by David Lat
I stared at the screen, reading the dissent yet again, and wondered how to respond. In terms of what was supposed to happen next, I would edit the majority opinion to respond to the dissent, get Judge Stinson’s sign-off on the edits, and circulate the revised opinion to the other two judges. But I was at a loss for how to revise the majority opinion to respond to Judge Gottlieb’s persuasive argumentation.
This dissent was great. Did Jeremy draft it? I picked up my office phone.
“Why, hello there, Audrey! I’ve been expecting your call.”
“And why is that?”
“I trust you’ve just read my handiwork in Hamadani?”
“So that is your case. Based on all the attitude in the dissent, I suspected that you might have a hand in it.”
“Yup. What do you think?”
“It’s good.”
“It’s ‘good’? That’s all? You’re hurting my feelings.”
“Okay, it’s very good. But it sounds like you don’t need me to tell you that.”
“Maybe not. But I still like to hear you admit it.”
“Well, this isn’t over,” I said. “You’ll be hearing from us.”
I wondered if Jeremy could see through my false bravado. After I got off the phone with him, I printed out a copy of the dissent and read it over while wielding a red felt-tip pen, a weapon that I hoped would give me courage. I underlined forcefully, scribbled furiously, and filled the margins with checks and question marks.
But this exercise in engaged reading did not produce the hoped-for insight into the fatal flaw of the dissent’s reasoning. Nor did my careful review of all the cases cited in both the majority and the dissent.
Having made absolutely no progress in trying to unravel the dissent, I concluded I had no choice: I had to go see the judge. She’d know what to do. Even if she didn’t usually go for hand-holding—she told us early on that she wanted us to be independent thinkers—this was an exceptional case. I had never been this stumped by anything during the clerkship.
I headed over to Judge Stinson’s side of the chambers, something I generally didn’t do unless summoned, and approached the doorway to her office. The door was open just a crack, in a way that seemed to say “I have an ‘open door’ policy, but I really don’t want to be bothered.” When I started clerking, Judge Stinson would usually leave her door wide open, but lately—since November or so—the judge was often on the phone, with the door fully or mostly shut.
I opened the door just a little, enough to stick my head in, and knocked softly on the doorframe. The judge, seated behind her brown barge of a desk, looked up from the brief she was reading.
“Judge, sorry to bother you. Could I ask you about something?”
I thought I detected a flash of irritation cross her face, but if so, she concealed it quickly.
“Certainly,” she said.
I sat down opposite the judge in one of the guest chairs, which felt so small in front of her imposing desk. This wasn’t like when I interviewed for my clerkship, when I sat on the sofa and she in a club chair, or when we reviewed cases together, when we both sat at the conference table. I could feel the power differential between us.
“Judge, have you had the chance to read Judge Gottlieb’s dissent in Hamadani yet?”
“I saw that he circulated it, and I skimmed it. But I haven’t looked at it in detail yet.”
“It’s strong. Very strong.”
“Of course it is,” she said, swatting an imaginary fly with her small pale hand. “I warned you about that when you submitted your weak first draft to me. But I thought your revision—which you turned around very quickly, I must say—was significantly improved. I would not have allowed it to leave chambers if I did not think it was solid.”
“Well, I feel that even with the improvements, our draft opinion doesn’t hold up well against the dissent. I’m not sure if we have good arguments to respond to Judge Gottlieb’s points, especially his analysis of prior Ninth Circuit cases about what constitutes persecution. I wonder if, maybe, the outcome of the case should be, perhaps, revisited …”
“Are you suggesting that I change my vote in this case?”
I paused and took a breath. My mouth felt as dry as the pages of the Federal Reporter.
“I’m sorry, Judge. Of course I’ll revise the majority opinion. But could you perhaps—after you’ve had the chance to read the dissent, of course—give me some, well, additional guidance in terms of how you’d like the opinion to be revised?”
Silence. The judge stared at me, lips turned inward to form a grim, angry line. It was as if I had asked something patently offensive, like when she and her husband last had sex.
