D.C. Circuit Review – Reviewed: Floods, Fires, and Clerkships

by Aaron Nielson — Friday, Dec. 29, 2017@Aaron_L_Nielson

In the aftermath of Watergate, a young — well, young-ish — Antonin Scalia found himself defending executive privilege before Congress. This is how he closed his remarks: “I realize that anyone saying a few kind words about executive privilege after the events of the last few years is in a position somewhat akin the man preaching the virtues of water after the Johnstown flood, or the utility of fire after the burning of Chicago. But fire and water are, for all of that, essential elements of human existence.”

Scalia’s quip came to my mind when I was reading posts by Paul Horwitz at Prawsblawg (Clerkships Are, Or Can Be, Just Jobs. Maybe it’s Better That Way) and Notice & Comment’s own Peter Conti-Brown (Why We Should Lower Student Expectations About Judicial Clerkships). Unsurprisingly, both posts are worth reading and I agree with almost all they have to say. Yet I also worry some students may read more into the posts than I think is there.

Professor Horwitz’s main point is this:

Perhaps it’s time to rethink the romanticization of clerkships that involve familial or filial relationships with one’s judge, and the endless praise of judges who encourage such relationships rather than close but professional and workaday relationships. Maybe there’s more to be said–certainly more than is generally said publicly–in favor of clerkships that are “just” jobs, that feel like “just” jobs, and in which the judge understands and makes it clear that the clerkship is indeed just a job, and the judge is indeed just another employer. It’s a lot easier to criticize, refuse, or stand up to a judge who feels like a simple employer, not a filial figure, or a teammate and collaborator in a deeply charged and important “mission.” I’m sure that many such relationships and experiences are indeed wonderful. But they are also rife with the potential for abuse of power, in a way that may discourage clerks from saying or doing much about it. And our culture of glowing tributes, displays of filial loyalty, and lifelong championing of one’s former judge may not help either.

Maybe there is much more to be said in favor of the clerkship that is just a job and is treated like one, and the judge who is just an employer–and who knows it, and (as a professional should) acts like it. Perhaps that’s better than an extreme in which one’s clerkship might be “the best year in [one’s] career,” or “their worst,” and in which, if it’s the latter, multiple social and other forces discourage one from saying so. There’s a lot to be said for clerkships that are neither the best nor the worst year, but are just jobs; and for judges who don’t constitute one’s closest relationship, for good or ill, but are just one’s boss.

And here is the heart of Peter’s message:

Even before law students arrive, they hear about the extraordinary opportunity that the best of them will have as judicial law clerks. The narrative goes something like this. The clerkship is the best year (or two or three) of your life, starting your career at the end. Only if you become a judge yourself will your job ever be as interesting. And your relationship with your judge will define your life, personally and professionally. You join a family of law clerks, with the judge as matriarch or patriarch. In exchange for hard work, you get a lifetime of contacts and support and even a sizeable signing bonus from the nation’s top law firms. And as with so much else in law, there is a hierarchy here. Federal court is better than state court; appellate clerkships are better than district court clerkships; the DC Circuit better than the others; the Second Circuit next, followed by the Ninth Circuit and then all the rest (with only a few exceptional judges as outliers). At the top of the heap of all is the shining credential, the Supreme Court clerkship.

This received wisdom is very silly and can have devastating consequences for law clerks and not just because some are sexual predators. We elevate the stature of these legal policymakers to an indefensible degree. I might write later about the intellectual decay that arises from these judicial fetishes, but today I want to write about how this narrative around judicial clerkships–especially on student expectations going in–should change.

Obviously, the backdrop for these posts is appalling behavior by a former federal judge. After such a prominent abuse of trust, some students may give up on clerking. This is especially true if they read too much into comments suggesting that the whole clerkship idea has been unduly romanticized and oversold. That concerns me.

