by David Lat
Judge Stinson stared at me. I let the silence linger. Normally I hate conversational breaks, but I had said my piece.
I realized at that moment where the “I’m you” had come from. A few years ago, a Senate candidate in Delaware responded to accusations that she dabbled in witchcraft by running television ads that started out with her saying, “I’m not a witch. I’m you.” After watching this video endlessly on YouTube (because I found it hilarious), the phrase “I’m you” seeped into my subconscious—from where it burst forth during a moment of great stress.
“Audrey,” Judge Stinson said, after a silence that seemed to last forever, “I don’t normally do this …”
What was she about to do? Throw me out of chambers? The Yale clerkships adviser would be thrilled to learn how I mouthed off to a Ninth Circuit judge, who would probably refuse to hire Yalies for the next five years in retaliation for my rudeness.
“I prefer to wait until I’ve finished all my interviews before making offers,” said Judge Stinson. “But I feel a special connection with you. I would love to have you as my clerk.”
I felt nauseous. I felt elated. This was actually happening.
“Judge Stinson,” I said, trying to imbue my voice with maximum gravitas, “I would be honored to have you as my judge.”
We shook hands again. Her handshake was firm, but her hand was impossibly soft. Pearl cream?
“Excellent,” the judge said. “I look forward to our working together.”
3
Before I knew it, it was a sweltering Sunday afternoon in August 2012. Upon landing at LAX, I called my old pal Pervez, who had driven me to and from my interview with Judge Stinson a year earlier. After my two suitcases were stashed securely in the back of the minivan, we drove off to Pasadena.
“So,” Pervez asked, “why did you decide to live in Pasadena?”
“I’m going to be working long hours as a clerk, and I don’t drive. So I need to be close to the courthouse.”
“Ah yes, the courthouse I took you to—beautiful courthouse. Anyone who works in that building must be very important!”
Although I was glad that Pervez no longer viewed my clerkship as purely clerical, I responded to his impressed-sounding tone with humility. I emphasized that law clerks simply assist the judge, who is the ultimate decision maker, and that everything coming out of chambers would go out under the judge’s name. As clerks, we were like Santa’s elves—essential but unseen contributors to the process.
This limited responsibility was something I actually appreciated, at least some of the time. I had just graduated from law school (and not a very practically oriented school at that), and I was not even admitted to the bar (New York bar exam results wouldn’t come out until November). What did I know—about law, or life, or anything? It gave me comfort to know that I would just be doing research and making recommendations, which my judge was free to ignore or override as she saw fit.
On other days, of course—like, for example, the day that I got the clerkship—I felt excited by my proximity to power, and confident that I would be an amazing law clerk. But today I felt anxious, like a third grader about to start a new school year. I suspected that this vacillation between anxiety and minimization of one’s role, on the one hand, and confidence and exaggeration of one’s influence, on the other, was common among law clerks.
There wasn’t much traffic on this Sunday, so it didn’t take long for us to arrive at my new home: a nondescript, run-down, low-rise apartment complex a few blocks from the courthouse. I had taken the small studio without visiting it in person (because I couldn’t afford another flight out to Los Angeles), so I had seen it only in pictures. Like someone you’ve seen only in an online dating profile, it looked dumpier in person.
Pervez took my heavy suitcases all the way to my door, on the second floor of the open-air building. Once again, as I had done when he drove me to my clerkship interview, I gave him $100 on an $80 metered fare. I was happy to be generous, especially given how nice he was and how much he had to fight with my bags, but I did feel a twinge of money-related worry as I fished the twenties out of my wallet.
Money worries were why I had gone with this apartment, a unit passed down among several cycles of Stinson clerks, along with IKEA furniture on its last legs. So I wasn’t that troubled after I opened the door and surveyed the cramped, borderline grim-looking quarters, which looked like a motel room where a down-on-his-luck movie outlaw might hole up while on the lam. This was what I had expected. This was what it looked like to be living on a law clerk’s salary with more than $150,000 in student loans. And this was not where I’d be spending most of my time anyway; former Stinson clerks had joked about how chambers was their real home.