“Audrey,” said Judge Stinson, leaning across the massive mahogany desk, “I am a federal judge. I do not concern myself with trivialities.”
I was about to protest that the legal arguments for and against political asylum are not “trivialities,” but thought better of it—which was just as well, because the judge wasn’t finished.
“If you can’t think of the arguments to sustain my position, which was also the position of the third judge on the panel, Judge Hollingsworth, then I suggest you consult with Amit. He has excellent analytical skills.”
15
I was not a fan of Intelligentsia Coffee. The café itself, a loft-like space with one wall of exposed brick and another painted an electric blue, exuded an industrial, hipster coolness. I preferred my coffee shops to be cozier—and less expensive. Intelligentsia charged four dollars for a small cup of overly bitter coffee. Granted, it was individually prepared, by an elaborately tattooed barista, on a long counter made of Douglas fir, but I could have done without the pageantry. I would happily have met up at Starbucks. Jeremy, however, wouldn’t hear of it; as a coffee snob, he viewed Intelligentsia as the only acceptable coffee place in all of Pasadena.
Despite living (or perhaps because he lived?) just a few blocks away, in a luxury apartment building in downtown Pasadena, Jeremy was running late. I sipped my milky and sweet coffee, sitting at a high-top by the wall, and read New York Times articles on my phone.
A family with a daughter with Down syndrome entered the café and walked past my table toward the counter. I watched them as they lingered over the pastry selection (which I had passed on, due to cost and calories).
Even though the daughter was just a teenager, she reminded me of my older sister, Elizabeth. My sister suffered from Prader-Willi syndrome, a rare genetic disorder that caused her to have cognitive disabilities and behavioral problems. My parents tried to keep Elizabeth at home with them for as long as they could, but after an incident in which my sister came at my mother with a knife, they had no choice but to put her in a center for disabled adults. They felt great guilt over doing so and tried to see her every week, either going to Staten Island to visit Elizabeth in her group home or bringing her to Woodside to spend the weekend with them.
My parents loved my sister but never expected anything from her. The extra expectations landed on me. Growing up, I alternated between competing with Elizabeth for my parents’ attention and trying not to give them additional stress—both paths leading to overachievement. But sometimes I felt like little more than the sum of my accomplishments, my GPA and my SAT and my speech and debate trophies. And sometimes I envied Elizabeth for the unconditional love my parents gave her, how she could just be herself and win their attention and affection.
I missed my parents. I didn’t have time for a phone call, but I texted a quick hello to my mother, as I often did. She texted right back. As I guessed, my parents were on their way to Staten Island to visit Elizabeth. I imagined them boarding the ferry, swaddled in their puffy winter coats, and thought about how I was enjoying the weather here in southern California. I didn’t feel quite at home here and planned to return to the East Coast after my clerkship, but it was a nice change of pace for a year—part of the adventure of clerking, the freedom to try out a different part of the country. When my mo
ther asked how I was doing, I couldn’t resist texting back to brag, as Californians so often do, that it was 70 degrees and sunny on this December day.
The clink of a saucer on the table caused me to look up. Jeremy had arrived, bearing a latte with a beautiful heart made out of milk foam on the top. I texted my mom to tell her I had to go and greeted Jeremy. We chatted about random matters for a while—how sore he was from a new class he was taking at his gym, how my driving lessons with Harvetta were progressing—but I could tell we were both thinking about the same thing.
“So,” he said, sipping judiciously from his latte, “when are we going to be seeing a revised majority opinion in Hamadani?”
“I’m putting the finishing touches on my masterpiece this weekend. You should be getting the revised majority opinion sometime next week.”
“You’re not changing your vote? Our powerful dissent didn’t persuade you?”
“It’s not my vote, it’s Judge Stinson’s. I’m just the law clerk. The Senate didn’t confirm me to anything. I don’t have a signed commission from the president hanging in my office.”
Jeremy seemed annoyed.
