Will Baude has a thoughtful response to my somewhat grumpy take on David Lat’s very engaging novel, Supreme Ambitions. As with my other post, spoiler alert: the whole analysis and debate here reveal the book’s major plot twists.

Will and I agree on a lot, but he makes two points that differ from mine: first, Audrey’s leaking an objectively verifiable fact (the plot-twisting jurisdictional defect) to another chambers isn’t that big a deal. Second, Judge Stinson (Audrey’s boss) gave absolutely no legal reason for ignoring Audrey’s identification of the jurisdictional defect in the case: where no legal reason for a judge’s decision is given to the clerk, there is no deference earned from clerk to judge. This creates a sort of clerical review of judicial action, if you will. (I’m generalizing Will’s proposition here).

I am almost persuaded. The first point is stronger than the second, but I’m ultimately not convinced by either one.

First, what’s so bad about Audrey’s maneuver? She simply told another clerk in another chambers that there is this jurisdictional defect, and wouldn’t the other clerk’s boss be interested? (Actually, the exact sequence is even more absurdly cloak-and-dagger and involves leaving papers unattended in the library with lots of winks and nudges.) What’s the harm in that? Whether Audrey’s leak will matter is up to another Article III judge to determine.

The problem is that this is internal sabotage of the course of action the judge already determined to follow. It is a betrayal, as Audrey and Lat (and Will) recognize. The question remains whether it was ethically allowed (or even ethically compelled), but not whether Audrey took matters into her own hands and guided the resolution of the case as she—not the judge—saw fit.

Two problems here. First, as I said before, why should we trust the clerks, on principle, to ever take matters into their own hands? (More on that below.) And second, even if there are exceptions, what’s the limiting principle? If “facts” can be disclosed, there’s the whole ball game. Is the discrete disclosure of a conflicting precedent the same thing? An overlooked citation in the joint appendix? Three record cites and two conflicting precedents? How about an anonymous email that connects those dots and advocates for a result that the clerk’s boss already rejected? Or that same memo “inadvertently” left sitting in the library where clerks come to meet?

You see the line-drawing problem here.

To Will’s second point: he seems to get close to saying that there should be a form of clerical review of judicial action comparable to Chevron (or is it Skidmore?) deference: the judge’s conclusions only get weight if there is ambiguity in the law (I invoke Skidmore because Will’s point could be interpreted to support the view that the judge’s decision is immune from internal sabotage only if to the extent that the decision is independently persuasive).

I think Will has pegged what Lat hopes to accomplish with the book: our heroic clerk does need to subject her boss to this kind of clerical review. (And, as Will points out, Audrey is richly and karmically rewarded for her action here. I agree with Will that the book would have been much better if Lat’s universe had left her out in the cold and let her convictions be their own reward.) But it is precisely the exactly this idea of clerical review of the exercise of constitutionally authorized (even if very flawed) judgment that makes me so uncomfortable about the book. Once again: who died and made the clerk judge?

It’s a testament to Lat’s book that it triggers this kind of debate. I definitely endorse the book to readers interested in the federal judiciary. But let me say one more thing about the book and why I think the conclusion not only is unethical, but also irredeemably implausible. Lat’s selling point forSupreme Ambitions is its realism, its ability to capture the essence of the judicial process in the federal appellate courts. As I said in my initial review, I think he mostly succeeds. Until the end. The book’s dramatic fulcrum fails in its lack of realism. To make the whole architecture of the moral and ethical crisis work, Lat had to find a problem in a case that was (1) dispositive and jurisdictional (that is, prevented the case from being resolved on the merits); (2) obviously dispositive and jurisdictional, such that a 25-year-old legal tyro can spot it as such; (3) undetected by every other judge, clerk, court employee, adversary, amicus, journalist, etc. to be watching the case; and (4) inside the case of the decade (for plot reasons, the judge has to be invested in the particular result on the merits).

I’m skeptical that there is any legal issue that satisfies these criteria. The more obscure the legal defect, the less we should trust a newbie’s sense of it; the more obvious it is, the more likely that someone—in the case of the decade, no less!—would notice it too. And even on Lat’s own terms, I’m not sure we’ve found it. A failure to file the notice of appeal within the thirty days, obscured by a weird glitch in the fax machine or scanner or some combination of the two is less obvious than it seems. For example, I have a few questions for Audrey Coyne:

1. What rule of the FRAP governs the notice of appeal? What is its exact language? Any case law interpreting it?

2. Does a failure to file a timely appeal revoke jurisdiction by operation of law, or is it a discretionary standard? Relevant cases?

3.If discretionary, does the appellee waive the jurisdictional defect by failing to raise it? Relevant cases?

4. If mandatory, is there a version of hypothetical jurisdiction that survives Steel Co. and its progeny that could be invoked? Relevant cases?

5. Perhaps most importantly, on the factual question of timeliness, did the untimely filing result from an error from the clerk of court rather than the appellant? Does that matter legally? Relevant cases?

I’m just riffing here—I suspect Lat has his bases covered (but I am curious about #5). My point is that someone who has just graduated from law school will have absolutely no idea, without further research, whether this is indeed a dispositive issue or if it is a minor glitch (good luck navigating the seemingly categorical abolition of hypothetical jurisdiction: see Alan Trammell’s article for some interesting ideas here). To optimize between these tensions—something obvious enough for the clerk but obscure enough to go undetected—we have to get into some pretty dramatic acrobatics that effectively limits our ethical dilemma to the realm of fantasy.

This is fighting the hypo, of course. But it does show that the real ethical question here is this: what should a clerk do when the judge has made a decision, with no basis in law that is apparent to the clerk, and with which the clerk strongly disagrees? There have been two solutions floated. First, Lat’s and, I think, Will’s solution: internal sabotage by way of leaking the key detail that leads you (the clerk) to be sure your judge is venal or crazy or careerist or whatever else to another chambers and let the Article III juggernauts evaluate the case in light of your brilliant legal sleuthing. Second, my approach: accept the fact that you may not understand the law as well as you think you do, the judge may have her reasons for rejecting without explanation your conclusion, and anyway, the judge was the one hired to make these calls. You have done your duty and brought your perspective to bear, but you got overruled. Them’s the breaks. Maybe you’re wrong and you’ve saved yourself the embarrassment of moral indignation that is, in fact, reflective of your ignorance. Maybe you’re right (as was Audrey, apparently) and your boss (as was Judge Stinson, certainly) is a fraud. But if so, that’s a problem for the politicians, not for you.

Once we go in search of a broader principle, I just don’t see how we should hope bright future lawyers should reach for internal sabotage as the first best solution to a dispute with their client/boss. But giving the benefit of the doubt to the ethically conflicted, perhaps there is another way short of sabotage. If there’s truly a case that meets the above standards, then maybe the clerk shouldn’t have to just grin and bear it. Instead of sabotage, the clerk can resign on the spot without filing the bogus opinion, but never disclose the reason for the resignation.

This may be the best approach, and the one most consistent with the ethics of lawyering that law clerks will face in her career. Will analogizes the ethical duty between lawyer and judge to junior lawyer and senior lawyer, where the junior lawyer only owes her boss the benefit of the doubt when the discretion exercised is legal. I would analogize it differently: it’s more like a lawyer-client relationship. And if a lawyer ever leaked a harmful document to opposing counsel, or even (in a friendly transaction) to the other side, we would appropriately want to see her disbarred.