Clerks as Subjects

Most attention to clerks has been to those in the United States Supreme Court, and with the addition this fall of two important books on that subject, by Todd Peppers, and by Artemus Ward and David Weiden, respectively, we’ll know even more about them. Less attention has been given to clerks in either the lower federal courts (but see Jonathan Matthew Cohen’s Inside Appellate Courts) or in the state supreme courts (but see articles by the late Charles Sheldon). Relevant to studying clerks -- and I assume a “yes” answer to the question, “Are they valid objects of research?” -- is the question of whether there are problems connected with law clerks as research subjects.

The following draws on my experience in conducting a study, part of a larger project, of the clerks of a long-serving judge, now a senior federal appellate judge but who had previously served as a state supreme court justice and as a U.S. district judge. The research on clerks entailed interviews with some of the judge’s former clerks and a mail survey of the others, supplemented with informal observation when I was in the judges’ chambers; having luncheons with the clerks and the judge; and observing a session in which the judge and a set of clerks prepared for an argument calendar. The latter elements, while sporadic and not systematic, assisted in understanding “what clerks do,” my primary research interest. (I was also interested in why the clerks wanted to clerk, why they wished to clerk in the judge’s court and for that judge; how they evaluated their experience as a clerk; and what if any post-clerkship contacts they had with the judge.)

Let me speak first to the process I used in seeking the clerks’ participation in the study. I sought out the clerks myself, initially by means of a letter (this was before general use of e-mail, and the judge’s office had maintained a reasonably up-to-date address list to which I was given access) and then, as indicated in the letter, by telephone. Intentionally, I did not seek to have the judge write on my behalf, but he approved of my saying in the letter that he was aware of my study and approved of it. Was it helpful to have the judge’s approval? It may have been, as I understand from a number of people that they did consult with the judge and it may have been that they were speaking to me after having their concerns assuaged by him. The letter also stated that the judge would see nothing of what I wrote until it appeared in print.

The survey protocol contained both closed-response and open-ended questions, not only about the clerks’ reasons for how they came to the position and their evaluation of the experience but also about their tasks and their interaction with the judge, other clerks, and secretaries. (Secretaries, key individuals in judges’ chambers, have been ignored in previous research, but are important sources of information about office practice concerning clerks, whom they often saw more often than did the judge.) No questions were asked about specific cases, although the clerks could -- and did -- refer at least in general terms to cases on which they had worked, in order to illustrate a particular response. A total of 75 clerks who had served the judge in his various judgeships were contacted in 1995 for interviews or were sent surveys. In what is an acceptable but not spectacular “response rate, 31 (41.3%) participated.

Not surprisingly, response to open-ended questions varied from terse remarks of a few words to extended comments in an appended letter or memo. Most important, in the interviews, I encountered no resistance to particular types of questions; the returned mail interviews were also quite complete, although there is no way of knowing if potential respondents started to answer but “tossed” the instrument upon balking at some questions.

None of the above is particular earth-shaking. If one is accustomed to interviewing or conducting mail-surveys specific populations, there is not much that is new and different here -- except that younger former clerks often have little time to answer a survey because of the billable-hours pressure of their jobs.

What deserves further attention is the question of whether the clerks should, because of strictures of confidentiality, always refuse to participate in any way in such a study, particularly to the extent it may be a perhaps unstated reason for such refusal. Of course, as adults, former clerks are free to decline to participate in any research, and, even if one persuaded them that confidentiality did not preclude their participation, they might find some other reason not to participate. The question is, however, whether confidentiality is a valid reason for such non-participation.

I did not ask those to whom I spoke directly (the face-to-face or telephone interviewees), “Were you concerned about confidentiality?” but it is clear that some individuals would not participate even after speaking to the judge and hearing his approval, and my sense is that confidentiality was a part of their concern and that it extended beyond the question of discussing particular cases, even ones long since closed, to in-chambers practices and procedures.