“Okay, fine,” he said, “but if you were the judge, how would you vote?”
I shifted uncomfortably. I raised my coffee cup to my lips but found to my dismay that it was empty.
“It doesn’t matter what I think,” I said. “I’m just a clerk. One of four clerks to a judge. One of three judges on a panel. My personal views are irrelevant.”
“You’re just a cog in the machine, then?”
“You’re painting this as much more black and white than it really is,” I said. “This is a hard case, and I don’t know how I would vote if I were a judge. But reasonable minds can disagree, and there are strong arguments on both sides. Our position—Judge Stinson’s position—is not frivolous. In fact, as of now, it’s the position with two votes.”
“Because Hollingsworth is a right-wing political hack. Just like your boss, who just wants her Supreme Court appointment.”
My face grew warm. And it wasn’t from the coffee.
“Excuse me?” I said. “What did you just say about Judge Stinson?”
“You heard me. I hate to break it to you, Audrey, but your boss is a fucking hack. She claims to just want to ‘follow the law,’ but when the law leads her to a result she doesn’t like, she just cooks up some bullshit for not applying it. And to think it’s my boss who gets criticized for ‘judicial activism.’”
Criticizing someone’s judge was like criticizing her mother. I can complain about my mother to a friend, but if you complain about my mother, I will defend her to the end. My judge, right or wrong.
“That’s completely unfair,” I said. “You’re doing just what you accuse Judge Gottlieb’s foes of doing: calling a judge you happen to disagree with a ‘judicial activist.’ And maybe you and your boss are envious of Judge Stinson’s Supreme Court prospects under the incoming presidential administration.”
“We’ve been clerking for several months now. We’ve seen the opinions the judges write. We’ve seen how they vote on whether to rehear different cases en banc. Stinson is a conservative extremist. She never votes in favor of the immigrant, the criminal defendant, or organized labor. She always votes in favor of the government in immigration and criminal cases. She has never met a big corporation she didn’t like.”
“The opposite could be said of Judge Gottlieb. He always comes up with some tortured reasoning for voting in favor of the little guy.”
“At least when he votes for the little guy, it’s because he wants to do justice. It’s not because of his own ambition.”
“Life isn’t like the movies. The little guy isn’t always right. And that’s why your boss is constantly getting reversed by the Supreme Court.”
“No, my boss gets reversed because a majority of the justices are hacks too. Stinson will fit right in if she gets nominated.”
“There’s only so much the Supreme Court can do to control your crazy boss. It’s like a game of Whac-A-Mole—they can only slap down so many of his opinions.”
Jeremy paused to sip his coffee. He seemed to have calmed down a bit, but I was still agitated.
“Here’s some homework for you,” he said. “When you go into chambers today, go on Westlaw or Lexis and look up all the immigration cases that Stinson has heard since joining the Ninth Circuit. See how often she has voted in favor of the immigrant. I bet you’ll be surprised.”
“And I bet I won’t,” I said. “Whatever the number is, you’ll say it’s too low and I’ll say it’s fine. It’s a stacked deck.”
“Okay, fine, don’t look it up. I was just trying to introduce some data into our argument.”
“I don’t have time for any ‘homework.’ I have an opinion—a majority opinion—to revise. I’ll see you later.”
Still upset at Jeremy, I strode out of the coffee shop. It was only once I was standing outside on Colorado Boulevard that I remembered: I was supposed to have gotten a ride from Jeremy to the courthouse. It was about a 20-minute walk away—not a big deal in New York, but not a distance one would walk in California.
A mile wasn’t too far to journey for my pride. As I walked from downtown to residential Pasadena, I passed one stunning home after another. An elegant Craftsman with an inviting front veranda. A rambling Mediterranean surrounded by almost overgrown gardens. A dignified Georgian with a lawn as large as a lake. The styles of the houses were so varied, yet standing side by the side, they looked perfectly harmonious. No clashing McMansions, at least not in this part of town.