At least Michael Nomellini, the prior tenant, had left the apartment very clean (especially for a guy). It didn’t take me long to unpack and tidy up the place. Since it was still bright outside, I decided to check out the apartment’s small swimming pool, located in the central courtyard. I just wanted to take a quick look, so I didn’t bother changing into a swimsuit.
The pool itself was well maintained but empty. There was only one resident sitting next to the pool, and she was hard to miss: a young, large African American woman who reminded me of Gabourey Sidibe from Precious. She wore a red bikini with white polka dots. And she was reading a copy of … the Stanford Law Review?
I stood at the edge of the pool area, behind the white metal gate. My neighbor, deeply engrossed in her reading, did not notice my presence. Should I go over and say hello?
Intrigued by my neighbor, I didn’t notice how much I was leaning into the gate—which swung open with a loud creak. I fell forward before regaining my footing. The young woman looked up, and our eyes met.
“Girl, what you looking at?”
Her confrontational tone rendered me speechless.
“What,” she said, “are your ears as small as your tiny white ass?”
I tried to defuse her hostility with warmth. I walked over to her, put on a big smile, and extended my hand.
“Hi,” I said. “I’m Audrey. I just moved into the building.”
“Harvetta,” she said, rising to her feet and shaking my hand. “Harvetta Chambers.”
“I’m sorry, I didn’t mean to, startle you. I was just, well, you know …”
“Oh, I know, all right! You were just checking out my big black booty!”
She slapped her prodigious thighs and laughed. I joined in, feeling relieved; Harvetta’s belligerence was playful. Was she going to be my Sassy African American Friend?
“Actually,” I said, “I noticed your reading material. No offense to the Stanford Law Review, but I go with Us Weekly when working on my tan.”
“You kidding? I love law review articles. I can get interested in almost any type of law. For my job I’m a state law kinda gal, but today I’m reading on the federal side, about the effect of the SEC’s new proxy access rule on shareholder value for small companies. Next up is a linguistic analysis of ERISA preemption. Followed by an empirical assessment of dissentals—you know, dissents from denial of rehearing en banc in the circuit courts. Right now I’m like a pig in shit!”
I didn’t quite know what to say to that.
“So,” I said, “did you go to Stanford Law?”
“Naw,” Harvetta said, “Stanford? That place is for rich bitches. I keep it real—I went to McGeorge. You a lawyer too?”
“Well, almost, kind of,” I said, as I frantically tried to recall what I even knew about McGeorge. “I took the bar a few months ago, but I haven’t gotten the results yet, so I’m not yet a lawyer. Right now I’m clerking for a judge.”
“Get the fuck outta here! Me too. Who you clerking for?”
“Judge Stinson? Ninth Circuit?”
“Is that a statement, or a question? Because I’ve heard of the Ninth Circuit. Isn’t that the crazy liberal court that’s always getting smacked down by the Supreme Court?”
I felt myself
blushing. Even though I hadn’t started work yet, I wanted to defend the honor of the court, or at least of my judge.
“My boss, Judge Stinson, is one of the more conservative judges …”
“Yeah, look, you don’t need to explain yourself to me,” Harvetta said. “I’m just clerking for a state judge, not one of those fancy federal judges.”
“For whom are you clerking?”
“Sherwin Lin, California Supreme Court.”
I didn’t know that much about state court clerkships, but I had a vague recollection of the California Supreme Court using long-term staff lawyers rather than law clerks.
“Oh,” I said, trying my best to sound politely confused, “I thought that the California justices didn’t have law clerks?”
“Yeah,” Harvetta said, “the Cal Supremes usually roll with permanent staff attorneys. But Lin is trying something new—a mix of staff attorneys and term clerks. His staff attorneys are up in San Fran with everyone else. We’re his first two clerks, working with him here in Pasadena, where he lives. He got permission from the court to keep chambers down here for now because his dad is real old and sick and lives here. It’s an experiment. Hope we don’t fuck that shit up for everybody else!”
