At Concurring Opinions (H/T ATL), Professor Hoffman considers the influence law clerks have on Judges.
Although there have been a few studies about the usage, hiring, and quality of law clerks, I haven’t seen work that really convinces me that clerks change judicial performance (rather than match it). That question of influence is pretty important for all kinds of reasons — not least because if law clerks were really influencing their judges, we might want to spend a little bit more time thinking about their roles, ethics, hiring, etc.
Especially with the legal market reeling, “As an organ of the government, the judiciary simply eats better brains when the economy stinks.”
How would this study work?
Eight to ten years from now – in 2018 or thereabouts – we test whether opinions arising from this bumper-clerk period are cited at a higher rate than opinions from the ordinary market periods immediately preceding and following. The hypothesis would be that if clerks influence judges to write better opinions, better clerks will produce to more citable opinions.
Is this true? Are judges so reliant on their clerks that the citability of their opinions is closely linked to the quality of their clerks? I don’t agree with the author’s thesis. Despite the horrible hiring season, the top Circuit Judges (the Kozinski’s and Wilkinson’s of the world) will still hire the top students at Harvard and Yale. The lesser-known Circuit Judges will now be able to select better students than those available in the past. But these lesser-known Judges will still be bound by the influence, originality, and reputation of the Judge. A brilliant clerk can only dress up a Judge’s philosophy so much. Ultimately, all the credit falls to the Judge.
In the comment thread, Volokh Conspirator Orin Kerr parries with Dave Hoffman, and agrees with me. Kind of. More after the jump.
My understanding of the assumed link between judicial citations and the quality of judges (a tenuous link, in my view) is that judges with the best reputations among the judiciary will be cited more often, and the judges with the worst reputations among fellow judges will be cited less often. But no one knows who the clerks are, so that wouldn’t work. Or am I wrong about the theory about why better judges are cited more? That’s certainly possible.
Sure, reputation matters! But it’s my impression that citation studies are based on the idea that reputation results from quality judging: tightly reasoned and clear opinions, produced often. But this is an empirical question that this study could hypothetically answer: if you are right, we wouldn’t see an effect; if I am, we should.
Perhaps when a Judge is first starting out, the quality of his opinions help increase his cite count. But once someone achieves the lofty position of a Kozinksi, his reputation and gravitas carries his opinions further than his super logic or reasoning ever would.