by David Lat
“Thank you, everyone. This will be our last chambers meeting of the year, since I’ll already be in Hawaii next week. I wish you all very happy holidays.”
Christmas fell on a Tuesday, so Christmas Eve fell on a Monday night. James spent the holiday with his family up in the Bay Area, and Amit spent it with an aunt who lived in the Valley. Jeremy and I still weren’t talking, but I knew from Facebook—at least he hadn’t unfriended me—that he was back in Chicago for the holidays.
So I spent Christmas Eve with Harvetta. We both had nowhere else to go. Harvetta’s mother had passed away, and her father was in prison. I couldn’t afford to fly back to New York, especially given how ridiculously steep the holiday season airfares were—which pained me, since I missed my parents and Elizabeth so much.
But Harvetta and I made the most of it. We went to Walmart and bought a miniature artificial tree, just under two feet high, which we decorated with a single strand of white lights and a few candy canes. We roasted a small chicken in the tiny oven of Harvetta’s apartment. And we exchanged gifts.
Harvetta opened my gift first—and seemed to like it, as I suspected she would.
“Damn girl. This is the shit!”
Probably not a typical reaction to receiving a copy of Evan Lee’s Judicial Restraint in America: How the Ageless Wisdom of the Federal Courts Was Invented, but Harvetta was not a typical person.
“And I got you a little somethin’ somethin’,” she said, handing me a small square package. It felt light; I had no idea what it might be. I removed the red wrapping paper, opened the white cardboard box, and fished the object out from under layers of white tissue.
A snow globe. With the U.S. Supreme Court building inside. I shook it, and white flakes rained down on the white marble palace.
“I know how much you wanna clerk there,” she said, “so I thought I’d give you some inspiration.”
“Oh, Harvetta,” I said, choking back a sob, “it’s beautiful.”
I meant what I said. My present might have cost more, but hers was more thoughtful. And I also felt bad not knowing as much about her career aspirations as she knew about mine. When I helped her with her résumé in exchange for her driving lessons, she just said she was looking at “government stuff”—which I guessed to be openings at local district attorneys’ offices, given her interest in working as a prosecutor. Clerking for the Supreme Court was probably not on her radar screen.
“I’m glad you like it,” she said. “Took me forever to find that shit on eBay!”
We laughed and hugged.
“And I got another gift for you too,” Harvetta added, a twinkle in her eye. “But you gotta wait until the new year to open it.”
As the judge predicted, things were slow over the holidays. We would send out draft opinions to other chambers and get nothing back but silence. Judge Stinson probably should have closed up chambers between Christmas and New Year’s, but instead she seemed to revel in how we were working while so many others were not. She would call into chambers at random times, supposedly to ask questions about individual cases, but it felt like she was really just checking in to make sure we were all there (except for Larry, whose Facebook feed showed him enjoying “champagne powder”—whatever that was—out in Aspen). Because of the time difference between Hawaii and California, the judge could keep us in chambers well into the evening simply by calling us right before she had dinner.
Stuck in chambers but with less work to do than usual, I found myself reading legal blogs—SCOTUSblog, devoted to the Supreme Court; How Appealing, focused on appellate litigation; and a number of blogs run by law professors, such as the Volokh Conspiracy and Balkinization. I also started reading a relatively new and strange blog, mentioned to me by Amit, called Beneath Their Robes. The site, launched in November, offered “news, gossip, and colorful commentary about the federal judiciary.” It had a pink and green color scheme and a cheeky, irreverent tone. The author called herself “Article III Groupie”—a reference to Article III of the United States Constitution, the provision establishing the federal courts—and she described herself as an overworked associate at a large law firm with an unhealthy obsession with federal judges. She fixated in particular on the Supreme Court and its clerks, whom she called “The Elect”—a group that she came close to joining, after clerking for a feeder judge and interviewing (unsuccessfully) with some of the justices. She viewed SCOTUS clerks much as I viewed them: superhumanly bright, halfway between man and god.
One post on Beneath Their Robes, looking ahead to the start of President LaFount’s term in January, tackled the subject of Supreme Court vacancies—specifically, which justice might be next to leave the Court. The speculation centered on the liberal Justice Hannah Greenberg, well into her eighties and fighting her third battle with cancer. Even though Justice Greenberg would clearly prefer to step down under a Democratic administration, it seemed doubtful she could remain on the Court for another four years. Some suggested she might even have to step down at the end of the Court’s current term. Another possible retirement was the second-oldest member of the Court, Justice Aidan Keegan, who was pushing 80 and not in the greatest overall health—overweight and a smoker. But since he didn’t have any specific illness and seemed as feisty as ever during oral argument and frequent public appearances, Justice Keegan was viewed as more of a long shot for leaving.
Reading the post reminded me: I still had to finish my homework regarding Judge Stinson’s dossier on herself. Amit snagged the task of examining the judge’s record in the Supreme Court, which was the most interesting part of the project, and James volunteered to look at the judge’s record when she was a trial-court judge, which was the least interesting. That left me with the judge’s Ninth Circuit tenure to review.
