to reproach than federal judges. Sure, they may feel pressure to get good opinions out the door and not get reversed or disagreed with, but that’s no excuse for being a crappy boss.
Great stuff. We thank this thoughtful reader for taking the time to share his thoughts with us.
So, Judge, When Did You Stop Beating Your Clerks? [Concurring Opinions]