My strict Filipina mother did not tolerate profanity, so people who cursed a fair amount—like Jeremy, and definitely like Harvetta—sometimes threw me for a loop. My face must have betrayed my discomfort.
“What, is my potty mouth freaking you out, girl? Don’t you worry. I am like the president,” Harvetta said, raising her arms skyward before adopting a markedly different tone, straight out of the evening newscast. “I am extremely talented at calibrating my manner of speaking to my audience. Do you think I obtained a clerkship with the Honorable Sherwin Lin by cursing up a blue streak during the interview?”
Once again, Harvetta left me speechless. She liked to read law review articles for fun. She could oscillate seamlessly between gangster and grande dame. Who was this bizarre woman?
“So,” she asked, as I tried to collect my dropped jaw from the pool deck, “where did you go to law school? Some fancy-ass place?”
“Um, Yale?”
“Yeah, I figured,” she said, smacking my forearm—surprisingly hard. “Don’t worry, I won’t player-hate. My boss went to Yale, so I have mad respect.”
That’s right: Harvetta’s judge, Sherwin Lin, was still renowned at Yale for his brilliance. He served as executive editor of the law journal, won a slew of prizes at graduation, and clerked on the D.C. Circuit (of course) followed by the U.S. Supreme Court (of course). He was nominated to the Ninth Circuit before the age of 40, but some of his controversial speeches and academic writings as a UCLA law professor derailed his nomination. After the Republicans successfully filibustered his Ninth Circuit appointment, the governor appointed him to the California Supreme Court.
Despite (or perhaps because of?) my puzzlement at Harvetta, I wanted to get to know her better. She seemed friendly, beneath the tough-talking veneer, and she was without a doubt an interesting character. We exchanged contact info and agreed to hang out sometime.
As I headed back to my apartment, I continued to think about Harvetta. I would have expected someone who liked to read law review articles for pleasure to have attended a higher-ranked law school than McGeorge (whose rank I looked up on my iPhone almost immediately after we parted ways; it wasn’t even in the U.S. News top 100). And I wondered about where her whole “street talk” thing came from. If I had to guess, she was from an upper-middle-class African American family but was trying to “keep it real” by sounding like someone from a more modest background.
Based on the fact that she had landed a clerkship with Justice Lin, Harvetta must have done fairly well in law school. But even a clerkship on the California Supreme Court, the highest court of the largest state, was less prestigious than most federal court clerkships. As for U.S. Supreme Court clerkships, I wondered: did Harvetta even know about them?
4
I was nervous when I arrived at the Ninth Circuit courthouse for my first day at work. My pale gray Theory skirt suit, a pricey splurge from my summer at Cravath, wasn’t giving me the usual jolt of confidence. I don’t sweat very much, but by the time I arrived at work, I was sweating—and not from the seven-minute walk from my apartment to the courthouse, in a still-cool California morning.
This Monday marked the start of my Legal Career. And because I went straight though to law school from college, this was also the first day of my first Real Job. This was a Big Deal.
When I reached the door to Judge Stinson’s chambers on the fifth floor, I pressed the buzzer tentatively, just as I had when I came for my interview. Instead of being buzzed in, the door flew open before me.
“Audrey! So wonderful to see you! Welcome!”
Before I knew what was going on, I was being hugged by the judge’s secretary, Brenda Lindsey—all of Brenda Lindsey. I tried my best to return the hug, although I feared I was doing so too stiffly. Brenda and I had met just once, but as the outgoing clerks had told me, Brenda viewed the clerks like her children.
“The judge is out of town this week for a conference,” Brenda said, “but let me show you to your office and introduce you to the other clerks.”
