August 22, 2005
It has been rather a long time since we posted another installment in our 20 Questions feature. But I am proud to provide the newest installment now, an interview with anonymous judiciary-gossip blogger, Article III Groupie. The first 10 questions and answers are here, the next 10 will be posted soon. As always, feel free to email me (wbaude at crescatsententia dot org) with thoughts or complaints. For "A3G"'s take on high heels, cattiness, and the fetishization of Supreme Court Clerks, read on:
1: How sensible is the fetishization of Supreme Court Clerkships, really? Are those who are Elected different in kind or only in luck from those who are left behind?
My dear Will, I think it's eminently sensible! Many bright law students have the paper credentials to land interviews for Supreme Court clerkships. But only the very best and brightest, Nietzsche's "great-souled men" (and women), can spin the straw of interviews into the gold of a gig at One First Street.
More seriously, yes, Supreme Court clerks are different in kind. Many Supreme Court clerkship interviews involve the applicant being interrogated, on issues of substantive law, by a screening committee of former clerks, the current clerks to the justice, or both (at different stages in the process). It's a brutal form of intellectual hazing reminiscent of an oral exam or thesis defense for a grad student -- but nastier. The folks who can survive these extremely demanding interviews and land jobs with the justices aren't just good at taking tests and writing papers; they're also extremely sharp and quick on their feet. They're not just wicked smart; they're wicked fast. And even though the Supreme Court doesn't work under the time pressures that many other courts do, it still doesn't hurt to have such lightning-quick minds working on the biggest cases of the day.
Some justices don't include an interview with former or current clerks as part of their process, but even the clerks to these justices are different from the Great Unwashed. These clerks are so brilliant that a Supreme Court justice can sense their intellectual firepower, even from a brief and non-substantive interview!
At any rate, regardless of whether the Elect are different from the Great Unwashed before their apotheosis, they are certainly different afterwards. They will have opportunities available to them that the Great Unwashed can only dream about. They are the ruling class of the legal world, and the rest of us must bow down before them.
2: For that matter, how much sense does your lionization of the federal judiciary make? After all, a great deal of law gets made in administrative and state courts, legislatures, executive agencies, and so on.
True, true. But the supreme law of the land, the law that gets to trump and to displace the other forms of law, is federal statutory and constitutional law.
Also, Underneath Their Robes is about people more than policy. And federal judges are far more brilliant, distinguished, and high-powered as a group than administrative law judges, state court judges, legislators, and executive branch bureaucrats. The federal judiciary is an elite crew, full of the best and brightest legal minds in our nation, and that's why it's sexy -- far more sexy than any state court bench.
For more on why I'm such a federal judicial snob, I refer you to my magnum opus on the subject, State Court Judges Are Icky.
3: Given the existence of such A3G features as "Judicial Sight-ations", how do you feel about such Supreme Court exposes as Ed Lazarus's Closed Chambers? Is his book just another (much more profitable) version of your blog, or does he somehow cross a line? How about the infamous Vanity Fair article?
The difference that I draw between my blog and works like Closed Chambers or the Vanity Fair article is that I confine myself to non-substantive matters -- things like what federal judges are wearing, eating, doing in their spare time, etc. As you can see from my blog, I scrupulously avoid substantive legal discussion.
I do not ask my sources who are law clerks to violate their duties of confidentiality to their judges, and I do not ask them substantive questions about cases that they are working on. Most of what I obtain and publish in my blog is gossip that is already well-known locally, i.e., within a particular courthouse; I simply disseminate it to a somewhat larger audience.
To be sure, the line between "substantive" and "non-substantive" matters can get blurred at times. But that doesn't mean it's non-existent. To paraphrase Justice Stewart, we know it when we see it.
4: What about the clerks themselves-- do they have any right to privacy? Do you receive tips about them that you wouldn't include in your now-famous profiles of "the elect"?
Sure, clerks have a right to privacy. But how do we define the right to privacy in the age of Google? Many of the tips that I published about the Elect were things that I gleaned on my own, through internet research. Other tips came from friends of the clerks -- or even from the clerks themselves. Everybody wants their fifteen minutes of fame!
Nothing that I published was "private" in any true sense of the word; the information was already known to a smaller community (e.g., college or law school classmates, friends of the clerk in question, etc.). I just shared the tidbits in question with a slightly larger audience. Is that so wrong?
With respect to my blogging, I like to think of privacy issues in terms of attorney-client privilege (which I spend much of my time dealing with, in the context of my duties as law-firm document drone). Once an otherwise privileged document has been disseminated outside the circle of privilege, even to just a small number of people, the privilege is completely blown. So if judges or clerks want certain things about themselves to remain private, they should tell absolutely no one -- other than maybe their priest, therapist, lawyer, or spouse. In other words, once one person outside the circle of privilege knows the information in question, that information is fair game for the entire world.
Also, let's not forget that federal judges are public figures, and Supreme Court clerks are what I'd call "quasi-public figures." The Elect are legal celebrities, and the work that they do will affect the entire nation. Some public scrutiny comes with this territory; and if one of them isn't willing to handle it, well, then I'll take their place! (No joke: I would be willing to post nude pictures of myself on the internet, available without a password and in perpetuity, in exchange for a Supreme Court clerkship.)
And yes, I received tons of stuff about the Elect that I did not include in my profiles of them (to avoid being sued for libel). I may take some of these tidbits and collect them in a special edition of "Justice Is Blind," where I collect blind items of federal judicial gossip.
