"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?