I thought about the people living in these multimillion-dollar homes. This being southern California in the 21st century, they probably came from varied ethnic backgrounds. And despite L.A.’s reputation as an industry town, they probably came from varied professions as well. Neurosurgeons. Investment bankers. Celebrities—again, this being southern California—and the people who love them, including studio executives, producers, agents, and managers. Plus lawyers, of course, from different precincts of the profession, everyone from M&A partners at O’Melveny & Myers to swashbuckling plaintiffs’ lawyers.
What did they all share in common? Wealth. Where did wealth come from? Success. Where did success come from? Ambition.
Where would the world be without ambition? It’s the force that drives us to create, to achieve, and to realize our full potential. Life-saving or life-changing inventions, Fortune 500 companies, and great works of art and literature owe their existence to ambition. My mother left the Philippines and my father’s ancestors left Ireland because of ambition—maybe not the grandest ambition, but ambition nonetheless. America is a nation built by ambition.
Ambition is an acceptable and even appealing attribute for children. If a little girl says she wants to be an astronaut or president—or both, as I did when I was eight years old—that’s endearing. But at a certain point in a person’s life, ambition goes from being desirable to discouraged. To describe someone as “ambitious” becomes an insult rather than a compliment. Ambition turns into a dirty word.
During my elementary school years—when I was an awkward-looking girl, half-Filipino and half-Irish, not at home in either community, with immigrant parents who didn’t have much money, plus a disabled sister—I often felt like I didn’t belong. I took that feeling of not belonging and sublimated it into ambition. My classmates might mock me for having a Tupperware of rice in my lunchbox or a “retard” sister, but I could outscore them on every test.
Things got better as I got older. At Stuyvesant High School in Manhattan, academic achievement was prized, perhaps because we were all nerds, and ambition was perfectly acceptable. Maybe it was due to how many of us were the children of Asian and Eastern European immigrants who had been carried from their impoverished home countries to New York City by ambition. At Harvard College, ambition was once again welcomed—perhaps because Harvard is the kind of school that attracts the openly overachieving, even more s
o than other elite schools.
Things changed when I arrived at Yale Law School. Even though my class at YLS contained aspiring senators and Supreme Court justices, an institutional ethos prevailed in favor of masking ambition. It manifested itself in the bare-bones grading system, in the inflated membership of the Yale Law Journal (about a third of the class belonged), in the classroom discussions (excessive and aggressive participation was frowned upon), and in the way students interacted with professors (careerist sycophancy had to be cast as genuine intellectual curiosity). Maybe that’s why Jeremy and I got along so well: we were less willing or able to hide our ambition than many of our classmates, and we viewed such concealment as an exercise in futility.
So perhaps that’s why I felt so upset and betrayed by Jeremy’s comments about my judge. He seemed to be slipping into the anti-ambition camp that we had both scorned during law school—and, worse yet, his criticisms of Judge Stinson were sexist. An ambitious woman, when she acts forcefully in pursuit of her ambition, gets derided as a “shrew,” or a “bitch,” or a “political hack,” which is what Jeremy called my boss. Meanwhile, a similarly ambitious man gets praised for his “drive” or “determination,” or for having “the courage of his convictions” if he acts in a partisan fashion. That was what Jeremy was saying about his own boss, Judge Gottlieb, who was by any objective measure more of a “political hack” than Judge Stinson: Judge Gottlieb was motivated by his desire “to do justice,” while Justice Stinson was motivated by her desire to sit on the high court. The double standard angered me.
Being ambitious women: what Judge Stinson and I shared in common. Maybe that’s why Judge Stinson and I bonded during the clerkship interview, and why she saw so much of herself in me. I remembered her words to me back then, an observation and a promise and a burden, all at the same time: “There is always somewhere else to go. Always.”
Judge Stinson was right: I had somewhere else to go. And my path was clear: impress Judge Stinson, secure her recommendation for a Supreme Court clerkship, obtain a Supreme Court clerkship, and live happily ever after.