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March 05, 2006

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William Ford

In our particular survey project, there were no questions that could realistically damage a judge's reputation. In part, we asked the former clerks to weight the relative importance of a variety of "interpretive tools" for the judges on a scale of "1" (lowest weight) to "7" (highest weight). While it would probably be embarassing for a judge to score a lowly "1" on such a scale for the use of precedent, we did not think this was a realistic score for the two items related to precedent, one for precedent in constitutional cases and one for precedent in statutory cases.

A score this low could be realistic for other interpretive tools, such as the use of dictionaries, but it should not be embarassing to reveal that a judge finds dictionaries relatively useless. (How do you know which definition mattered to the drafters?) It just did not seem plausible to us that any judge could find precedent this useless. It might be the case, however, that the mere possibility of this type of embarassing answer made the survey seem unattractive or inappropriate to some respondents.

Todd Peppers

Bill:

Another possible explanation for why law clerks jealously cling to the duty of confidentiality - loyalty to the individual justice's reputation. Former Oliver Wendell Holmes, Jr. secretary Francis Biddle once remarked that Holmes' secretaries "have perhaps done much to keep the Holmes tradition fresh and not inexact." But Holmes' secretaries also did much to burnish the justice's reputation, and professionally benefitted from basking in the "Magnificent Yankee's reflected glory. Does loyalty or personal self-interest explain why some clerks do not want to reveal their justice's clay feet? For decades, Chief Justice Fred Vinson's law clerks fought the commonly-held belief that Vinson did not draft his own opinions. Why? Wouldn't a former clerk have appeared even more important to a potential employer if he could brag about being the Chief Justice's ghostwriter?

Todd

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