So, Judge, When Did You Stop Beating Your Clerks?
posted by Scott Burris
This Spring, Saira Rao, a young New York lawyer and former law clerk to Dolores Sloviter, published a novel called “The Chambermaid.” The novel describes how Sheila Raj, a young New York lawyer, gets through her year as law clerk to “Helga Friedman.” The novel has some fans, but most of the reviews I’ve seen were, shall we say, negative. (How often have you seen a book reviewed as “an abomination”?) Having read it myself, I’m leaning towards the abomination side. Rao writes with a trowel, and most of what she slathers on the page has a provenance in the alimentary process. But each to his own taste… What I really object to in the whole affair is the way Rao and some of her blogging readers have negotiated the delicate question of Judge Friedman’s correspondence with Judge Sloviter, and the rationale offered in several quarters for “outing” mean judicial bosses.
The book purports to be fiction, carrying the standard disclaimer that any resemblance to real people is coincidental. In a Wall Street Journal interview and elsewhere, though, Rao has implied that she might not be as imaginative a novelist as, say Clifford Irving: “I clerked in the Third Circuit and the novel is based in the Third Circuit. People can draw their own conclusions.” And a lot of people, including former Sloviter clerk Mike Rappaport, have drawn the conclusion that Rao has blown the lid off a dirty judicial secret. Before he even read the book, Rappaport took its publication as license to unburden himself of the opinion that it was all too, too true — Sloviter was a witch and he ought really have dumped a bucket of water on her twenty years ago. David Lat, on Above the Law, and Ilya Somin of the Volokh Conspiracy also seemed to take it as given that the book smears Judge Sloviter with the blot juste.
A former Sloviter clerk myself, I had an early order in for the novel and took it with me on vacation. There had been fodder for humor (some of it black) in my clerking year, so I was looking forward to a little wicked fun. I was disappointed. Aside from a couple of tics, Helga Friendman is not a portrait, nor even a recognizable caricature, of Dolores Sloviter. Hell, I didn’t even recognize Rao’s Center City Philadelphia.
And that’s what makes all the nudge-nudge wink-wink so unfair and dishonorable. This book is not about Judge Sloviter except in the most general sense that it portrays a jurist that Sheila Rao does not like. Indeed, if Rao had asserted in print that Dolores Sloviter was a racist boss, a loveless mother or an uncaring wife, only judicial restraint would have saved her from a substantial libel verdict. Yet Rao and, in effect, Rappaport, have implied that, all denials aside, the book really does express the fundamental truth.
This of course puts Judge Sloviter and her friends in an awkward position. What’s she supposed to say? “None of the stuff Saira Rao made up is true?” “That bad judge is not bad the way I’m bad?” (And the problem is the same, if less public, for everyone else who works in the chambers and the court house, for Rao’s mean-spiritedness extends to the intelligence of the marshals and the personal hygiene of the permanent chambers staff.)
Some clerks have argued that it is simply wrong for anyone to clerk and tell. That’s not my argument. As a (long) retired satirist, I am entirely comfortable with the idea that every powerful institution or individual has the inalienable right to be skewered. Judges are powerful public officials and all of them have foibles. The problem with “The Chambermaid” is that the satire is toothless. The book offers no nutritious insights into the defects of our judiciary, and the indiscriminate misanthropy makes Swift look like a Rotarian. This book was not about exposing judicial tyranny, and as James Grimmelmann writes, can easily be inverted to tell the tale of a judge saddled for a year with a vicious narcissist of dubious abilities. Several readers have noted that Rao’s savage indignation is directed most cruelly at herself. As a roman a clef, “The Chambermaid” is less character assassination than character suicide: as my fifteen-year-old daughter put it, “the narrator is a lot bitchier than the judge in that book.” Be that as it may, Saira Rao seems to have written this book because she was angry and because she could. Even if you don’t favor a pinstriped wall of silence around the clerkship, you might want better reasons than that for indiscretion.
Rappaport and Somin, on the other hand, seem to invoke a principled reason for revealing the truth about an unhappy clerkship: the need to defend powerless clerks against all-powerful judicial tyrants. If only more people would out the monsters, law students could evade their clutches. Sounds good, but actually this gets it just exactly wrong. I’m not arguing that law students would take the clerkships anyway, because the job is such a plum. That’s true, but no reason they shouldn’t do it with eyes open. No, I’m arguing that it is the judge, not the clerk, who is the dependent, vulnerable party in the relationship.
Imagine, you hold a position of enormous influence and responsibility. You work with brilliant colleagues who often publicly disagree with you and disassemble your reasoning. You must perform constantly before a critical audience of professionals (not to mention the public) who will scrutinize your every opinion. You have a heavy workload, plus various service responsibilities to the bar, law schools and the community. And every year, you’ve got to completely replace your key staff with kids fresh out of law school. If they are lazy, temperamental, can’t find cases or writes bench-memos in the idiom of the instant message, you are, as those IMers put it, FUBAR.
Admittedly, we law professors do an absolutely stellar job preparing our students for the work, so no doubt lemons are rare. And clearly the culture imposes upon the clerk a mien of deference, obedience and chastity (well, in chambers anyway). And some judges can and do make clerks’ lives unpleasant for no good reason. But the proposition that the clerk is weak and defenseless is, for all that, laughable. Exhibit A against Judge Sloviter is that a number of her clerks have quit. True, but isn’t the power of the terrible boss supposed to be the threat of firing? When have you ever heard of a judge firing a clerk? The clerk’s annual tenure is as iron-clad as the judge’s life term. And thereafter? In all the cases I know of, Sloviter clerks – including those who took early retirement – have gone on to enviable careers. I’ve never heard her trash a one. No, it’s the poor defenseless clerk who is drawing blood on the front page of the Philadelphia Inquirer.
And now, a personal word to Mike Rappaport: Mike, you write that you regret not having warned those following you about how awful your clerkship was. Don’t worry. I interviewed with Judge Sloviter the year you were there, and my last stop of the day was a meeting with the clerks. I still remember your answer when I asked you how you’d enjoyed the year. You didn’t say anything damning, but it was perfectly obvious you’d had a bad time. That was the right way to send the message. I took the job with my eyes open, and had a very rewarding year.