Judges, Clerks, and Ideology:
When blogging my request for advice to soon-to-be law clerks, I forgot to mention this piece by my ex-boss, Judge Kozinski, and one of his ex-clerks, Fred Bernstein (whom I also know well): Clerkship Politics, from the Green Bag. I highly recommend it.
Related Posts (on one page):
- Advice to Future Federal Court Law Clerks:
- Judges, Clerks, and Ideology:
- Preparation for Soon-to-Be Judicial Clerks:
My impression is that most judges hire candidates right out of law school. Is this accurate? What is the chance that someone out of school for a few years could be successful in applying to some lower-level clerkships?
Partly this was just luck -- no cases on sex toys or parental consent for abortion -- but also I think because we were both mainly interested in figuring out the applicable law and applying it. That's 98% of what any appellate judge does, I suppose, and I don't think it matters for that whether one is conservative or liberal.
Now, if you're interested in rolling back certain precedents because of your conservative ideology, or because of your liberal ideology, I'm sure that would get you into trouble. But I am not terribly ideological where the law is concerned -- very little legal theory has much practical effect where judging is concerned.
But there were many more cases in which I worked hard to articulate and disseminate arguments that are antithetical to my own views. And I don’t think that’s something students should aspire to.
I call that "working for a living," myself. The whole point of being a lawyer is that I am advocating for someone else, and my beliefs aren't relevant. That's why I get paid for doing it, instead of working for the joy of giving.
Would Bernstein be happy to represent at trial one of the capital defendants he's so solicitous of, knowing perfectly well that the guy is in fact guilty, but hoping to get him off on a procedural bit? I bet procedure vs. merits would look a lot different then.
(The one notable item I took from this "article" was Kozinski's comment about Reinhardt - if that's true, Reinhardt is an even more pathetic than I give him credit for)
I've heard some private stories about the sorts of things that Kozinski expects of his clerks. It is by no means the worst I've heard (I know of one judge who made his clerks write college term papers for his daughter), but its not praiseworthy either.
Would you pass along to Judge Kozinski or the good people at Green Bag the fact that there's an error in the first footnote of the article? Specifically, Mitchell v. Prunty can be found at 107 F.3d 1337, not 101 F.3d 1337.
Thanks.
Yeah, be sure to pass that one on ...
My two cents: If you work for a really, really ideological judge, and your political persuasion is the opposite of theirs', it can be really frustrating. Most judges try not to inject their ideology into judging, so in most cases ideological differences wouldn't matter much. But there are some judges who let their personal beliefs influence their actions so thoroughly that working for them is just disheartening.
As other comments have noted, most cases are not overtly political, but this does not mean that judicial ideology does not influence the outcome.
Ideological differences regarding how a judge defines the issues involved and categorizes the factual record can often have a larger influence on the outcome of a case than does the judge's application of the law.
How often a judge denies summary judgment is one example. Although the summary judgment standard is presumably not in dispute, how it is applied can certainly vary. One judge may read the evidence presented narrowly and limit it to just want is identified in the briefs, another judge may have the clerks extensively comb the record and make inferences based on information not cited by the parties. Even if these judges apply the same law in all their cases, one would expect the former to deny summary judgment more often than the latter.
Considering that most cases are poorly litigated (especially by individual plaintiffs/criminal defendants), ideological differences on the role of judges can result in very real differences in the outcome of cases, even if judges of all ideological stripes essentially agrees on the applicable law.
In my experience, these sort of ideological differences on the proper role of a judge are much more likely to arise than disagreements on more traditional conservative vs. liberal political issues (since the latter category arise so infrequently).
You are right of course about the summary judgment standard, and its not clear that the judges even have to be applying the same standard. In 99% of the cases, a denial of summary judgment is not reviewable. So, if a judge prefers to have cases go to trial, he can let them.
From what I saw, many of the judges were concerned with the size of their docket, and especially with the number of old (3+ years) cases. These judges were more likely to want to dispose of cases on summary judgment. I didn't see much correlation to political ideology here.
The judges who were more laid back about summary judgment, and their docket in general, tended to take the view that almost all the cases were likely to settle anyways, and the threat of a trial was just more likely to push the cases into settlement.
This of course has real world consequences, but I'm not sure that the judge's ideology had much to do with it.
That's one way to look at it. Alternatively, you only have 7,000 possible hours in which to clerk, and infinite hours post mortem in which to sleep.