2nd Circuit, Clerkships, Federal Judges, Gerard Lynch

Reflections on Judging from Judge Gerard Lynch
(And a defense of elitism in law clerk hiring.)

Gerard Lynch Judge Gerard E Lynch Gerard Edmund Lynch Second Circuit SDNY.jpgOn Monday, November 16, we attended an interesting talk by Judge Gerard Lynch, formerly of the Southern District of New York and now on the Second Circuit. He spoke before the Regis Bar Association, a group of lawyers and law students who are graduates of our shared alma matter — Regis High School, an all-boys Catholic school run by the Jesuits, located here in New York.

As one would expect from a federal judge, especially one in a high-powered city like NYC, Judge Lynch has an amazing résumé. He graduated first in his class from Regis, first in his class from Columbia College (1972), and first in his class from Columbia Law School (1975). He clerked for Judge Wilfred Feinberg on the Second Circuit, followed by Justice William Brennan on the Supreme Court. Prior to his appointment to the district court in 2000, Judge Lynch was a law professor at Columbia, worked in private practice (at a firm that would later become part of Covington & Burling), and served as an assistant U.S. attorney in the legendary U.S. Attorney’s Office for the Southern District.

In September, Judge Lynch was confirmed to the Second Circuit by a vote of 94-3. He was the first Obama appointee to be confirmed to a circuit court.

Judge Lynch began his remarks to the RBA by discussing his background. He explained that he came from working-class roots and was the first in his family to graduate from college. He also noted that government lawyers and judges don’t make very much money: “As a public servant, first-year associates at large law firms have generally made more than I have,” he observed, before adding: “Thanks to the recession, that’s changed.”

(A federal district judge, which Judge Lynch was until his recent elevation, earns $169,300 a year — a bit above the New York starting salary of $160,000. As a circuit judge, he now earns $179,500. If Judge Lynch were to become Justice Lynch — he is sometimes mentioned on Supreme Court shortlists, although being a 58-year-old white male doesn’t help — he would earn $208,100, as an associate justice. Despite many years earning a government salary, Judge Lynch has done well for himself; his financial disclosures reveal a net worth of $1.6 million, with zero debt.)

Judge Lynch described being a trial judge as “the greatest job you can have.” Find out why, after the jump.

Judge Lynch identified several reasons supporting the awesomeness of being a federal district judge:

  • Your relationship with the lawyers: You get to know the lawyers who appear before you, and you can follow their professional development over the years. (Judge Lynch suggested that circuit judges seem to be more removed from the bar.)
  • The jury process: “I think it functions beautifully,” Judge Lynch said of the jury trial system. It’s amazing to watch people from different backgrounds come together to do serious work. Did you hear that, jury critics?
  • The human drama: The courtroom is like “a little theater,” according to Judge Lynch (an avid theatergoer himself; we compared notes on a few productions with him at a Regis Bar Association event two years ago). Litigants and witnesses appear before you and tell you their stories. To use the language of hip-hop — Judge Lynch has presided over a number of matters involving music stars, including Eminem and Lil’ Kim — your job as a trial judge “is getting all up in people’s business.” (These words, uttered by the bespectacled and academic-looking Judge Lynch, generated laughter.)
  • The power: As a district judge — in total control of the proceedings, not just one vote among three on an appellate panel — you have a great ability to determine the actual outcomes of cases. Only a fraction of cases get appealed, and only a fraction of those cases get reversed. For most cases, the district court gets the last word. (Judge Lynch said he has handled about 3,000 cases and issued 900 opinions during his nine years on the district bench. He has been reversed in only a dozen cases or so, according to his Senate questionnaire (PDF) — and that’s counting Bell Atlantic v. Twombly, discussed below, in which the Supreme Court reversed the Second Circuit’s reversal.)

Judge Lynch discussed the virtues required of trial judges. He identified two: craftsmanship and decisiveness. On the former, he noted that as a federal judge, nobody requires you to show up to work. There is surprisingly little supervision, even from your chief judge, and you enjoy life tenure anyway. So, for the federal judiciary, you’re looking for “self-motivated workaholics” — people who care deeply about the craft of judging and opinion writing, who won’t take advantage of the shirking opportunities offered by the federal bench.

Judge Lynch then turned to the issue of Supreme Court appointments. He expressed disagreement with scholars who have urged the president to appoint justices who are very young and very liberal, to adopt a strategy employed successfully by conservatives (e.g., John Roberts, Samuel Alito, and Clarence Thomas). Might this be viewed as a subtle effort by Judge Lynch, a 58-year-old white male not known for being a radical-left judge, to advance his own Supreme Court candidacy?

There are at least two reasons why President Obama shouldn’t go for the young and the liberal, according to Judge Lynch. First, there is the value of experience, both in practicing law and in judging, and this can only be acquired over time. Second, on the issue of ideology, it’s hard to say what or who will be considered “liberal” or “conservative” forty years from now. The issues change over time, as do the players. E.g., Felix Frankfurter, appointed to the Court as a liberal but ultimately ending up as a conservative.