As regular readers know, I make it a point to tell students — especially at schools that don’t have strong clerkship cultures — that clerkships are worthwhile. At elite law schools, where clerkship cultures are established, there is no need to push students to clerk; clerking is already in the air. Not so at schools without such cultures; I have seen students who would have been top-notch clerks turn down the opportunity because they didn’t see the value. Such a decision doesn’t bother me if it is made with eyes wide open and complete information. Otherwise, it troubles me a great deal. One of my goals, therefore, is to do my part to spread the word that students should want to clerk.

So I will say it again: Students, at least presumptively,* should want to clerk.

I don’t think Professor Horwitz and Peter disagree with that basic point (especially given the “presumptively”). Indeed, I suspect our divergence, if there is a divergence, may be more one of emphasis and characterization than of substance. All of us agree that a clerkship can be a wonderful job. Yet all of us also agree that a clerk’s judge is not the clerk’s mother or father and should not be treated as such. Likewise, it is common ground that students would do well to think much less about prestige and much more about skills. Nor do we disagree that perhaps your judge will not be a “mentor,” at least not in the I-need-a-Yoda-like-life-coach sense that some people use the word. (“Mentor” is also a “word of many, too many, meanings.”) Even so, I think we all agree that it can be a valuable learning experience to work closely with a judge, especially early in one’s career. The truth is that is increasingly difficult for young lawyers to received individualized training; clerks generally get it.

I can’t speak for everyone, and, sadly, we know all too well that experiences on this score differ. But personally, I’ve never regretted clerking. True, it’s hard work. True, cases can be boring (but that’s a good thing!). And true, you won’t always enjoy it. But if you are able to clerk, think very hard about it.

The D.C. Circuit decided four cases this week — and they are (mostly) interesting.

In American Council of the Blind v. Mnuchin, Judge Henderson (joined by Judges Srinivasan and Williams) returned to a case from 2008 called American Counsel for the Blind v. Paulson. In that case, the D.C. Circuit held that the United States must make it easier for those who cannot see well to use the nation’s currency. “The district court subsequently issued an injunction ordering the Secretary of the United States Department of the Treasury (Secretary) to provide meaningful access by the next time the Treasury Department released redesigned banknotes. The Secretary approved a plan to do so that called for, in part, using raised tactile features on bills so that visually impaired individuals could differentiate banknote denominations by touch.” Those changes haven’t happened yet. In 2008, the parties expected that the currency would be redesigned between 2013 and 2018. But it turns out that it may not happen until 2026 to 2038. “Understandably, plaintiffs American Council of the Blind and Patrick Sheehan asked the district court to modify the injunction to hold the Secretary to an earlier deadline for providing meaningful access to currency.” The district court declined to do so; the D.C. Circuit reversed with instructions “for the district court to better support its findings supporting its denial of modified injunctive relief.” In particular, the district court is allowed to consider costs, but the costs considered must be supported by adequate evidence.

In Electronic Privacy Information Center v. Presidential Advisory Commission on Election Integrity, Judge Henderson (this time joined by Judges Williams and Ginsburg) addressed whether the Presidential Advisory Commission on Election Integrity must “complete a privacy impact assessment” before “collecting voter data” via voluntary requests to the States and the District of Columbia. The district court denied a preliminary injunction and the D.C. Circuit agreed that the Electronic Privacy Information Center “is unlikely to succeed on its APA claims,” albeit for a different reason than that given by the district court. “Specifically, we uphold the denial of a preliminary injunction because EPIC has not shown a substantial likelihood of standing” because it has not demonstrated informational or organizational standing. Judge Williams wrote separately because he did not think the Court needed to address organizational injury at all: “But organizational standing is merely the label assigned to the capacity in which the organization contends it has been harmed; it is not a separate type of injury. In its capacity as an organization, EPIC has alleged one harm, packaged as two theories (perhaps in the hope that such packaging will increase the odds of success). There is no need for us to accept that packaging; doing so is a step away from, not towards, legal clarity.”

