MEDIA

February 1, 2000

Judicial History: Judges’ Clerks As Judges

Published in: Federal Bar Council News | volume VII, No. 1

A number of judges in the Second Circuit have served as law clerks to other judges. Three of them recently shared their clerking experiences with the Federal Bar Council News, and compared their experiences with the experiences of their own clerks.

Judge Oakes

Second Circuit Judge James L. Oakes clerked for Judge Harrie B. Chase in the Second Circuit twice, in 1947-48 and again in 1949-50. Judge Chase was Judge Oakes’ predecessor once removed as the Second Circuit Judge from Vermont. Judge Oakes clerked for one year, then left Vermont to practice in California. He went to San Francisco and soon called Judge Chase and asked him if he could come back for a year. Judge Oakes has been in Vermont ever since. Coincidentally, one of Judge Oakes’ present clerks was his clerk in 1996-97. She went to Washington, D.C., then married a Vermont man, and came back to work for Judge Oakes.

When Judge Oakes clerked for Judge Chase, times were simpler. Judge Chase had one law clerk and one secretary, who used a typewriter and carbon paper. Judge Chase sat one week a month, nine months a year, hearing 15-17 cases a week. There usually were three arguments a day and each side had 20 minutes-to argue. Neither the judges nor the clerks read the briefs in advance. Following oral argument and without discussing the cases with other members of the panel, each judge wrote a voting memo in which he explained how he voted and why. The law clerks contributed to the voting memoranda. The Friday of the following week, the judges conferred and assigned opinions. Then, each judge went back to his chambers and wrote his opinions. The judges drafted their own opinions, which were handwritten on yellow paper. The law clerks would edit the opinions, make suggestions, and cite check.

In the second year of his clerkship, Judge Oakes drafted five opinions while Judge Chase was in Florida on vacation. Judge Chase was very pleased. When Judge Oakes clerked, the judges on the bench were good friends. Judge Oakes would accompany Judge Chase when he visited other judges to exchange views on cases. In addition, Judge Oakes and Elliot Richardson, who was Learned Hand’s clerk, had worked on the Harvard Law Review together, creating a bond between them. The court was smaller and simpler because of the fewer number of people and lighter case load. The judges had time to see and get to know each other. For the most part the cases were simpler, too. Now, all the judges on a case read the briefs before oral argument and their clerks will do research if the law is not clear so that each judge comes into argument prepared. Arguments are shorter and more directed because the judges are hearing four to five cases a day instead of three. Case conferences with voting and opinion assignment take place right after a sitting because there are different panels every day or two. If a case is complicated or controversial there might be a post-argument memo, but on the whole there is not as much time for consideration of each case as there was 50 years ago.

Judge Oakes’ law clerks today do the drafting and the judge does the editing. The huge increase in caseload mandated this role reversal. The number of cases docketed each year has risen from 600-800 to 5,000 today. When Judge Oakes clerked there were six judges, now there are 14 active judges and 5 to 6 senior judges, leading to a considerable lessening in the opportunity for social conversation.

Today the judges try to maintain the congenial atmosphere that existed 50 years ago, despite the greater caseload and greater number of judges. The Second Circuit judges get together at court functions, memorial services, and swearing in ceremonies. In addition, the judges have court meetings several times a year, to which senior judges are also invited.

Judge Leval

What Judge Pierre N. Leval remembers most distinctly about his clerkship in 1963-64 with Judge Henry J. Friendly is that Judge Friendly "knew the law." Judge Friendly had such a comprehensive and integrated command of the United States Code and Second Circuit case law that he was able to decide an issue quickly and sit down and write an opinion by hand. Judge Friendly wrote opinions on a pad using each line from paper edge to paper edge, making few corrections. If he needed to verify a quote that he would write from memory, he would go to the Federal Reporter and pull the correct book from the shelf. According to Judge Leval, the other judges would say that there was not a lot for Judge Friendly’s clerk to do. As Judge Friendly’s clerk, Judge Leval would read his opinions, cite check them, and raise questions. For a judge with such a powerful command of the law, Judge Leval disclosed that Judge Friendly was very open to questions and comments, would consider them, and either change the opinion or not as he quickly determined was best.

Judge Leval’s clerks today have a more traditional clerking experience than his clerkship with Judge Friendly. Judge Leval’s clerks do initial research and drafting and then Judge Leval and his clerks pass the opinions back and forth. Both the judge and his clerks participate in the drafting. Aside from the extraordinary abilities of Judge Friendly, Judge Leval attributes his need for assistance from his clerks to the increase in the caseload, which does not allow the judges time to draft their own opinions. In addition to a volume increase, Judge Leval attributed the increase in work to the proliferation of federal statutes that are longer and more detailed than statutes in the past. Judge Leval stated that in trying to provide all the answers so that the judges have nothing to interpret, Congress has created more ambiguities. Judges know how to deal with the ambiguities, but now have more work.

Judge Batts

Judge Deborah A. Batts clerked for Judge Lawrence W. Pierce in 1972-73 when he was a District Court Judge of the Southern District of New York. Judge Batts described Judge Pierce as one of the most organized and methodical persons she has ever met. He knew the status of each of his cases and followed all his cases through a pin system on a large bulletin board. Judge Batts was in Judge Pierce’s second set of law clerks, so she believed he developed his organizational skills working as Chair of the New York State Narcotics Addiction Control Commission and Director of the New York State Division for Youth.

Judge Batts said that Judge Pierce viewed the clerkship experience as a learning experience. Thus, the clerk assigned to a particular case would be involved with every facet of the case, accompanying the judge at all times in the courtroom at a hearing or trial or motion argument. Judge Batts drafted opinions as a clerk and then she and the judge exchanged them back and forth until they were polished. The clerks typed opinions, which were marked up by the judge and then typed by the judge’s secretary. Judge Batts describes Judge Pierce as fair, effective, and efficient with his law clerks, and as a wonderful model that she strives to emulate, Judge Batts describes her clerkship as valuable for everything she subsequently has done as a lawyer and as a judge. In her own chambers, Judge Batts strives to give her clerks a similar experience by involving her clerks in every aspect of a case. All her clerks are in and out of her office and she is always ready to confer with them. There is a lot of back and forth in polishing opinions. Often, Judge Batts will discuss issues with all three of her clerks, creating a collegial exchange of ideas. She has three clerks and no secretary because today everyone, including the judge, uses the computer. As a result, each clerk has a lighter caseload, but each has to finalize opinions and answer the telephone. Judge Batts even takes notes in court on a laptop.

Bennette Deacy Kramer is a partner at Schlam Stone & Dolan.

[This article is reprinted with permission from the February 2000 issue of the Federal Bar Council News. Copyright © 2000 Federal Bar Council. All rights reserved. Further duplication without permission is prohibited.]