5: Is the new conspiratorial hiring plan for Federal clerkships a sensible attempt to bring order to the chaos, or is it just a dubious attempt by subpar judges to keep the best ones from stealing the hottest candidates?
I actually don't have a strong view on the new law clerk hiring plan; I can see both advantages and disadvantages. I think that trying to make the clerkship process somewhat more orderly and dignified is a good thing, but I also understand the concerns of judges who don't wish to comply with the rules. So I guess I think it would be "nice" if judges and applicants adhere to the plan, but I also wouldn't get all hot-and-bothered over people who break ranks. After all, these people are Article III judges; they can do as they please. Being a federal judge means never having to say you're sorry!
6: What do you think of all of the brou-ha-ha over judicial confirmation these days? Does it make the positions all the more coveted and prestigious or just threaten to mire them in senseless cattiness?
I have to confess that even though the good citizen in me was dismayed by the partisan bickering over judicial nominations, the Article III groupie in me was loving every minute. When was the last time we had so many Americans paying attention to the federal judiciary during a period without a pending Supreme Court nomination? I think the controversy, which received a lot of attention in the mainstream media, underscored to the country that federal appellate judgeships are a big f***ing deal, and that the men and women who hold these posts are some Very Important People.
As for "senseless cattiness," isn't that an oxymoron? As I have previously stated, with the possible exception of a French manicure, there are few things I like better than a good old-fashioned cat fight!
7: Speculation over the future of the Supreme Court is everywhere, and you are as likely of a repository for gossip and rumors as any. Who are A3G's picks to become the next denizens of One First Street?
Going on the assumption that Judge John G. Roberts will be confirmed, knock on wood, I think that President Bush will probably try to pick a woman or a person of color for the next SCOTUS seat. And I'm starting to think it quite likely that the next nominee will hit more than one desirable demographic. Hello, Justice Janice Rogers Brown!
Sure, nominating Judge Brown would provoke a firestorm. But would President Bush, not eligible for reelection, have that much to lose? And wouldn't it be delicious to watch the Democrats try to explain why a brilliant black woman, the daughter of sharecroppers, should not be on the Supreme Court, simply because she happens to be conservative? Will the average American care about some comments in a speech she made concerning an ancient case about a bunch of bakers? If you say the word "Lochner" to most Americans, they will say, "Oh, is that the monster in the lake in Scotland?"
In short, there would be an ugly fight over Judge Brown, but she would get confirmed on the strength of her compelling personal story -- just like Clarence Thomas did. Average Americans connect with compelling personal stories, not with dry scholarly analyses of substantive due process. There's a reason why People magazine sells more copies than the Harvard Law Review.
Of course, there are other possibilities. Some other decent bets include Emilio Garza, Alberto Gonzales, and Priscilla Owen. I tend to think that Edith Jones, even if she'd be a great Supreme Court justice, is too controversial to remain in the running. Judge Jones is sort of like "Janice Rogers Brown, but without the race card."
I tend to doubt that another white male will get the nod. The Roberts nomination was very, very bad news for folks like Luttig, Wilkinson, Alito, and McConnell.
8: You have speculated that Chief Justice Rehnquist would be a terrible blogger; which Supreme Court Justice do you think would be the best?
This question is an easy one: without a doubt, Justice Scalia! Nino is not afraid to voice his opinions, to think out loud, to say more than is necessary, and to go off half-cocked, which are all hallmarks of a good blogger. A good blogger should also possess a distinctive and vigorous prose style, and Justice Scalia has this in spades. He would be an absolutely phenomenal blogger.
9: Let's talk style over substance for a minute--you've covered Judge Chertoff's shoes; but what kind of shoes do you think superdiva Janice Rogers Brown would (or should) wear?
I see Judge Brown wearing a Christian Dior logo platform mule. This shoe, described as "[a] charming take on the 70s favorite," suits her 1970's, disco-diva style. The wooden platform captures the solidity of her jurisprudence; the four-inch heel has definite diva power, but without "trying too hard" (in the manner of certain Manolo Blahnik or Jimmy Choo styles). The silver-tone rivets that run along the base clog are the "silver bullets" that she's going to shoot through the shoddy reasoning of the D.C. Circuit's liberals. Magnificent!
10: Relatedly, why do so many women wear uncomfortable shoes? Why don't y'all revolt and refuse to buy new shoes until the brightest physical and chemical minds create something both worthy and comfortable?
Many great minds -- Richard Posner and Thorstein Veblen are two that come to mind -- have developed theories that bear on why women wear uncomfortable, high-heeled shoes. Of course, I have my own thoughts.
Despite much recent progress, many fields -- such as law, finance, and politics, to name just a few -- are still male-dominated. Quite frankly, sex appeal is one of the few weapons that we women can wield in our struggle for equality. And high heels are all about sex. When you wear heels -- I'm guessing you've never tried, Will -- you gain a few inches in height, your calves stiffen, and your butt sticks out ever so slightly. With your toned calves and firm buttocks accentuated in this manner, you look and feel so much sexier.
That sexy feeling, of course, makes you more confident. And when you're striding into the lion's den of a conference room or a courtroom, you need all the confidence you can get. So what high heels lack in physical comfort, they more than make up for in terms of the emotional comfort and confidence they provide.
[Check back soon for the next installment!]
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