If the judge does not object to the former clerks’ discussion of what went on in chambers -- how it is organized, what the decision-making process was like -- what is the confidentiality problem? If the judge will talk about those matters, “confidentiality” should not preclude the clerks from talking. The key element here, it seems to me, is the question, “For whose benefit is confidentiality?” It is, I assert, for the judge, so that the judge’s decision-making process can be unfettered by concerns of whether there will be later discussion of how he or she functions, how decisions are made, and, most particularly, what is discussed within the confines of what the late Judge Alvin Rubin called the “small enterprise” that constitutes a judge-and-chambers as it works or stumbles its way toward a disposition and the accompanying opinion. One could argue that, for the judge to be assisted in the task of judging, the strictures of confidentiality also benefit the clerks, insofar as it encourages them to be open in their communication with the judge and with the judges’ other clerks. However, I argue that this is a secondary element, derivative of the primary benefit to the judge; in short; the strictures of confidentiality are for the clerk’s benefit only insofar as it assists the judge.

Thus, if confidentiality is principally for the judge’s benefit, and the judge decides to make available to researchers information about decision-making procedures and thought processes, including examples drawn from specific cases, it would seem that the clerks should not be able to insist that confidentiality barred their talking about what went on in chambers. One can concede that confidentiality should extend for a limited time after the end of the clerk’s tenure, because cases on which the clerk worked might well still be in play, coming back after a district court finding on remand or after the Supreme Court had returned the case to the appellate court. That concession does not, however, allow confidentiality to extend “forever,” much less beyond the judge’s death. Two of the late Justice Thurgood Marshall’s clerks wrote an op-ed page piece after his death, in which, although the justice had said his papers could be made available upon his death, they asserted that this should not be so. This argument had the effect of suggesting, even if it were not so intended, that clerks could control the exercise of confidentiality by the judge, that is, the agent’s wishes could supersede those of the principal.

Mention of a judge’s papers leads to another point. Presumably, if confidentiality applied over an extended period and included the period after the clerks’ service as clerks and was for the clerks’ benefit, the judges’ papers would be off-limits to researchers, because those papers regularly include memoranda and notes from clerks to judge. If a judge includes files from closed cases in his or her papers, then the clerks’ written communication with the judge will be available through the archives in which the judge has arranged to have his or her papers placed.

One would assume that the judge’s deed of gift, with any accompanying restrictions, governs access to the papers. This being so, one could have the ironic result in which a clerk has declined to answer a researcher’s survey, that is, has refused to become a research subject, but becomes one -- or at least part of a research project, willy-nilly -- through the written record. Further, where the clerk has responded to a survey, the responses can be matched with instances of the clerk’s behavior -- aiding in interpretation of both the survey responses and the documentary record.

One last thought: I would be far more persuaded by former clerks’ assertions of confidentiality if they had abided by confidentiality’s strictures while they were clerks. But they freely admit to talking openly to clerks from other chambers about cases, and not simply when the judge has asked them to use the clerk grapevine to ascertain another judge’s position. And they admit that much discussion with other clerks, even if only with “those they trust,” is about cases. Without doubt, in assisting the clerks in formulating their own views, such discussion is valuable -- and helpful to the larger judicial enterprise -- and some judges therefore knowingly allow it to continue, without even attempting the (usually futile) statements that it should not take place. However, such discussion does exceed the limits of the confidentiality the clerks have agreed to maintain.

Stephen L. Wasby

Comments

[Todd Peppers]

I agree that the law clerk's duty of confidentiality is a serious roadblock to legitimate research on the federal and state courts. While I appreciate that some clerks (and their judges) define that duty differently when it comes to communications with other judges and law clerks versus the outside world, I have never heard a convincing argument for why a individual justice's general employment practices should be confidential. Assume that Justice "A" has a long-standing practice of having his law clerks prepare short, 3-5 page bench memoranda for every case set for oral argument. Further assume that the memoranda not only summarize the key legal arguments on appeal, but suggest questions to ask during oral argument and provide a recommended disposition of the case. What is the justification (other than a concern over public relations) for arguing that this general practice must be confidential? Revealing such practices will not chill candid discussions between a justice and his or her clerks on a particular case. It does not reveal a justice's position on a particular constitutional issue. And it does not give certain litigants an advantage. Is it because justices still believe that the public buys into the myth, to paraphrase Justice Brandeis, that the justices are the only officials in Washington who do their own work?

Todd Peppers