When I clerked on the Ninth Circuit years ago, one of the judges on the court at the time was extremely old — and didn’t seem very “with it.” His law clerks seemed to take on a large amount of responsibility. One of his clerks that year, a law school classmate of mine I’ll call “Mary,” would negotiate over the phone with Ninth Circuit judges over how particular cases should come out — a responsibility well beyond the legal research and opinion drafting done by most clerks.
On one occasion, a vote on whether to rehear a case en banc emanated not from the judge’s chambers account, but from Mary’s personal email account. Even more embarrassingly, it was written not on behalf of the judge or the chambers, but in the first person: “I vote YES to rehearing en banc.” A law school classmate of mine who was also clerking for the Ninth that year remarked, “I thought only judges did that. When did Mary get her presidential commission?”
Some of us jokingly referred to that chambers as Weekend at Judgie’s. What appeared to be going on over there reminded us of Justice Thurgood Marshall’s famous quip to his clerks: “If I die, prop me up and keep voting!”
We joked about this delegation of Article III authority to a newly minted law school graduate. But as Joseph Goldstein suggests, in a very interesting article just published by Slate and ProPublica, the issue of superannuated jurists is no laughing matter….