Judge Suspended from the Bench in Nevada

A state court judge, Steven Jones, in Nevada, who was elected to the bench in 1992, was suspended from his position for allegedly defrauding investors out of $3 million.  He was suspended with pay and will go to trial sometime next year.

His law clerks, if he had any, are likely hanging in the wind.  It is possible they have been absorbed, so to speak, by other judges on the same court to finish their clerkship terms or that they started a deferred law firm position a little early.  It is also possible that they are joining the ranks of the unemployed J.D.s out there who are in desperate search of a full-time position.  When judges are suspended from the bench or otherwise shown the door, they leave more than their reputations in their wake.

No More Policy of ‘No’…for now…for one Senator

Senator Mike Lee (R-Utah) has said that he will suspend his policy of automatically voting ‘no’ for the President’s judicial nominations, at least until the President again makes appointments during a congressional recess.  According to a Blog of Legal Times piece, Senator Lee decided to protest the Administration’s January recess appointments by voting ‘no’ on every judicial nominee the President put before the Senate, even a nominee from Lee’s own state whose nomination he had supported.  Instead, the Senator has decided that the Thurmond Rule, whereby Senate Republicans slow the confirmation process for circuit court nominees at the end of a president’s term, will suffice for the time being.

Perhaps Senator Lee’s move is a clear signal that the Republican leadership in the Senate is ready to engage in productive confirmation proceedings for judicial nominees.  In any case, the drama that continues to unfold around the President’s nominations to the federal bench is an interesting one to watch, which is exactly what law clerk applicants should be doing.

Sign o’ the Times – Free Law Clerk Labor Means the New Diversity Remains Elusive

District Judge William Martinez in Denver, Colorado, is seeking a third law clerk.  And that third law clerk must work for free.  This Salon article by law professor Paul Campos examines the legality of an unpaid clerkship position.  Under the Fair Labor Standards Act (FLSA), no person can work for free, with certain limited exceptions.  This would not be one of those exceptions, particularly when there are two law clerks already working for Judge Martinez who are receiving compensation for doing precisely what the third unpaid law clerk will do.

This is a sign of what have been very difficult times for the majority of new and almost new attorneys.  Law firm spending has dried up, law students and lawyers who otherwise would have no interest in government jobs are snapping up those positions, non-profit organizations and fellowship programs have more applications from law students and lawyers than they can handle.  Judges are no different.  Their application numbers have grown exponentially since the economic downturn, and they are receiving applications from more and more qualified (and over-qualified) attorneys who are desparate for a judicial clerkship.

The judiciary, particularly the federal judiciary, has struggled to achieve, or even seek, racial diversity in its clerkship ranksSupreme Court justices have testified on Capitol Hill about the lack of racial diversity in their law clerk hires.  Obtaining a judicial clerkship and successfully using that clerkship as a stepping stone to something else is about impeccable self-presentation, yes, but it also is about having and utilizing personal networks and connections.  Judicial clerkships have been a method of professional polishing available exclusively to the elite for generations.  Clerkships are the untold story behind the professional successes of many well-known attorneys.  As clerkships slowly have become available to more applicants from a variety of backgrounds, the term diversity has been redefined in the clerkship context.  Justice Clarence Thomas speaks often of the need to look beyond Harvard and Yale for law clerk recruits.  Diversity in many things – law school attendance, geographic location, professional experiences, etc. – is crucial to ensure that the upper-echelon legal hiring pools are diverse, and also to ensure that judges render their decisions, as they usually do based on research that law clerks conduct and perspectives that law clerks contribute, in a way that accounts for facets of society with which they may not have personal familiarity.

The devastating truth about this sign of the times is this:  there are no longer enough law jobs for the number of law students graduating every year; clerkships remain one of the most highly coveted law positions out there; the unpaid law clerk who takes a position with Judge Martinez will be able to utilize that clerkship as a launching pad and develop the network and connections necessary to excel in the legal profession; the person who can afford to work full-time with no pay for an entire year most likely will not be a person who would count for diversity purposes as newly defined in clerkship terms or otherwise.

