Surveying Judicial Clerks

According to Canon 3D of the Code of Conduct for Judicial Employees, “A judicial employee should never disclose any confidential information received in the course of official duties except as required in the performance of such duties.... A former judicial employee should observe the same restrictions on disclosure of confidential information that apply to a current judicial employee, except as modified by the appointing authority.” 

How much help does this rule provide when a researcher wants to survey former judicial clerks?  Clearly, it would be unethical for a curent clerk to disclose information about a pending case (see also Ethics for Federal Judicial Law Clerks).  Fomer judicial clerks have been chided or received negative press for talking about specific high-profile cases (e.g., Vanity Fair's Bush v. Gore article) or writing a tell-all book (e.g., Lazarus'  Closed Chambers). Some inside-info has not been controversial (Hutchinson's The Forgotten Memoir of John Knox).  I'm already curious as to how Weiden and Ward's Sorcerers' Apprentices will be viewed when released. (Does anyone have an release date?  Weiden himself describes the book as "an empirical and historical analysis of Supreme Court law clerks.")

While the word "confidential information" in the Code likely includes information about the decision-making process in a given case, does it include all information that a clerk learns about his or her judge (e.g., Will he consider legislative history?  Does she look to rule on procedural grounds?)?  My own co-authored research suggests that some clerks (or some judges who presumably could grant permission) believe that it is inappropriate to answer questions about judicial interpretive approaches.  But it is a well-known practice for attorneys at law firms to ask colleagues about judges for whom they clerked.  If this knowledge is considered "confidential information," then it would be improper for former clerks to practice before the circuits in which they clerked (though often they must wait a year or two after their term ends).

Former judicial clerks may have important information that can help us better understand the judicial process.  What information would be most useful?  What of this information should be available (i.e. what information should former clerks feel free to share)?  Comments are open.

Comments

[F.E. Guerra-Pujol]

There is an interesting working paper entitled: "Which Judges Write Their Own Opinions (And Should We Care?)" [which can be downloaded at ssrn.com/abstract=715062] that discusses some of the issues raised in the entry. My own take is that federal judges may not use the code of ethics to hide embarassing information from the public (the embarassing information being the fact that so many judicial opinions are ghostwritten). Judge Posner mentions this problem in his recent Foreward to the Supreme Court's 2004 Term.