WHAT DO LAW CLERKS DO?
By Nicholas Johnson of Houston
Texas Bar Journal
Volume 22, May 22, 1959, p. 229
As law clerk to U. S. Circuit Judge John R. Brown I am so often asked that question that it seemed appropriate to prepare for the TEXAS BAR JOURNAL a little more general and helpful answer than the brief one I usually give.
To begin with, the "title" is an unfortunate one. Rumor has it that the Texas Supreme Court changed the name of their assistants from "law clerk" to "briefing attorney" to satisfy their boys' request for a little more prestige. But federal judges have "law clerks" by statute. Title 28, Section 712 of the U. S. Code declares in a bold grant of authority, "Circuit judges may appoint necessary law clerks and secretaries." Thus are we prevented from even the modest position of "briefing attorney." Moreover, this section has the unique distinction, in the voluminous U.S.C.A., of having never been interpreted by any court. So even West Publishing Company is unenlightening as to its meaning.
"Clerk" suggests a typist, or file clerk. Indeed, the author of an excellent article in the New York Times Magazine of April 27, 1958, inadvertently referred to the Supreme Court law clerks as "the justices' private secretaries"! And my 1959 calendar from the Government Printing Office, with the revealing instructions "fold leaves over as months pass," only serves as a daily reminder that I am, in fact, a member of our country's great band of civil service employees.
This is in no way minimized when my jovial overseer, Judge Brown, introduces me to a lawyer as "my articulate body servant, Nick Johnson," or refers to me in a speech as "my highly-educated beater, gun-bearer, baggage-handler and personal valet--whom the taxpayers record on the budget as my law clerk," as he did to the Houston chapter of the National Association of Accountants.
How, from these humble beginnings, any lawyer could suggest that law clerks wield too much influence in the business of the courts is a matter of constant pride and awe to me. But much has been written in recent years, in U. S. News & World Report and elsewhere, criticizing the role of law clerks in the decisional process. Before oral argument in Fort Worth one morning last November, one lawyer introduced me to another as "Judge Brown's ghost writer." And earlier, in Montgomery, Alabama, one lawyer asked me if I would be writing the opinion in his case. More on this later.
Actually I do neither typing nor filing, as Judge Brown and I each have a dictaphone, and the office comes equipped with one of the most efficient secretary-office managers imaginable. But that part about "baggage handlers" is another matter. "Have bags, will travel" is the motto of our office. When we go on circuit there are always files, briefs, and supplies to go along. As the only six-foot-four two-hundred-pound young male on our staff of three, it falls my lot as a gentleman, if not a law clerk, to move this luggage around when more professional baggage handlers are not available.
There are other unglamorous features of the post. Each judge is free to use his law clerk as he pleases, but one of my jobs is keeping track of the briefs, records and exhibits in the 200-300 cases Judge Brown must consider. Another is stamping all incoming law books with the statutory "Property of the United States." A job with only slightly more intellectual challenge is checking the galley proof of the Judge's opinions sent to us by West Publishing Company for the Federal Reporter (F. 2d).
But there are ever so many compensating fringe benefits, too. The highlight is simply the opportunity to come to know an outstanding Judge very well, to work with him, to travel and eat with him, and spend many hours talking about life as well as the law with someone who has much to pass on to a young law school graduate. Although I naturally spend less time with them, I value equally the opportunity to come to know as I have Chief Judge Hutcheson, and Judges Rives, Tuttle, Jones, Cameron and Wisdom.
Judge Brown has remained active in the Bar and other civic activities, and includes his clerk in on as much of this as possible. Speeches, the University of Texas Annual Tax Conference, coffees and other social gatherings, introductions to civic leaders and outstanding members of the Bar visiting the office, or arguing before the Court, is more of the icing on the cake. There are also occasional personal favors of the Judge, such as a dinner at one of his clubs, or free surplus football or symphony tickets. And, of course, traveling wherever the Court sits, including New Orleans most of the weeks we are not in Houston, is quite a change from the routine of law school.
But while these are all things that law clerks "do," both the routine and the glamor are really incidental.
A judge is a writer. It has been said that the prime characteristic of a judge is incessant mental activity. But in discussing the writing of opinions it is important to understand their wholly subsidiary role to the decision. It is the Court (three judges acting together) which formulates the decision in a case--and the reasons for it--during oral argument and in conference afterwards. The primary contribution of the individual judge who is assigned a case for opinion is the limited one of verbalizing--while perhaps impressing his individual style upon--the agreed disposition of the case.
