Todd C. Peppers - Of Courtiers and Princes: Stories of Lower Court Clerks and Their Judges

No one is more knowledgeable about judicial clerkships than Professor Todd Peppers. Just when you think he has exhausted the subject, he comes up with a new wrinkle, as in this absorbing collection of recollections by former clerks on the federal courts of appeals, federal district courts, and state supreme courts.

The clerkships on these courts are much different from clerkships on the Supreme Court. The cachet may not be as great, and the law firm bonuses upon completion of service may not be as high. But the jobs are every bit as important and in many ways every bit as difficult as clerkships on the Supreme Court.

The state and federal appellate courts are where law first shifts from relative informality to a more formal posture, from a greater emphasis on finding facts to a de novo review of questions of law. And on those legal issues, the clerks and judges whom they serve struggle with far less assistance than clerks on the Supreme Court.

The briefing and argument in state and federal appellate courts is strikingly uneven, and judge and clerk alike are sometimes forced to make the best of presentations whose quality leaves much to be desired. The number of amicus briefs in those courts is increasing but remains far below that of the Supreme Court. I tell my clerks that we need to make the best call under law that we can, but prepare to watch thirty or so different amici complain to the Supreme Court how appallingly wrong we were.

All this is to say that the clerks on the lower federal and highest state courts will be dealing with law in a more primitive state. But this is not all badthe lower courts have the chance to shape a case before the issues are frozen, which they often are by the time they reach the highest court.

Some lower court clerks arrive with the thought that their clerkship is a stepping stone to a clerkship at the Supreme Court. That is altogether understandable, but at the same time a big mistake. Experiences should not be instrumental but valued for their own intrinsic worth.

From the perspective of the bench, clerks are family. If not sons and daughters, then certainly nieces and nephews. The marvelous recollections in this volume show the deep bonding between clerk and judge, the intergenerational communication that is equaled nowhere else in government, the education into the workings of an entirely co-equal branch, the opportunity to vitally contribute to the functioning of our indispensable judicial system, and the chance to become ambassadors for the values of that system long after the clerkship ends.

All these are open to every clerk on every court, no matter what the perceived prestige of the judge or tribunal might appear to be.

It is difficult to point to one or two essays as especially illustrative of the inimitable clerkship experience. All the essays make a special contribution because every judge and every clerk is unique. And even the briefest sampling conveys the unparalleled education and mentorship a clerkship yields. Justice Ruth Bader Ginsburg, for instance, credits Judge Edmund L. Palmieri with teaching her not only about the art of good judging, but also about the art of good living. David M. Dorsen notes how Judge Henry Friendly would light up with joy when a clerk challenged him with a cogent counterargument. Anna R. Hayes describes the inner workings of the North Carolina Supreme Court from her vantage point as a clerk for Justice Susie Marshall Sharp. Ronald Krotoszynski recounts the role Judge Frank M. Johnson Jr.s clerks playedincluding writing bench memoranda, opinion drafts, and speechesin shaping the civil rights movement of the mid-twentieth century. And Barry Sullivan writes how Judge John Minor Wisdom showed his clerks by his example that one could be a great lawyer and judge without being crotchety or cynical or sour.

These recollections also show judges and clerks operating in many different ways. Its all a question of what works for the judge. Some judges, such as Judge Burnita Shelton Matthews, keep their doors open so that clerks may pop in at will. Others, such as Judge Henry Friendly, maintain a more remote and intimidating presence. Some judges are more openly critical when a clerk makes a mistake. Others, like Judge Frank M. Johnson Jr., respond with measured advice. In terms of work flow, some judges recruit their clerks help as they prepare for oral argument, whether through memoranda or verbal sparring matches. Others, like Judge John Minor Wisdom, prefer to prepare on their own.

Dont let these differences mislead you. Certain clerking principles are universal. Since a judge must be conversant with many more cases than a clerk, the clerk must know his or her cases cold. Particularly impressive is the clerk who answers accurately on the spot a judges factual inquiry about a case, without having to say Ill get back to you on that. A good clerk must also be a two platoon player, alert to the best defenses against opposing views and to the most effective offensive thrusts. All this within the framework of seeking justice under law, which after all is the ultimate aim of the entire enterprise.

I could go on, but that would spoil all the fun. Readers who have never clerked will come to understand the influential and often mysterious institution that the judicial clerkship has become. Former clerks will find here touchstones of their own experiences and say to themselves: Im glad I did this.