Cudahy, Richard D.

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The Sweet Reasonableness of Federal JudgesHON. RICHARD D. CUDAHY*It is time to celebrate the rites of spring. No, not birds or buds or evenbaseball. For federal judges, no spring rite is more precious than the annualdraft of law clerks, those precocious luminaries whose most certain virtue isinexperience and who help judges do their thing.Some would say more than help-that the law clerks are the ghostwriters ofthe Federal Reports. That is a cruel saying, even if occasionally true. Whateverthe function of these tyros, nothing could be as splendid as the annual quadrillefrom which they emerge.For, despite some carping by disgruntled clerk candidates, it is clear thathiring law clerks is one of the things federal judges do best. The annual hiringrite is a model of cooperation and teamwork-qualities for which the federalbench is rightfully celebrated. In fact, the history of law clerk hiring bespeaksan impressive capacity to prefer the common good over petty selfish interest. Inthese bleak times, the selfless judiciary stands one for all and all for one.Federal judges hire their clerks midway through their second law schoolyear. The rules this year, as they have for several years past, called on judgesto conduct no interviews and to make no offers before the first of March. Allwere held at the starting gate until released on that fateful day with the scent oflaw clerks in the air. Time and again the federal judges were sorely tempted tobreak early from the gate; time and again they clung steadfast to their sacredpledge.This year, March 1 fell on a Saturday. Those somnolent judges who tarrieduntil Monday, March 3, to conduct their first interviews were greeted insteadwith the carnage of a Saturday Night Massacre. For these feckless jurists theshelf of applicants was bare. All these laggards checked their voice mail onMonday morning only to be told by their prospective interviewees that they hadtaken jobs with other, more alert, judges.In spite of the Massacre, it is simply unthinkable that any judge would failto honor at least the letter of the March 1 deadline. Presumably, the lawstudents had been interviewed between 12:30 and 1:00 a.m. on Saturday andhad accepted offers at approximately 1:03 a.m. on the same day. In fact, itappears that some judges conducted their interviews in Bermuda, therebyplacing themselves one hour ahead of Eastern Standard Time and enabling themto move that much faster. Some other judges apparently believe that theBermuda ploy-even if legal--disregarded the spirit of the rules. Next yearthese embittered judges plan to interview in Paris, or possibly Moscow, in* Judge, United States Court of Appeals for the Seventh Circuit.OHIO STATELAWJOURNALorder to get the better of those still operating out of Bermuda and other lessEasterly points.Whatever the case, we can rest assured that compliance this season with theMarch 1 benchmark was universal. Even if the interview was conducted inAlma Ata, it was still March 1 (Gregorian calendar). Rumors that certainjudges interviewed as early as Christmas Eve have been hotly denied. Onejudge huffed that he always welcomes law students (in the top 1% of their class)to visit his chambers to enjoy a friendly cup of coffee. If the name of such acongenial student subsequently pops into the judge's mind as a choice for lawclerk, this is purely a coincidence and certainly did not involve an interviewbefore the date to which he was sacredly pledged.I. OF THE TIME OF TROUBLES AND BEYONDThe history of law clerk hiring is a tale of close cooperation in the serviceof the loftiest judicial aspirations. Before 1984, second-year law studentsaspiring to be clerks were interviewed and hired beginning about April 15. Thatjust happened to be the date when the Harvard Law Review elected a newEditor in Chief. On the evening of that person's ascension, he or she received atelephone call from Judge Skelly Wright of the D.C. Circuit and was hired onthe spot. That traditional, almost mythic, call was universally accepted as thekick-off of the hiring season.In 1983, the deans of the leading law schools persuaded Chief JusticeWarren Burger that, if a later date for hiring could be observed, all the second-year grades would be available for inspection by the judges. The process wouldbe fairer (and perhaps the Harvard Editor in Chief would have proved a flash inthe pan). So, at the behest of the Judicial Conference of the United States (but,of course, without consulting the judges who did the hiring), the hiring date wasmoved from April to the following September 15.Apparently, the judges could not tolerate this additional five months ofsuspense in finding out who their law clerk was going to be. This would explainwhy the only applicants still available on September 15 did not include any lawreview editors in chief-or even circulation managers. The September date wasquickly abandoned. The next choice