Nevertheless, as a writer, a judge is under a pressure to produce and publish more severe than that felt by any college professor or journalist. The requisite research and study, the technical accuracy required, and the tremendous emotional strain and responsibility involved make this certainly among the most difficult types of writing. The sheer quantity is impressive when compared with the number of briefs of the average lawyer, or scholarly articles from the average professor. A Circuit Judge must read prior to oral argument--if he is on the Fifth Circuit--the briefs and necessary parts of the record in between 200 and 300 cases a year. About 70 of these will be assigned to him for an opinion.
Moreover, there is no opportunity for specialization. During any given week a judge may have to decide how the heavy machinery business was affected by the Korean Excess Profits Tax, the use of polyethylene tubing as an irrigation conduit, whether a new mechanism for curing tobacco in a barn is really "invention" under the patent law, how accounts receivable financing procedures are affected by the Bankruptcy Act, and so on without end.
Such a task calls for great amounts of reading, research, first drafts, revisions, footnote supplementation, proofreading, and the checking of galley proof incident to any publishing operation. Of course, much of this work can be performed equally well, or better, by a young law school graduate with law review experience--and should be.
Deciding cases is hard work. It takes time. And this is, after all, the primary duty of the judge--to decide controversies, not check citations. Because judges in every court are as overworked as they are, we should make every effort to leave them as much time as possible for their most important task. I doubt that there is a senior partner in any major firm in Texas that does all of the research and writing and mechanical tasks necessary to produce a legal opinion or brief. There is no reason for a responsible judge to be held to any less efficient standard.
But what, then, of the oft-repeated criticism that law clerks have too much influence in the decision of cases? As flattering as such charges are, my observations from within the Court have been such that they must be categorically denied. This is a result of practical realities as much as the proprieties involved. No highly skilled middle-aged judge, with years of practice or judicial experience behind him, is going to be swayed by the personal philosophy of a 20 to 25-year-old boy, however well-educated he may be.
Moreover, the judge has read the briefs of two lawyers who are far better prepared in the case than his law clerk, and has likely had some understanding, opinions and experience with the problem before the case arose. He has discussed the merits with the two other judges on the panel, and when they decide the case in conference after oral argument no one is present but the judges.
On the other hand, a law clerk may be of some perfectly proper assistance regarding the substance of an opinion. Interestingly, Chief Judge Hutcheson, who came to the Court over 28 years ago and has never had a law clerk, not only has no objection to their use by other judges, but in fact feels that some of them do not make full enough use of their law clerks.
A law clerk may draft a purely technical statement of the law, with supporting cases; or, where the facts, though undisputed, are particularly involved, as in a patent case, he may be of some help by preparing a draft of a more succinct fact statement for the opinion. Again, Judge Hutcheson is one who feels that if a mature judge, who was formerly a lawyer, can be unduly influenced by a yearling law clerk he does not deserve to be a judge. But law clerks around him soon come to know, as he has suggested to so many practicing lawyers, that a man without an opinion which he is willing to champion with some ardor is not much of an advocate. Indeed, he feels that one of the most helpful functions a law clerk can perform is to serve as a "hone" on which his judge can sharpen his wit and clarify his views.
It is Judge Brown's procedure to have his draft opinions thoroughly critically analyzed by his law clerk, so that the entire opinion, representing the views of the Judges' conference, is tested again for adequate support in the record and the law. Often as much time will be spent by law clerk and judge together, going over the original draft of the judge and formulating a final product, as was spent by the judge in writing the first draft. It is here where the law clerk is able to utilize to the fullest the skills of the profession for which he has been trained.
What, then, is the value of a clerkship? To answer that question I have written and talked with the deans of the law schools in this state and elsewhere, judges, successful practitioners and some of the law clerks themselves. From them, and my own experience, the following benefits emerge. There is, first of all, the opportunity to work in close harmony with an excellent legal mind, and to come to know the personal qualities of an outstanding and distinguished individual. Furthermore, as many of the judges, like Judge Brown, encourage their clerks to meet counsel in all cases and visitors to the office, the clerk will have contact with many top lawyers. The year serves as a form of post-graduate education, as the clerk must give intensive study to nearly every area of the federal substantive law and that of many states, and the research experience is probably better than that given any beginning associate in a large law firm.
Perhaps of greatest value is the peculiarly unique opportunity to observe the decisional process in action. What is effective persuasion in oral argument or written brief? A clerk will probably hear more oral arguments and read more briefs than most practicing lawyers would contact in a lifetime. A good appellate court is probably the finest school imaginable for training in the technical craftsmanship of brief writing and oral argument. It is an opportunity to see the professional appellate advocates at work (many of whom are with the appellate divisions of federal agencies).