I was the last of my clerk class to arrive, a position I had chosen to give myself time to decompress after taking the bar exam in late July. The downside of arriving last meant I got the one windowless office, while my co-clerks enjoyed views of the Arroyo Seco valley and the Colorado Street Bridge. I consoled myself by telling myself this would be an advantage: a windowless office meant fewer distractions from work. (And I could always go work in the chambers library—yes, the chambers had its own private library, in addition to the main courthouse library on the first floor—if I wanted sunlight and a view.)
As for my co-clerks, we had already met each other online—i.e., over email and Facebook—but meeting them in person still felt momentous. Would we become fast friends, foxhole buddies in the Ninth Circuit’s jurisprudential war? Would we wind up as rivals for the favor of Judge Stinson, constantly trying to outdo and one-up each other? Or maybe a bit of both? The legal profession, stocked with competitive overachievers, was rife with such “frenemy” relationships.
Something made me uncomfortable about Amit Gupta, a graduate of Columbia Law, where he had served as executive managing editor of the Columbia Law Review. (He didn’t mention that when we met, but of course I had looked up all my co-clerks on Google prior to arriving in chambers.) Amit seemed intense, energetic, and high-strung; he bowed slightly when he shook my hand and said, in a manner that bordered on fake, “It is a pleasure to meet you!”
We had some things in common—minorities, both from New York, both from Queens, even—but I felt there was something Amit was hiding from me, something that made me uneasy. I resolved to keep an eye on him. Maybe I just felt threatened by him because I viewed him as my biggest competition for Judge Stinson’s favor. Amit had won the National Spelling Bee as a child. Would that kind of quirky honor catch the eye of a justice or a clerk skimming through Supreme Court clerkship applications?
I felt more at ease upon meeting James Hogan, who had a firm but not crushing handshake and a bright, easy smile. He could also be in the running for a SCOTUS clerkship, as a graduate of Boalt Hall, the judge’s alma mater. His impressive height and striking good looks certainly wouldn’t hurt him. It seemed to me, based on anecdotal observation, that Supreme Court clerks tended to be better-looking than average; perhaps the justices, faced with so many excellent résumés, used looks as a tie-breaker.
For whatever reason, I didn’t feel as immediately competitive with James as I did with Amit. Maybe it was because James and I were so different; he seemed so relaxed, so Californian, and so tall. Compared to James, Amit and I looked like dark neurotic dwarfs.
I didn’t know what to make of my third co-clerk, Larry Krasner. Maybe I was reading too much into the fact that he graduated from a l
ess highly ranked law school—Loyola Law School, based here in Los Angeles—but he didn’t have a very academic air. Maybe he was having a bad day or something, but he greeted me with so little enthusiasm, it seemed like he didn’t even want to be in chambers.
I spent the rest of my first day with Janet Lee, the outgoing clerk that I would be replacing. Janet, whom I had briefly met when I interviewed with the judge, was also originally from New York, although she had gone to law school at Stanford. She was now moving back to New York to work at Wachtell Lipton.
Janet described my specific duties as a clerk, which could be divided up into three broad areas. First, in advance of each oral argument “calendar,” or one-week period in which Judge Stinson would hear cases in court, I would help the judge get ready for the arguments. This would involve writing a “bench memorandum,” a memo summarizing the facts and legal issues of a case and offering a recommendation for how the case should be decided, and preparing a “bench book,” a binder containing the memo and various key documents relevant to the case. (Janet referred to the making of the bench book—which involved highlighting the documents, putting them in a particular order, and sticking colorful tabs all over them—as “arts and crafts.”) I would also meet with the judge to discuss the cases orally during “review week,” the week immediately prior to the calendar week.
“Here’s one thing you must remember,” Janet said. “When you first get a new case, you need to make sure the court has jurisdiction to hear it. Judge Stinson is very particular about jurisdiction.”
I knew this from having talked about it with the judge during my interview and from the judge’s writing in the area. Jurisdiction concerns the court’s authority to hear a particular case. There are all sorts of reasons, some quite technical, as to why a court might lack jurisdiction—and if there’s a “jurisdictional defect,” the case must be dismissed.