Clerks influence

[Paul Horwitz]

Jonathan's email, and the discussions of the German and Venezuelan models, 
should have us asking why, aside from the fact that the discussion began 
there, this thread has focused so much on the Supreme Court.  Why, other 
than the usual "because-it's-there" and "infallible-because-we're final" 
reasons, should we treat it as obvious that the Supreme Court is more 
important than the federal appeals courts, the federal district courts, or 
the state supreme courts?  Particularly given its low caseload relative to 
the actual number of disputes (even difficult ones), and the fact that so 
much of that caseload is taken up by what Judge Posner would identify as 
political cases, in which the tools of decision run out quickly?

I raise this question because it seems to me that *those* courts have 
increasingly, albeit in an incremental and spotty fashion, tended toward a 
more permanent, "staff lawyer" method of offering lawyer assistance in the 
judicial process.  And that fact tends to point to another observation: the 
blurring line in the US court system between doing retail justice in given 
cases, and providing a more bureacratized model of -- well, call it "case 
resolution.

Returning to the Supreme Court, there are some aspects of even its more 
refined docket -- the cert. pool, especially -- that have features of this 
more bureaucratic and less traditional model of justice.  Yet the staffing 
model on the Court hasn't changed all that much in the past several decades, 
aside from the increasing number of clerks.  I see no reason why the body of 
staffers assisting the Justices couldn't change and become more permanent 
and established.  Why not have a bunch of permanent "Mr. Justice Gressmans" 
-- or, on a different model, a larger staff-lawyer bureaucracy -- serving 
the Court?  Couldn't experienced staff lawyers serve the cert. review 
function, especially, as well or better than the current corps of law 
clerks?

That the Court hasn't moved further toward this model is worth observing and 
speculation.  Surely other desiderata are at work besides the value of 
having the most talented young lawyers assisting the Court in doing justice 
-- a value that applies more to some aspects of the job (opinion-writing) 
than others (case intake).  Among them, I would suggest in the spirit of 
guesswork and/or provocation, are: the Justices' desire to fulfill a mentor 
function; their desire for talented and stimulating company; their desire to 
build a network of friends and acolytes, both to polish their Justices' egos 
while on the Court (remember what I said about provocation) and to build 
their reputations when they leave it; their distaste for the idea that the 
Court might be thought of as a bureaucratic institution, and their 
concomitant unwillingness to take on the administrative duties that would 
accompany such a change in the institution; their backgrounds, which 
accustom them more to a law firm, academic, or DoJ model of staffing than to 
an agency model of staffing; and simple path dependence.  I welcome other 
and better speculation.

Paul Horwitz
Southwestern Law School
Los Angeles, CA


>From: "Jonathan Miller" <jmiller at swlaw.edu>
>To: Raul Alberto Sanchez Urribarri <sanchezu at mailbox.sc.edu>
>CC: peppers at roanoke.edu, lawcourts-l at usc.edu, conlawprof at lists.ucla.edu
>Subject: Re: Clerks influence
>Date: Fri, 09 Jun 2006 13:28:35 -0700
>
>In the Argentine model, all law clerks of the Supreme Court are permanent 
>members of the judiciary.  Each judge will have at least three "secretarios 
>letrados" as well as some more junior staff that may help out with simple 
>cases as well as clerical functions.  The secretario letrado has the rank 
>of a District Court judge and typically has had at least a few years of 
>experience working in other courts, the solicitor general's office, or in a 
>junior post in the Supreme Court.  Separately from these secretarios 
>letrados there are also "secretarios" of the Supreme Court with the rank of 
>court of appeals judges, who will also have teams of secretarios letrados 
>working under them.
>
>When a case arrives at the Court it will be assigned to either one of 9 
>judges of the Court or to a secretario's office for an opinion, which will 
>almost always be drafted by  a secretario letrado.  Then that opinion 
>circulates among the 9 judges who will either sign or draft their own 
>opinion.  The Argentine Supreme Court, while formally following the U.S. 
>jurisdictional model, permits what is called the "recurso extraordinario 
>por sentencia arbitraria" -- a "constitutional" argument that the decision 
>of the lower courts was so arbitrary as to violate due process and 
>therefore fall within the Court's jurisdiction.  While the Court probably 
>grants relief in less than two or three percent of these cases, it hears 
>thousands of them, and these cases get decided almost exclusively on the 
>basis of the work of the secretrarios letrados.  The judges rarely write 
>the first draft of anything, but do work closely with their secretario 
>letrados on the drafting of important decisions.
>
>While two of the present judges of the Court have now been sitting for 22 
>years, some of the secretarios have been there even longer and have a lot 
>of internal prestige.  They cannot be fired without cause.
>
>The practical effect of the model is to allow some judges -- but not all -- 
>to avoid having to struggle with the technicalities of a decision in 
>important cases and turn more to their political judgement.  The ones who 
>see themselves as judges focused on the facts of the cases before them, are 
>very  busy and are troubled by the amount of delegation, and the ones who 
>see themselves in other terms have a lot of time to travel.
>
>Jonathan Miller
>
>Raul Alberto Sanchez Urribarri wrote:
>
>>  Between the USA model (where clerks tend to be brilliant, but relatively 
>>inexperienced JDs) and the German model depicted by Prof. Kommers (with 
>>highly experienced, career-clerks having a huge influence in judicial 
>>decision-
>>making), we should find different types of arrangements.  For instance, in 
>>Venezuela, every Justice has its own team, probably of 5 to 10 lawyers, 
>>organized in terms of experience and specialty.  The 'top-rank' clerks, by 
>>default, are experienced lawyers who tend to spend most of their careers 
>>at the court (and even survive the eventual justices-replacement events).  
>>Some of them started their professional lives in the court and were 
>>promoted according to their own expertise.  Others arrive in the Court 
>>after a few years of private practice or experience at bureaucratic 
>>agencies.  On the other hand, the 'lower-rank' clerks tend to be young 
>>lawyers, with strong qualifications, and their work is normally supervised 
>>by the more experienced clerks.
>>
>>I am inclined to believe that this 'mixed' model is followed in other 
>>Latin American jurisdictions. I would certainly appreciate comments on 
>>this point.  It would be interesting to hear from overseas list members, 
>>in order to have a better idea of the cross-country variation in this 
>>region, and elsewhere.
>>
>>Raul S.
>>
>>Raul A. Sanchez Urribarri, LL.M.
>>Ph.D. Candidate in Political Science
>>Department of Political Science
>>University of South Carolina
>>Columbia, SC
>>
>>
>>
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>>
>
>
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