Nowhere does a young lawyer get a more effective demonstration of the fact that cases are won in the trial court, or before the administrative agency. All the law imaginable is of little help if the case was misunderstood, poorly prepared--and tried below—and lost with little thought given to what must be in the record on appeal. Even the mathematical odds are against reversal--only 22 to 32% of the cases decided by the Fifth Circuit over the past ten years reversed the decisions below.
And there is the lesson to be learned from the many examples of cases in which lawyers have been too busy to adequately comply with even the very few procedural requirements of the Federal Rules. It is also interesting to note the ways in which geographical background and environment tends to type lawyers.
Most important, a law clerk will come to know what factors weigh most heavily with the judges as he watches the decisions of the Court unfold, and visits with other law clerks and judges. He sees the difference between an effective trial and appellate advocate. He sees the really great appellate advocate instinctively recognize in his argument the questions that have been bothering the Court prior to their hearing the case, and strike surely and immediately at the crucial, decisive problems that are posed. All these insights cannot be duplicated by any course in law school, reading books, nor even by arguing cases before the Court. It is worth much to any attorney--and the firm he works with.
Former Secretary of State Dean Acheson, a partner in the well-known Washington firm, Covington & Burling, and himself a law clerk to both Justices Holmes and Brandeis, feels the experience was "invaluable." The Justice Brandeis alumni include as well, two other partners at Covington & Burling, Chief Judge Magruder of the First Circuit, the sociologist David Riesman Jr., and ten law school professors, among them six at Harvard, and former deans of both Harvard and Yale. Similar lists could be prepared for other Supreme Court Justices, and some Circuit Judges, too.
Baker, Botts, Andrews & Shepherd in Houston, which follows a rather stringent policy of hiring only from among those just out of law school, is quite willing to take an ex-clerk, such as Frank Wozencraft (formerly with Justice Black) or M. C. Bradford (formerly with Judge Brown). Assistant Dean Riehm of the SMU Law School recalls from his days as an associate in the New York firm of Cravath, Swaine & Moore that there were a great many ex-clerks there, as there certainly are at Covington & Burling.
The Eastern law schools have for some time been building up the tradition that top graduates spend their first year out of law school as a law clerk. Now it seems to be catching on in Texas as well. Judges on the Texas Supreme Court, Court of Criminal Appeals, Courts of Civil Appeals, and the U. S. Supreme Court, Circuit Courts, and Federal District Courts have been taking an increasing number of graduates of Texas law schools as law clerks. Out of my own class at the University of Texas Judge Thomason of the Federal District Court in El Paso selected Frederich J. Morton, Federal District Judge Connally in Houston selected Ed Bluestein, and I went with Judge Brown.
Texas lawyers may take special interest in the fact that judges outside the state are taking Texas boys as law clerks, too. U. S. Circuit Judge Warren L. Jones, the Fifth Circuit Judge from Florida, who has usually taken graduates of Eastern schools as law clerks, this year selected another classmate of mine, Robert B. Reynolds. Justice Clark has formerly taken Bill Powell of SMU Law School, and the fact that he is this year taking Larry Temple of Texas, and that I will be going with Justice Black, is evidence that the state is coming to be recognized by the Supreme Court as well.
Dean Keeton at the University of Texas gives the law clerk program his fullest personal support, and Professor Wright, a former clerk to Judge Clark of the Second Circuit, serves to coordinate there the efforts to get graduates and judges together. Dean Storey at SMU has likewise encouraged clerking, as has Dean McCall at Baylor, who served as a clerk to Judge Alexander, and has also seen their value from the standpoint of a judge during his brief tenure on the Texas Supreme Court. While the other Texas law schools have had less experience with law clerks, the deans of the law schools at the University of Houston, Texas Southern and South Texas all felt the experience was very valuable.
And now, as more and more
lawyers become aware of "just what do law clerks do," Texas can become
increasingly proud of its growing role in this great tradition that works
to the mutual benefit of young graduates, judges, the state's law firms,
and the law schools.
Mr. Johnson has recently been selected by U. S. Supreme Court Justice Hugo L. Black as his law clerk for the 1959-60 term. He is presently serving a year as law clerk to U. S. Circuit Judge John R. Brown of the Fifth Circuit.
Mr. Johnson received his B.A. degree from the University of 'Texas in 1956 with Phi Beta Kappa distinction, and his LL.B. in 1958. He was article editor of the Texas Law Review, and a member of Chancellors, Order of the Coif and Phi Delta Phi. He spent last summer with the Washington, D. C., law firm of Covington & Burling.