fell on July 15. This date proved just asunworkable because law students were nowhere to be found in July. They wereeither buried in the tax reporters of some law firm library or biking throughUzbekistan.There followed an eight-year interregnum or "Time of Troubles." Variousjudges, individually and collectively, made proposals of varying complexity toharness the untapped spirit of sweet reasonableness that imbues the federaljudiciary. Judge Patricia Wald of the D.C. Circuit advocated a computerized[Vol. 58:519SWEET REASONABLENESSmatching system like the one used to match prospective interns with hospitals.1Judicial sentiment around the country seemed to be, "That's O.K. for the does,but what we're doing here is really important." In 1990, four judges proposed aplan that featured delaying offers (to be made simultaneously to the chosenapplicants) until May 1 at 12:00 noon, Eastern Daylight Time. Apparently, noone thought of the problems of the University of Hawaii, where the appointedhour came before dawn. When the simultaneous offer scheme was put to thetest, there was a totally unforeseen split between the judges whose offers wereaccepted and those whose offers were spumed. To everyone's completesurprise, the first group thought the system was brilliant, while the latter couldnot be quoted. Since the second group of judges were a lot madder than the firstgroup were glad, the elaborate plan was scrapped.The demise of the simultaneous offer arrangement brought on a period offrantic bottom-fishing. The "bottom" in this case referred to the latest date onwhich a judge could schedule interviews without being wiped out by thecompetition. The "bottom" moved rather quickly from March back towardValentine's Day, toward Christmas and then on to Thanksgiving andHalloween. There seemed to be no hard "bottom" short of the Fourth of July.Soon law clerks would be hired before they decided to go to law school. Therewas a sense that evil spirits had entered into the affairs of the judges, bringingconflict and despair in their wake.II. A NEW HOPE?But there was hope. Certain wise and compassionate judges were watchingas the hiring procedure teetered on the brink of the abyss, waiting for some signthat an intervention would be welcomed and a new system adhered to. One ofthe watchers was Judge Stephen Breyer, then of the First Circuit. Judge Breyerhad been proposing solutions to the clerk-hiring puzzle almost, it seemed, sincetime immemorial. His solicitude for the plight of his brethren was touching. Hehad an abiding, perhaps naive, faith in the essential goodness of the judiciary. Ifonly one could tap into that great well-spring of goodwill, recommendationletters could once again flow untroubled into waste baskets throughout the land.Law clerks could at last be hired in peace. This was the vision of empyreanbliss that entranced Judge Breyer as he prepared to ascend heavenward in thegeneral direction of the Supreme Court. He would leave behind as hismemorial a huge empty canvas bearing the tile, "The Unknown Applicant"-arendering of a creature who left no corporeal trace beyond the beep on ananswering machine.I See Patricia M. Wald, Selecting Law Clerks, 89 MtcH. L. REv. 152, 160 (1990).1997]OHIO STATE LAWJOURNALJoining Judge Breyer in his death watch at the bedside of the ailingjudiciary were two other leaders-Judge Ed Becker of the Third Circuit andJudge-in-waiting Guido Calabresi (a wannabe of the Second). This troika,which had been relying heavily on tea leaves and the entrails of domestic pets togive them a sense of the direction of judicial thinking, now turned to scientificpolling and even to focus groups.The results were dramatic. The evil spirits fled. The judges were restoredto their earlier and true sweet reasonableness. Polling data shot off the chart infavor of a benchmark hiring date. At a national workshop for federal appellatejudges in Washington, those in attendance shouted themselves hoarse in favorof a new system of law clerk hiring. The judges voted all power to MaximumLeaders Becker, Breyer, and Calabresi. After at least five earlier failed effortsat reform, these judges held the last hopes of the federal judiciary, if not forsalvation, at least for sanity. The three judges then moved with dispatch toestablish the March 1 date. The Judicial Conference endorsed this last-ditcheffort, endowing it not with the force of law but at least with the menace of avoodoo curse.The rallying of the judges around the March 1 date has been touching.Compliance has brought tears to the eyes of even the most hardened judge-basher. Paranoia has been totally absent. Judges are almost pathetic in theireagerness to believe only the best about their brothers and sisters. Whenapplicants with their own agenda carry tales of other judges interviewing beforethe sacred date, the judge to whom the tale is told angrily rejects it as acontemptible fabrication. And the universal impulse to help the institution of thecourts