Finding the judge’s most conservative opinions wasn’t hard, since she took public pride in them, mentioning them frequently during speaking engagements and media interviews. The challenge came from choosing the highlights: in her relatively short (by federal judge standards) time on the Ninth Circuit, Judge Stinson had already issued major rulings that advanced religious freedom, cut back on excessive protections for the rights of criminal defendants, upheld reasonable regulations on abortion, and protected corporations from overzealous plaintiffs’ lawyers. Making the case for her SCOTUS candidacy to conservatives wouldn’t be hard—and her status as an Asian American woman, and an attractive one at that, wouldn’t hurt.
Locating prominent liberal rulings by Judge Stinson, which she presumably wanted to show she wasn’t a right-wing extremist, presented greater difficulty. She had joined a number of decisions supporting “the little guy”—a criminal defendant against the government, a plaintiff against a multinational company—but many of these rulings were unpublished or written by another judge. I did find one published opinion by Judge Stinson herself that reversed a criminal conviction, which I included in the collection of her “liberal” opinions, but it involved a textbook case of prosecutorial misconduct that even the most law-and-order judge could not condone. On the civil side, I found an opinion written by the judge in a high-profile lawsuit against a major pharmaceutical company, in which she upheld a jury’s $200 million damages award. It wasn’t exactly “liberal”—jury verdicts are entitled to significant deference when reviewed on appeal, and the smart and careful district judge had made no legally erroneous rulings—but it would have to do.
Then it came to me: what about the immigration context? Immigration was a hot-button issue for both the right and the left, with conservatives railing against “illegals” and liberals defending “undocumented immigrants.” Surely I could find some notable opinions from Judge Stinson in her immigration jurisprudence.
I quickly found a good “conservative” opinion to showcase, a published opinion by Judge Stinson rejecting the asylum claim of an immigrant from Mexico. The facts of the case were not particularly interesting—his claim of political persecution seemed dodgy at best, and internal inconsistenc
ies marred his asylum application—but the language in the opinion jumped out at me. Judge Stinson included the requisite expressions of sympathy for the immigrant, who came from a poor family in a part of Mexico torn apart by the drug wars, but went on to discuss how recognizing dubious asylum claims would be unfair to the many law-abiding immigrants who wait patiently, sometimes for years, so they can come to the United States through proper channels.
Then I turned to searching on Westlaw for a “liberal” immigration decision by the judge. I expected to find a ruling in which Judge Stinson, herself the daughter of an immigrant, deployed some fine rhetoric about the United States as a refuge for the persecuted.
Hmm. That didn’t seem right. I tinkered with my search terms and tried again.
How odd. Could I be missing something? I didn’t think so—I view myself as a legal research queen, or at least a duchess—but just in case, I switched to a different database and ran all my queries again.
Strange. Could Westlaw be missing something? I hopped over to Lexis and tried my searches in multiple databases. Zilch.
I couldn’t believe it. In all her time on the Ninth Circuit, Judge Stinson had never ruled in favor of an immigrant, despite hearing literally hundreds of immigration cases. In the few cases where the panel majority voted for the immigrant, the judge dissented. Sometimes she would offer strong reasoning for her dissent, often getting the better of the majority. But in the toughest cases, the ones where the immigrants had seemingly ironclad cases in favor of asylum, she would still dissent from the ruling in favor of the immigrant. In these cases, she provided no real reasoning to support her vote, just a single-sentence mantra: “Based on the exceedingly demanding standard applicable to claims of political asylum, set forth by the Supreme Court in INS v. Elias-Zacarias, 502 U.S. 478 (1992), I respectfully dissent.”
Staring at the stark reality on the computer screen before me, I remembered the “homework” assignment that Jeremy had given me when we met up at Intelligentsia Coffee: to look up Judge Stinson’s past rulings in immigration cases. I was surprised. And concerned. Was Jeremy right? Was my boss—one of the most well-regarded federal judges in the country, a possible nominee to the United States Supreme Court—nothing more than a political hack?
I wasn’t prepared to go that far, but I did feel I owed it to Jeremy to admit when I was wrong. I picked up my iPhone and texted him impulsively, before I had the chance to get second thoughts: “Hey. About that ‘homework’ assignment you gave me … Call me when you get the chance?”
17
January brought with it many things. A new year. A new leader in Washington, President Craig LaFount. A renewal of my communications with Jeremy—we still didn’t agree on everything, but at least we were talking again, after I acknowledged he had a point about my boss’s immigration jurisprudence. And Judge Stinson, back in chambers, sporting an impressive tan. And that wasn’t all, as I learned at our first Monday morning meeting after the break.
“Welcome back,” the judge said. “I hope everyone had lovely holidays. Speaking for myself, I highly recommend the Four Seasons Hualalai as a place to spend Christmas and New Year’s.”
We all laughed at the judge’s joke: the notion that any of us, except for Larry, could possibly afford to stay at the Four Seasons during the most desirable (and expensive) week of the year.
“Before we go through all the cases, I’d like to mention two things. First, I’d like to thank you for working so diligently over the past two weeks. I realize that I’ve been working you much harder than most of my colleagues work their clerks, especially during the holiday season. And I gave you that extra project as well, the comprehensive review of my jurisprudence. I’m not at liberty to explain it fully at this time, but please know that I am aware of, and deeply appreciate, all of your hard work.”