What about the E-word — “empathy”? Judge Lynch offered a defense of empathy as a value, which he described as a critical capacity for a judge. To facilitate the resolution of disputes, you need to understand the parties’ wants and needs, and where they are coming from.

Then Judge Lynch took questions from the audience. One questioner asked why judges don’t want to try cases anymore. Judge Lynch turned the query around on the questioner: Why don’t lawyers want to try cases? So many cases settle on the brink of trial, perhaps because lawyers are afraid of (1) the unpredictability of juries and (2) attorneys’ fees (which is why the city of New York settles so many cases; even a nominal settlement may require the city to pay huge legal fees to the plaintiff).

The next question asked about the landmark case of Bell Atlantic v. Twombly, in which the Supreme Court tightened up pleading standards in antitrust cases (and, arguably, in civil litigation more generally). The questioner asked Judge Lynch, who handled the case in the trial court, if he had a sense of how important the case would eventually become.

Judge Lynch said he had no idea that the case would turn out as it did. He did say that his favorite aspect of the matter was that “I got reversed by the circuit, but then the Supreme Court reversed them — trial judges love that!” As for the SCOTUS decision itself, Judge Lynch said that it will give district judges more leeway or discretion to dismiss what they see as bad cases (which could be good; after a while, trial judges get a good sense of which cases are weak and which ones are strong).

We asked Judge Lynch about the clerk hiring process. He explained that, due to the vast number of applications, he and his clerks can’t look at most of them. There’s incredible competition — not just among the applicants but among the judges, due in part to the Law Clerk Hiring Plan, which causes everyone to move at the same time.

Judge Lynch talked about how one year he set up an interview with an applicant at 9 a.m. on the first day interviews were permitted under the Plan. At 8:50 a.m., she called chambers to say she had accepted another clerkship, after an interview that had started at 8. Judge Lynch’s clerk said: “Next year you should start interviews at 7!”

(One response of many judges to the insanity: hire people who are a few years out of law school, and therefore not governed by the timetables of the Law Clerk Hiring Plan. Given all the deferrals and layoffs taking place in law-firm land, such candidates are not in short supply.)

As for the credentials he looks for in clerks, Judge Lynch aims for the top. He focuses his clerkship application review on candidates from a selection of top schools. He had these comments (offered with a slightly humorous edge, but not completely in jest):

I’m an unabashed elitist. My clerks are largely liberal, big believers in due process. I tell them: there is no due process here. Nobody has a right to this job. We need to find someone who will do good work.

Judge Lynch added that many candidates from outside his list of top schools would do good work, of course. His decision to focus on just a handful of leading law schools is aimed at streamlining the hiring process and making it more efficient. He offered this colorful formulation:

If you’re Pete Sampras, you can afford to date only supermodels. You set up this [admittedly arbitrary] rule, but sooner or later you’ll find a supermodel who is smart and nice too.

To put it another way — and this is not Judge Lynch’s analogy, but our own — judges hiring law clerks are looking for the proverbial needle in the haystack. The haystack of fantastic clerkship applications from, say, the top 14 law schools — or even the top five, if you’re a judge on a particularly desirable circuit or district — is already huge. Is it therefore truly necessary to review every application from every law school?

(And keep in mind that there is a “safety valve” here. Most judges who focus on top schools in their clerk hiring will consider truly outstanding applicants from other schools if the applicant is recommended by someone they know personally and trust.)

It should be noted that Judge Lynch isn’t the only jurist who takes this school-focused approach to law clerk hiring. On the other side of the aisle, Justice Antonin Scalia was even more frank. Here’s what he said in a talk at American University’s Washington College of Law:

[Justice Scalia] turned to a discussion of the student’s chances of obtaining the ultimate credential in American law, a clerkship with a Supreme Court justice. Not good, he said.

“By and large,” he said, “I’m going to be picking from the law schools that basically are the hardest to get into. They admit the best and the brightest, and they may not teach very well, but you can’t make a sow’s ear out of a silk purse. If they come in the best and the brightest, they’re probably going to leave the best and the brightest, O.K.”

Some might take offense at the Justice Scalia / Judge Lynch approach to hiring clerks, which is focused intensely on educational pedigree. But they’re just doing what many other judges do. Don’t get mad at them because they’re more honest about it.

In any event, even if you have an excellent academic record at a highly ranked law school, you’re not guaranteed success in the clerkship search — at least not in this market. Clerkship applications are up 66 percent this year, as law school graduates and young lawyers turn to the federal government from refuge from the economic storm. Good luck to all in the hunt.

Want to be on the 2nd Circuit? Maybe Don’t Ask [The BLT: Blog of the Legal Times]
On the Bench and Off, the Eminently Quotable Justice Scalia [New York Times]
Clerkship Applications Up 66 Percent From Last Year [Blackbook Legal Blog]

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