even at one's own expense is inspiring. Often judges observe that certainbrilliant candidates are over-qualified and send them packing down the corridorto a judge who they are quick to concede is a touch brighter than they are andcan better engage a near genius at close quarters. All told, if there is any doubtthat judges are team players, one ought to be impressed by their selflesscommitment to the March 1 benchmark.III. A GOLDEN AGE?However, one must also concede that the March 1 benchmark is a bitrudimentary, maybe even for such simple folk as judges. Judges deserve amore sophisticated approach-like, for example, the medical match system.Now that they have the March 1 benchmark under their belts and fullydigested, it may be time for a scheme that is a mite more challenging. Oneproposal by the dean of an obscure law school that operates on cruise ships is toinstitute something akin to the National Football League draft. Judges could beranked in the order of brilliance of their opinions. The judge producing the least[Vol. 58:519SWEET REASONABLENESSbrilliant, or most inept, opinions (in the view of the lawyers who had to readthem) would have the first pick of a law clerk. All the other judges (in reverseorder of ineptitude) would then make their selections. The most able judgewould get the last pick-possibly a graduate of the S.S. Princess Law School.This method might tend to equalize the quality of the product emanating fromthe federal courts and would certainly do a lot for mediocre graduates ofmediocre law schools. All that is required is for some group of brilliant judges,like Judge Becker, Justice Breyer, and Judge Calabresi, to volunteer happily totake the last picks in the draft.Another challenging proposal-characterized as "populist"-has been madeby a militia group composed exclusively of disaffected law students. This "Sonsof Liberty" group, which publishes the Second Amendment Law Review,believes that, instead of the students traveling to be interviewed by judges, thejudges should travel to be interviewed by students. Their declared mission is toexpose liberal activist judges, who might have in mind drawing unsuspectinglaw clerk aspirants into a conspiratorial web. If the judges had to do thetraveling, the liberal activists-notorious elitists-would certainly insist on firstclass travel and thus show their true colors. These hateful activists would nodoubt promote some new, big-ticket federal program to pay their air fares. Itcertainly is true that unmasking unreliable elements in the judiciary is a highpriority. The militiamen (not gender neutral) deserve to be heard.One last clever overture for hiring clerks has been made this season byfifteen influential law school deans, who have (wisely) requested anonymity. 2These deans have suggested that clerkship applicants be given twenty-fourhours to mull over a judge's offer of employment before being required toaccept or reject. This makes perfect sense. It gives the applicant (assumed to befemale for purposes of this example) time to phone all the judges she hasinterviewed with and who told her to call if she got an offer from anotherjudge. These earlier judges are thus put on the spot either to make an offer or tofold ignominiously with stammered apologies. Assuming that most are ashamedto fold, the applicant can assemble quite a portfolio of offers from judges whomay or may not really want her as their law clerk. The applicant can thencontinue the bidding by asking each of the numerous offering judges whetherthat judge will also hire her boyfriend as a law clerk. The bargaining need notstop here. For the law student may ask each potential employer whether thejudge in question will hire her former boyfriend as a third clerk. The bargainingmay go on: there are still places to be found for the student's additionalboyfriends as the judge's press flack, speech writer, secretary, and so on. Thus,2 See Letter from Fifteen Unnamed Deans to All Federal Court Judges (Sept. 17, 1996) (onfile with author).19971524 OIO STATE LAW JOURIVAL [Vol. 58:519if the proposal of the Fifteen Unnamed Deans is taken to heart, the winningjurists will acquire staffs not only of the customary brilliance but also infused byan extraordinary-perhaps explosive-chemistry.But for now, and with due respect to these more complex and demandingproposals, we must reconcile ourselves to the fact that judges are a simple loton the whole. They are to be commended for their unflinching commitment tothe modest strictures of the March 1 benchmark. This system is even simplerthan the simplest jurist or dean or potential law clerk could hope for. WhetherSaturday or Monday, whatever time of day or night, a solitary date, March 1,is all that counts. Even a judge without a law clerk can fathom that.

The Sweet Reasonableness of Federal Judges

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The Sweet Reasonableness of Federal Judges

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