"Cheating was widespread" among federal judges. There were "under the table" offers. The system caused "some judges to be dishonest," and it gave "law students a bad impression of how federal judges do business."
The authors of these barbs? The judges themselves.
They are talking about a reform tried last year to bring order to the wild, chaotic rite of selecting law clerks. Their comments come from a survey completed this month of federal appeals judges.
As reform movements go, it seems this one was a bust.
Now it's open season on law clerks once more, and many a distinguished judge is off in hot pursuit of the perfect mate.
Some judges have been appalled at the antics of their colleagues in recent years as they wooed and won these bright young law students. Matters grew worse when the judicial shenanigans made their way into tittering news reports, like one in The New York Times that described the process as a "frenzied mating ritual."
A decade ago, clerks were chosen for these coveted slots during their final year in law school, and it was a dry affair of resume and recommendation.
But as competition among judges heated up, so did the courtship. It is now a dizzying round of interviews and offers that come ever earlier in a student's career. One judge joked that the youngsters are now being hired "off their grades at St. Alban's." And another wondered, "Where will it all end? At birth?"
The recruiting season officially opens in January of a law student's second year -- a phenomenon which pleases no one. It puts pressure on the students and forces judges to gamble by picking before second-year grades are even in.
Yet both sides seem driven by forces beyond them.
For students, a clerkship on an illustrious court, such as the D.C. Circuit, means prestige, and working on cases that make law, sometimes even history. For judges, the right clerk can mean better opinions, fewer late nights and the cachet that comes with sending their prote'ge's off to clerk at the Supreme Court. "It is no big secret that that is quite a kudo for a judge," said appeals judge Alex Kozinski, of the 9th Circuit, who has sent his share of clerks to the Supremes.
Still, some who play the system as well as Kozinski, have become its harshest critics. In a Michigan Law Review article last fall, appeals judge Patricia M. Wald, former chief of the D.C. Circuit, bemoaned the "intense competition among judges, the unreasonable short-fuse deadlines for acceptance, the covert maneuvering" in the annual chase.
Last year, in a move to recoup judicial dignity, Wald and others suggested a new rule: No judge would extend an offer until high noon on May 1, when each judge would dial up his top choices. Judges in D.C. and several circuits agreed. Many did not.
The result was chaos.
And if anyone needed proof, there is the just-completed survey commissioned by Wald and three other judges who had championed the May 1 reform.
Of the 76 judges who responded, 19 liked the May 1 system better than the free-for-all of prior years; 40 thought it was worse; others had no opinion. And one poor fellow reported that he had to make 11 offers before getting the clerks he wanted.
Privately, students had their own tales to tell.
Some judges asked their current law clerks to call up a candidate before May 1 and oh-so-subtly find out what the student was thinking. One 1st Circuit appeals judge sent out a multiple choice questionnaire. It asked applicants, if called on May 1, whether they would accept, ask for time to think or turn down the judge. Others judges stuck by the May 1 offer date but sent word ahead that a student was their favorite. Get it?
While judges had agreed to give students an hour to think over the offer -- an idea some judges found demeaning -- a few judges told students that the offer was alive until they hung up the phone. How's that for judicial temperament?
One Harvard student said it was not exactly cheating on the judges' part, more like "nodding and winking," with judges "doing what lawyers always do. You have a set of rules, and you bend them and twist them in a lot of ways without really breaking them."
Thank goodness he got that bit of lawyering down so early in his career.
With tales of judicial cheating ricocheting about and the survey results in, Wald and her cohorts surrendered.
The "experiment was less than a rousing success," they wrote to their colleagues in a Jan. 9 memo. Everyone was free to do as he pleased.
Appeals judge Stephen G. Breyer, chief of the 1st Circuit and another champion of reform, groped for a bright spot. "It shows that judges are human beings."
And so the 1991 season is on.
Some judges are lying low. Abner J. Mikva, the new chief of the D.C. Circuit, hopes his phone doesn't start ringing too soon. "It's a silly game," he sighed. "The judiciary is not at its best when hiring law clerks."
A few would dissent.
Alex Kozinski, in fact, is proud of his prowess at the game. He lures his clerks by inviting them out for pizza, in for bagels and to join him at the poker table.
"It is kind of like sex," Kozinski mused.
In the way the process is viewed, he explained. "The same act can be ... made beautiful and pure or ugly and dirty, depending upon how you describe it or what your attitude is. It is a ... healthy process. I have no embarrassment about it."
Christmas in January
Attorney Michael Faber just can't stop a good thing from getting better.
As president of Gifts for the Homeless, a D.C. lawyers group that collects money to buy gifts each Christmas, Faber has been trying to close the books on the 1990 drive. At last count, donations stood at a record $78,000 from attorneys and staff at 81 law firms.
But the money keeps rolling in and organizers will pass out 30,000 more gifts this month.
When will it stop? Faber doesn't know. "The first rule of a good charity is always take the money."
Decisions, Decisions ...
Should lawyers have sex with their clients?
You'd think this would be an easy one, even for argumentative attorneys. But, no, in California, this has been a matter of debate.
Seems the state passed a law ordering lawyers to adopt new ethics rules governing the sexual conduct of the state's 125,000 lawyers. Now the bar can't decide just how tough to get. One proposal would ban sexual contact outright. But some lawyers argue that violates freedom of association.
Another proposal, adopted this weekend by a state bar committee, would prohibit lawyers from demanding sex as a condition of representation. That, some lawyers say, is already addressed by other, broader ethical rules.
L.A. County Bar President Patrick Kelly thinks it's all unnecessary. "The simple fact is, lawyers by and large don't have sex with clients."
Another L.A. lawyer, appalled by all these debates over nuance, proposed this way out of the dilemma: "Let's pass a rule that says it's OK, as long as the sex is bad."