Circuit Judge Nomination Stalled Since February

Circuit Judge Brian Davis has the distinction of having been nominated to the federal bench by the President of the United States.  Unfortunately for him and for his prospective colleagues on the Middle District of Florida District Court who are awaiting some assistance, Judge Davis has not yet been confirmed by the Senate.  His nomination has been the subject of political wrangling, and so he joins more than 40 other nominees awaiting Senate confirmation to the federal courts.  During his first term, President Obama’s administration has seen 160 judges move successfully through the Senate confirmation process, including two Supreme Court justices — Sonia Sotomayor and Elena Kagan.  There remain, however, 80 federal court vacancies with at least a dozen more vacancies expected to occur before President Obama completes his second term.

The President’s judicial nominations expire at the end of this calendar year.  If the Senate does not confirm the nominees by December 31, some of the nominees may bow out of the process altogether, while the President may re-nominate others.  Anyone interested in clerking for a federal judge, especially second- and third-year law students who did not apply for a clerkship by the day-after-Labor Day deadline this year, should watch very closely these vacancies, the President’s nominations, and the Senate confirmation process.  There is no set application timeline for judges who have just been confirmed to the bench, so applicants may apply for law clerk positions with recently confirmed judges well outside of the OSCAR timeline.  Not that most judges have that much respect for the OSCAR timeline, but that’s a post for another day…

Court Attorney Fired for Her Tweets

A word of caution to law clerks who have just started their clerkship terms and to soon-to-be law clerks: a sure way to be fired from a clerkship is to tweet in real time about a case before the court.  Sarah Peterson Herr was recently promoted to research attorney for a Kansas Court of Appeals judge.  Perhaps feeling a little cocky, she tweeted during a Kansas Supreme Court hearing for the former Kansas Attorney General Phill Kline that the court would disbar Kline, whom she called a “douchebag,” for no less than seven years.  The court is considering disciplinary action against Kline for possible ethics violations during his investigations of abortion clinics.  The Kansas Supreme Court announced on Monday that it had decided to terminate Ms. Herr’s employment because of her tweets.

Law clerks are extensions of their judges and must act accordingly.  It is no surprise that Ms. Herr was let go.  The court had no choice.  Although she is a research attorney, her job description reads very much like a law clerk’s:  “ascertaining facts from a record of legal pleadings and trial transcripts, researching applicable law, and providing comprehensive legal analysis from an objective viewpoint.”  The judiciary is charged with neutral interpretation of the laws and impartial adjudication of disputes based on those laws.  It is impossible for judges to fulfill these obligations if their representatives/mouthpieces are spewing bias.

Layoffs at the Federal Court??

I spent some time yesterday morning discussing the effects of sequestration on education.  What about the effects of sequestration on the judiciary?

According to a Blog of Legal Times (BLT) post, the federal courts would see drastic cuts of up to $555 million if Congress and the White House don’t find a scenic route to avoid the so-called ‘fiscal cliff’.  Among other things, this would mean that one in three court staff positions, certainly including judicial law clerks, would be cut.  With more than 80 vacancies on the federal judiciary, courts already are weathered by heavy amounts of complicated, lengthy, and expensive civil litigation and the need to quickly dispense justice in criminal cases.  As Senator Patrick Leahy (D-VT) said recently, “Our courts are already overburdened, and the sequester will result in cuts that will force courts to hear fewer cases, which means that court proceedings will be delayed even longer.  This will be especially damaging in civil cases, where there are already over 40,000 cases that have been pending for more than three years….  Even more alarming, is what is at stake in the criminal context.  If probation and pretrial services offices are downsized or closed, Federal courts and their staff will be unable to properly supervise thousands of persons under pretrial release and convicted felons released from Federal prisons.”

Although the tremendous across-the-board spending cuts that are sequestration would bring about confusion, uncertainty, and unrest that are likely to result in more civil and criminal complaints, the federal judiciary will essentially grind to, at best, a slow churn and, at worst, a complete halt.  And, if sequestration does not happen, the federal courts still will need congressional support to confirm waiting nominees to the federal bench and increase spending to the federal judiciary.

