Real Mentorship: Do Judges and Law Clerks Still Do This?

Please see Update Below (Tuesday, May 17, 9:30 a.m. EDT)

Gerald Gunther, the constitutional scholar, was a profoundly important apostle and chronicler of the rule of law during his long and fruitful life. In addition to writing and then continually editing (through 12 editions) a constitutional textbook that generations of law students first used to hone their craft, Gunther literally wrote "the book" on one of the nation's most extraordinary jurists: Billings Learned Hand. If Gunther had done one or the other he would have been appreciated beyond his death. That he did both is a blessing, indeed.

I am now slogging my way through Gunther's Learned Hand: The Man and the Judge (second edition with foreword by Supreme Court Justice Ruth Bader Ginsburg). Gunther clerked in 1953-54 for Judge Hand and then subsequently taught Ginsburg at Columbia Law School. In her foreword, the justice cited the words of her former colleague, David Souter, who wrote that Gunther "has studied a life and written a book the way Learned Hand harrowed a record and resolved a case."

Even lawyers and law students who have heard about Judge Hand probably don't know that in addition to his stewardship of the 2nd Circuit for decades he also sort of invented the modern-day practice of federal judicial clerkships, which are nearly 100 years later still the gold standard in legal apprenticeship. From Gunther's book, here's how it worked being a clerk with ol' Judge Hand:

In writing his memos and opinions, Hand worked with a legal-size pad of yellow paper, which he propped on a board resting on his knees or set on his desk. Before getting down a word, he would tell the clerk what he planned to write in, say, the first two paragraphs, and then invite--indeed, press--him to offer criticisms.

Hand took these very seriously, The clerk would then return to his own desk while Hand wrote out the first paragraphs in longhand. Soon, Hand would give the yellow sheets to the clerk for renewed criticism; if the clerk had objections and Hand saw merit in them, he would try again. He repeated that procedure for page after long yellow page of his drafts, continuing to press for comment; in the most difficult cases, he would go through as many as thirteen draft opinions...

Most of Hand's clerks, fresh out of law school, were startled to find this experienced jurist; a near mythic figure, a household word to every law school graduate, the master judge of his generation, asking for help and insisting on candid criticism and continuous oral participation in the decision process. Was it really conceivable, they would wonder, that Hand was seriously interested in their views when they were just months away from the classroom?... As the clerks got to know Hand better, most realized that he was entirely serious about his constant prodding to elicit critical analysis, and that this unique way of working with his clerks was part and parcel of his distinctiveness as a judge.

Talk about harrowing a record. There is something awfully poignant and powerful in the idea of a man in season acting humbly as he goes about his craft. For Hand, this willingness to keep an open mind, in the main and in each specific case, clearly showed in both his work and the legacy he left to others. So my question for all you judges and law clerks out there--and you know who you are--is this: in the age of computers and Westlaw, does this sort of give-and-take happen today, nearly 60 years after Gunther clerked for Hand? Yes or no, I'd like to hear your stories and I suspect many others would as well.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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