The Revenge of the Nerds, Supreme Court Style


"We have created an institutional situation where 26-year-olds are being given humongous legal authority in the actual wording of decisions, the actual compositional choices," a law professor told The New York Times recently. He was commenting on the role of fresh-faced graduates of the nation's top law schools serving as clerks at the United States Supreme Court.

Just why anyone would want a 26-year-ol lawyer to do anything other than cite check and take out the trash is beyond me. The life of the law is experience, not logic, Oliver Wendell Holmes, Jr., once famously remarked. Some tyro fresh out of law school is little more than an ideologue in a pin-striped suit.

But the Solons we place on the Court are seduced by youth. Disturbingly, the Times reports an increasing trend for conservative jurists to hire conservative clerks, and for liberal jurists to troll for liberal little geniuses. What's more, these young newly minted lawyers do a great deal of the law's heavy lifting, often playing key roles in deciding which cases the Court should hear, and drafting initial opinions. According to the Times, none of the current justices routinely writes the first draft of opinions.

There is something shameful about the law's nine superstars sitting in their chambers letting the children call life's larger shots. I don't care how smart a recent law school graduate is: After three years of hitting the books and learning to tap-dance to the satisfaction of law school professors, these kids don't know jack about life, liberty and pursuit of happiness. Little changes when then they spend a year or two preening for a Supreme Court clerkship at the feet of those feeder appellate judges such as former salon keeper J. Michael Luttig, who ran a high-class intellectual sweatshop for cranky little Federalists before fleeing the Fourth Circuit for big bucks as general counsel at Boeing.

I cannot fathom why a judge in his or her 50s, 60s or 70s is prepared to find intellectual solace in the company of someone young enough to be their grandchild. The law has texture gained only by experience; young lawyers are little more than social mathematicians. These rudderless young titans of the bar know the law's theory, but they have no sense of the human reality of the conflicts that bring a case to Court, and often keep a case in a court with often tragic consequences. What's even worse is the the folks at Biglaw are buying into this silly game: a kid fresh out of his clerkship can be paid a signing bonus of $250,000 for agreeing to work at some of the law's powerhouse firms.

It would make far more sense for justices to search for clerks who have shown brilliance and distinction at matching the law's theories to the messy assemblage of facts present in an actual conflict. Why are legal clerkships reserved for the least experienced members of the bar, the members without the wisdom that the passage of time can, but does not always, yield?

I say no Supreme Court clerk should be hired until they have practiced law for at least 20 years. Treat a clerkship as a sabbatical from the day-to-day reality of the practice of law. Let the justices spend time with trial lawyers, litigators and clients who do something other than navel gaze, write law review articles and avoid contact with actual clients with interests.

Not one of the current justices spent significant time as a trial lawyer, with the possible exception of Sonya Sotomayor. But she served as a prosecutor. There are no defense lawyers on the court. There are no defense lawyers among the clerks. The Court sits isolated in its pleasure palace spinning verbal webs that strangle real people. Is it too much to ask that at least a few of the clerks know what a trial court looks like and feels like?

Comments: (3)

  • Why indeed?!? ShAmE, sHaMe, SHAME! Defense attorne...
    Why indeed?!? ShAmE, sHaMe, SHAME! Defense attorneys wish to be recognized and acknowledged. And why should they not be? The essence of the 'law' is criminal defense. Everyone else is a poseur, wannabe, fraudster.
    Sonia SootyMayor,..., well, I may have to reconsider?!?
    Posted on September 7, 2010 at 1:05 pm by William Doriss
  • "I cannot fathom why a judge in his or her 50s, 60...
    "I cannot fathom why a judge in his or her 50s, 60s or 70s is prepared to find intellectual solace in the company of someone young enough to be their grandchild," Pattis writes.
    I've fathomed it: This situation Pattis writes about is but another area of the general corruption throughout government and corporate circles. In my area, one has to go no farther than the Bridgeport Superior Court on Main Street to encounter this, as I have in undertaking civil and criminal actions against corporate lawyers and subsequently judges and state's attorneys colluding with them to help them elude accountability for theft of thousands of dollars of property of mine. In one key hearing, the judge revealed that he hadn't even read my documents exposing witness tampering, forgery, and other crimes of the defendant criminal corporate lawyers. This judge was in league with the administrative judge of the time, who was the mentor of one of the corporate lawyers I verified was a criminal. I will be going after this judge in coming weeks, as I went after high-level state's attorneys, who are now maybe enjoying an unexpected retirement earlier than they had anticipated from my exposures and accusations as an investigative journalism.
    To a man (with women occasionally cynically used as fronts, as bait in entrapment schemes for me, for example), these were older white males who were more interested in prepping younger lawyers on how to defraud the public and give the appearance of legitimate authority as they had been doing for themselves for years. The older white males let the younger white males they see as their progeny take over so these younger ones can game the system as the older ones have for large financial gain and undeserved prestige.
    I thought Obama was on to this, which is one reason why I had hopes that he was maybe a transformative figure. But as we've seen with his response to the banksters and the continuation of the militarism in the Middle East, he's a dupe for it.
    Assuming the other judges at the Bridgeport Superior Court referred to have the sentience not to walk into door jambs as they stumble about the courthouse reaping the obsequiencse of lawyers, bailiffs, and court employees, one has to accept that they knew the judge appointed court administrator was the mentor of the lawyer I accused of crimes--now the corporate law firm's head of litigation--and understood the reason this judge was appointed was to collude with the criminal lawyers of his former law firm.
    I won't begin to go into the racism and misogyny I encountered right now. I expect before long the public will catch on to this casual corruption which has become the norm for government and the legal system. But it looks to me that the form of corruption Pattis describes (also reported in the NY Times) is another effort by privileged white males to cling to their privileges and power which are diminishing necessarily by demographic changes and also increasing public awareness of the corruption.
    As for the judge not reading documents I submitted exposing crimes attempting to cover up the original, undeniable crime of the theft of my property, why bother reading the documents when you already know how you're going to deal with the matter? This is more or less the attitude of the Supreme Court justices as implied in their selection of clerks. They're looking for automatons who are clones, that's all. What's unfathomable about this? Looking at it as unfathomable is only another measure to avoid reckoning with it.
    Posted on September 7, 2010 at 12:54 pm by Henry Berry
  • YES!! Thank you!
    YES!! Thank you!
    Posted on September 7, 2010 at 11:46 am by Katie

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