I got the warm pleasing feeling I used to get from scoring a 100 on a spelling quiz in second grade. I loved the approval of authority figures—and the judge knew just how and when to dole it out. All the long nights in chambers in late December and early January suddenly felt worth it.
“Second: what do we make of the California Supreme Court’s ruling in the Geidner case?” asked Judge Stinson.
Whoa—Geidner was back? I had been so immersed in working on a complex trademark opinion that I hadn’t even realized the California high court had issued its ruling on standing—which I hadn’t even had the chance to read. Luckily, Loyola Larry played the stooge so I didn’t have to.
“Is that the gay marriage case that got kicked to the California Supreme Court?” he asked.
“Yes,” said the judge with a patient smile. “The case that we certified to the Supreme Court of California so that they could decide whether the proponents of Prop 8 have the legal standing to defend the initiative in court.”
Suddenly it dawned on me: this was Harvetta’s other holiday “gift” for me, the one that I’d have to “wait until the new year” to open. As a clerk to Justice Sherwin Lin of the California Supreme Court, she would have known that the court was about to issue its opinion. But was this really a gift? I wasn’t so sure.
And neither was Larry: “Wasn’t this the case that you wanted to go away, Judge?”
“When the case first came to the Ninth Circuit, the timing of its arrival struck me as … less than ideal,” she said. “And I had my doubts as to whether the Ninth Circuit, as a federal court, should be resolving what is arguably a matter of state law. But Audrey’s excellent idea of certifying the standing question to the California high court bought us just enough time for the calculus to have changed. And we now have the political cover—er, shall we say guidance—of the California courts. So it now seems to me that the case presents … possible opportunities.”
The judge directed me to work with Brenda and the other judges’ chambers on setting up a date for the oral argument in Geidner. That would be a major event. It might even get televised, as the Ninth Circuit did from time to time for certain high-profile arguments.
After the meeting ended, I went into James’s office for our usual gossip session. I wanted to check my intuitions about some of the judge’s comments against James’s. I thought that I had a slightly sharper legal mind and better writing skills than James, having read some of his bench memos and draft opinions over the course of the clerkship so far, but I felt that he had stronger interpersonal skills and a superior ability to read people and situations.
“So,” I said, closing his office door and sitting down in one of his visitor chairs, “the judge’s super-secret extra project—that has to be about her SCOTUS candidacy, right?”
“Definitely,” James said. “And remember her random trip to D.C. in December, the one that caused us to miss a Monday meeting? My guess is that she was meeting with the LaFount transition team. I was reading in the Washington Post that LaFount is moving very efficiently on possible appointments, even though he hasn’t been inaugurated yet. And even though there’s no vacancy on the Court right now, he probably wants to be ready to move at a moment’s notice, especially given how elderly and ill Justice Greenberg is.”
“That makes sense. But what about the judge’s reference to ‘possible opportunities’ coming out of Geidner? Isn’t a controversial issue like gay marriage just nothing but trouble?”
“Here’s my read. Social conservatives aren’t big fans of LaFount; they didn’t turn out for him in the general election, and he barely won. He probably wants to figure out how he can win their trust and support—both for governing and for the next election—without alienating moderates. One way of doing that is through judicial nominations, especially Supreme Court nominations, which social conservatives follow closely.”
“And so what does that have to do with Geidner coming back to the Ninth Circuit? And with Judge Stinson having to deal with gay marriage? How is that a ‘possible opportunity’ for her?”
“It’s an opportunity for the judge to raise her profile, among social conservatives espec
ially, and to advance her Supreme Court candidacy.
I’m assuming, of course, that she reaches the merits of the case and rules against a constitutional right to gay marriage. That would allow Stinson to cast herself as a principled conservative on the ultra-liberal Ninth Circuit.”
“Ah …”
“Of course, she—or should I say you—would have to write the opinion very carefully. It would have to go against gay marriage as a constitutional matter, not a policy matter, and say that an important issue like this should be decided by the people, not unelected judges. That would be how to win over social conservatives without pissing off supporters of gay marriage too much. If you can pull that off, the judge will owe you—big-time.”
Exactly, I thought to myself. That’s the kind of feat that would get Judge Stinson to recommend me without reservation for a Supreme Court clerkship. Or maybe land me a clerkship with the newly appointed Justice Stinson. Some newly appointed justices take their most favorite law clerks with them from the court of appeals to SCOTUS.
“Sorry we haven’t had the chance to chat much lately,” I said to James. “I’ve just been toiling away on this trademark opinion. How was your trip back to San Francisco over Christmas?”
James looked down at his desk blotter for a second.
“I’ve had better holidays,” he said. “My girlfriend and I finally broke up. We had been heading in that direction over the past few months, but over the break we made it official.”
Ah, so James was straight. And now single. Jeremy might have been right about Judge Stinson’s track record in immigration cases, but I was right about the far more important matter of James being straight. Not all well-dressed, well-groomed, well-mannered men are gay.