In Clarian Health West, LLC v. Hargan, Judge Edwards (joined by Chief Judge Garland and Judge Henderson) addressed Medicare reimbursement. Here is the holding: “We conclude that the Manual instructions embody a general statement of policy, not a legislative rule, setting forth HHS’s enforcement priorities. Policy statements do not establish binding norms. And they are not ‘rules’ that must be issued through notice-and-comment rule making. Nor are the instructions subject to the Medicare Act’s independent notice-and-comment requirement because they do not establish or change a substantive legal standard.” Warning — this is a technical case, but the principles discussed are important. As the Court notes, “The distinguishing line between legislative rules and general statements of policy has long been described as ‘fuzzy.'” The Court’s opinion offers a helpful summary of the current D.C. Circuit approaches to the question. This is also an important thought: “An agency election to adopt a policy statement rather than promulgate a legislative rule simply determines how, when, and under what standard the criteria might be reviewed. See M. Elizabeth Magill, Agency Choice of Policymaking Form, 71 U. CHI. L. REV 1383, 1395-97 (2004). When an agency adopts a legislative rule after notice-and-comment rule making, it may be subject to challenge for only a specified period of time. In contrast, although a policy statement is not subject to review upon adoption, it may be challenged if it is applied in an enforcement action against a regulated party.” (I’ve omitted some citations.)

Finally, we have Momenian v. Davidson — which has nothing to do with administrative law. Instead, Judge Wilkins (joined by Judges Pillard and Silberman) addressed legal malpractice and pleading standards. Here is the punch line: “Under the circumstances of this case, including the parties’ attorney-client relationship, Plaintiffs’ efforts to check in with Defendant about the 2009 Litigation every three months following the 2010 settlement plausibly fulfilled their duty to investigate their affairs with reasonable diligence. It is therefore plausible that Plaintiffs’ claims did not accrue prior to May 6, 2012. Accordingly, we reverse and remand for proceedings consistent with this opinion.”

Have a Happy New Year — I’ll share some resolutions next week.

* There can be good reasons not to clerk. But there are many good reasons to clerk. Indeed, a few months ago, I listed 26 of them. Taking Peter’s well-stated concerns to heart, however, I have modified that list a bit:

Off the top of my head, clerks GENERALLY (a) learn how judges decide cases, (b) spend a year learning to write well BETTER, (c) gain a mentor PERHAPS even beyond the clerkship year, (d) learn the rules, (e) get better jobs, (f) do more interesting work post-clerkship, (g) have better advancement prospects, (h) have better lateral prospects, (i) are often attractive to employers in more geographic markets, (j) are exposed to a wide range of cases and so can direct their careers better, (k) gain co-clerks, who will MAY become some of their best friends, (l) build a larger network by interacting with clerks of other judges, (m) sometimes get to visit places they would not otherwise go to, (n) have intellectual conservations that you can’t have unless you know someone really well and are in a place where such discussions are HOPEFULLY encouraged, (o) MAY have time to write law review articles (if that is your thing), (p) gain greater confidence in their legal skills, (q) often get clerkship bonuses, (r) are CAN SOMETIMES BE part of a family of clerks that extend beyond their specific clerkship year, (s) can restart their career if they don’t like their current job, (t) learn to respect but not fear judges (JUDGES ARE NOT INFALLIBLE), (u) understand the back story of important events, (v) serve their country by sincerely trying to get the law right, (w) find time to exercise (THOUGH DON’T PLAN ON IT), (x) learn how to disagree in a professional way, (y) are humbled by reviewing clerkship applications and realizing just how many talented people there are in the world, and (z) for some reason get a paycheck too. If you have done well so far in law school, you should definitely be looking to clerk. If you haven’t done so well, however, don’t give up. There are clerkships that are not as competitive but are still wonderful. Don’t write off state court clerkships. To be sure, a clerkship doesn’t make sense for everyone. But think very hard about it.

 

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About Aaron Nielson

Professor Nielson is an associate professor at Brigham Young University Law School. Before joining the academy, Professor Nielson was a partner in the Washington, D.C. office of Kirkland & Ellis LLP (where he remains of counsel). He also has served as a law clerk to Justice Samuel A. Alito, Jr. of the U.S. Supreme Court, Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit, and Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. All views expressed are the author's alone. Follow him on Twitter @Aaron_L_Nielson.

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