Nonlawyer Judges
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Friday, February 19, 2010
A Non-Lawyer Law Clerk
The New York Times' obituary page today (always the first thing I read in the Times) carries the obituary of Carl Kaysen, an economics professor and former director of Princeton's Institute for Advanced Study, who also along the way helped negotiate the Limited Test Ban Treaty. An interesting tidbit from the obit is that Kaysen, who did not have a law degree, served as a law clerk to federal District Court Judge Charles Wyzanski, who wanted an economist's advice in an important antitrust case. Not one to waste his time, Kaysen also got a book out of the case.
I'm not sure how many non-law school graduates have served as law clerks, and would love to hear other names if they exist. I'm not sure whether this is good news for law students, since they now need not think of graduating as a prerequisite to the job (although I don't know if the relevant statutes have since changed, and I suspect the failure to graduate would affect one's base salary), or bad news, as judges realize that in a glutted and competitive market for law clerks they can always steal a jump on their colleagues by going outside the law schools altogether. I have long thought that serious originalist judges, who might be slightly hampered by a less than deep knowledge of history, ought to reserve at least one of their spots for a specialist in the relevant periods of American history who is untainted by time in law school, in case the judge accidentally and unintentionally reads history in a presentist and outcome-oriented way; maybe this would be a good time for them to get started.
Posted by Paul Horwitz on February 19, 2010 at 09:50 AM in Paul Horwitz | Permalink
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Comments
Stop giving them ideas.
Posted by: Matthew Reid Krell | Feb 19, 2010 12:45:33 PM
In case you haven't seen, Adrian Vermeule has argued that we need non-lawyer Justices ... http://ssrn.com/abstract=943369
Posted by: Anuj Desai | Feb 20, 2010 6:25:17 AM
I'm aware of one US Ct Apps chief judge who hired a new MPA grad as a "law clerk" to help with judicial administration, particularly the sort of big-picture policy issues that the regular circuit executive's office wouldn't have time to address. After thinking about it, I'm surprised more circuit chiefs don't do this.
Posted by: Justin | Feb 21, 2010 1:30:28 PM
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Government by the Courts, Not the People: Federal Court Thwarts State Budget Cuts
by Thomas Del BeccaroCalifornia has long been the land of fruits and nuts – and now runaway federal courts.
Of course, a long time ago, in a place far, far away, the legislatures of individual States of these United States, had a far greater say in the lives of their citizens. Indeed, for the first 150 years of our existence, the federal government – the Congress and the Courts – had little to say or do in the lives of Americans – the Civil War excluded.
With the advent of the Democrats’ Big Government New Deal, of course, all of that changed. The Roosevelt Democrats increased the federal budget tenfold – but not without the considerable help of a very activist Supreme Court. Recall that Roosevelt threatened to pack the Supreme Court which then proceeded through resignations and reinterpretations to redefine our Constitution. The result was a Big Government takeover the like of which the Supreme Court originally struck down during Roosevelt’s first term.
It also was the dawning of the age of the activist courts which threatens our Liberties to this very day. Thomas Jefferson, of course, warned us of this possibility. According to Jefferson:
The great object of my fear is the federal judiciary. That body, like Gravity, ever acting, with noiseless foot, & unalarming advance, gaining ground step by step, and holding what it gains, is ingulphing insidiuously the special governments [i.e, the states] into the jaws of that which feeds them.
Nowhere could Jefferson’s warning be more true than in California. In 2005, a federal court took over the administration of California’s prison health care system – literally deciding how the system operates. At the time, the federal judge “hailed it as a ‘bold and uncharted adventure’ that could last several years.” Doesn’t that sound like constitutional reasoning to you? And sure enough, he virtually runs the system to this day.
In 2007, a federal judge made a dubious ruling that protects a non-indigenous bait fish – the Delta Smelt – at the expense of the way of life of the entire Central Valley of California. The ruling has turned off the water for many farms, driven unemployment in some areas as high 40% among certain groups and driven up the cost of food for all of us.
Now, on October 20, 2009, a federal judge has “halted the state of California’s plan to cut or reduce caregiver services for 130,000 disabled and low-income seniors.” The cuts were part of an overall solution, however temporary, to the ongoing California budget crisis. In stopping the cuts, the federal court has all but ruled that the state of California cannot reduce expenditures in that area because the federal law may not allow it.
By the logic of this decision, untold billions of the California budget may be exempt from budget cuts. In other and plain words, the California legislature does not have control of its own budget – a federal judge does. Thomas Jefferson simply must be turning over in his grave.
A long time ago, Jefferson wrote that our Independence was founded on the notion of Life, Liberty and the Pursuit of Happiness – Now we know, that is only true until a federal court tells us otherwise.