Law degrees are no longer recession-proof

This article in the Washington Post Magazine adds to the searing critique of the rising costs of law school tuition and the seeming inability or unwillingness of law schools and the federal government, which issues loans to law students no matter the price tag, to stop the bleed. Law schools and the federal government are, respectively, charging tuition and issuing loans to cover that tuition as though the legal profession is what it used to be – a sure bet. A sure bet for, at the very least, the middle-class security of old. Things have changed significantly. The old safety net that supported entering law students’ confident swagger is completely gone.  No longer are they assured a spot in the upper echelons of society once they graduate.

Most striking from this article are the statistics: nine months after graduation in 2011, only half of law school graduates have found full-time employment as attorneys; and, although there will be 73,600 new lawyer jobs available between 2010 to 2020, according to the U.S. Bureau of Labor Statistics, by next year, more than 130,000 new lawyers will have hit the job market.

I can’t help but wonder what this means for public interest attorneys and for those communities who rely on their services.  With spending cuts taking place at the federal, state, and local level at the same time that law school tuition is going up, there are fewer public interest attorney positions, which means more work for attorneys who do take them.  It also means less money to pay public interest lawyers, who already are paid very little.  For a recent law school graduate who is staring at $150,000 and more in law school debt, a job at 30, 40, even 50 thousand dollars a year simply is not an option.  Additionally, the larger the debt, the longer attorneys must work just to pay off that debt so that viable candidates for the bench are able to put their names in the hat only if they are independently wealthy or have another source of income.  This is a slippery slope that will invite lowered levels of competence and ability in our public servants and may invite corruption as well.  The refusal of the law school academy and the federal government to examine this issue closely is short-sighted to say the least.

As the judiciary speaks out about pending sequestration cuts, the rising costs of law school tuition, and the heavy burdens judges must bear as a result, they necessarily take their law clerks along for the ride.  Law clerks who will watch and learn and who themselves will become advocates against this broken system.

Delaware Supreme Court Chastises Lower Court Judge for Lengthy Digression in His Opinion

The Delaware Supreme Court issued a stern rebuke yesterday to Judge Leo E. Strine, Jr. for writing an opinion that included his “ruminat[ions]” on issues far beyond the issues presented by the case.  Judge Strine sits on the Delaware Chancery Court, the most influential court hearing business-related cases in the country.

The opinion at issue was about a contract dispute but contained 11 pages of discussion about limited liability companies that was tangential discussion to the actual dispute before the court.  The Delaware Supreme Court told Judge Strine that he was way out of his lane.

It is quite possible that a law clerk recommended the inclusion of the 11-page digression or initiated the research to develop the roadmap for the meandering scenic route that Judge Strine took in his analysis.  Although it seems as though Judge Strine is independent-minded and most likely came up with this notion of an opinion off-shoot all on his own, what about the possibility that a law clerk planted the seed?  If so, maybe his or her star has risen in Judge Strine’s estimation.  Perhaps a rebuke from the Delaware Supreme Court is a sort of validation to him, particularly if the speculation about a rift between Judge Strine and Chief Justice Myron Steele of the Delaware Supreme Court is true.

Texas Judge Who Beat His Daughter Returns to the Bench. What of his law clerks?

On Wednesday, Judge William Adams of Arkansas County in Texas returned to the bench after serving a one-year suspension for beating his daughter and simultaneously shouting expletives at her.  Judge Adams’s daughter secretly recorded the beating in 2004 and released the video recently.  Judge Adams was angry with his daughter for illegally downloading digital files from the Internet.  He is an elected judge and his term will expire in 2014.

William Adams

I am curious about (1) whether, if the county court judges hire law clerks, Judge Adams had law clerks when he first was suspended from the bench one year ago; (2) what happened to those law clerks; and (3) whether he is in the process of hiring law clerks right now.  I also wonder whether this will affect the number and/or quality of clerkship applications he receives in the future in a negative or positive way.