Clerking for Grown-Ups: A Tribute to Judge Ed Carnes

25 Pages Posted: 4 May 2018  

Paul Horwitz

University of Alabama School of Law

Date Written: May 3, 2018

Abstract

This essay is in part a tribute to my former boss, Chief Judge Ed Carnes of the Eleventh Circuit, for whom I clerked in 1998-1999. But it is largely a reflection on clerking and the clerkship culture itself, and the effects of that culture on the wider legal, and legal academic, culture in the United States.

The tributes by former clerks to judges that appear in the pages of law reviews are most likely to celebrate the judge as a heroic figure, and to exalt judges who: 1) cultivate a familial rather than a more formal and mundane relationship with their law clerks; 2) engage in judging as a "mission," seeking to advance particular (generally politically tinged) values in law and viewing other judges or courts as obstacles to that mission; and 3) treat their clerks as junior or even full partners in that mission. Law clerks who find that their clerkship is actually more mundane or workaday in its nature, that their judge does not cultivate a familial relationship with them, and that his or her vision of the judicial job is not "mission"-oriented may find that reality disappointing. Even if these workaday relationships are the norm, they are less likely to fill the law reviews than the romantic and familial vision of clerking. That vision has tremendous visibility and influence in the legal, and legal academic, culture. One reason for this may be that such judges are more likely to select for individuals who are skilled at seeking out, cultivating, and serving powerful mentors, that these clerkships are more likely to culminate in elite positions in the legal profession and academy, and that this process and vision then perpetuates itself.

In this essay, I argue that whatever rewards this romanticized vision offers, it has dangers too. It breeds a sense of lifelong clerkship, in which much of one's career, including a career in legal academia, is spent writing apologia for one's own judge or a particular kind of judge and thinking from the perspective of the judge or law clerk. Even if the work that results from that perspective is excellent, it may be immature. The American clerkship culture is one of hero-worship. It encourages an enduring adolescence and risks a failure to achieve full adulthood and independence. At its worst, it is unhealthy -- for the clerks, for the professionals they become, for the judges themselves, and for the wider legal and legal academic culture. (It may also be true that "familial" clerkships have particular dangers, both for the clerks and for the judges who cultivate such relationships.) For developing a measured, independent, adult perspective on law and judging, there is much to be said for the more unsung clerkship: the clerkship in which the job is "just" a job, not a romantic mission or battle for justice; in which the relationship with one's judge is a "mere" professional employment relationship, not a familial one; and in which one receives a good education in the law but not conscious cultivation as a lifelong ally or acolyte.

Keywords: Judicial Clerkships, Clerking, Clerkship Culture, Legal Academia, Ed Carnes

Suggested Citation

Horwitz, Paul, Clerking for Grown-Ups: A Tribute to Judge Ed Carnes (May 3, 2018). Alabama Law Review, Vol. 69, 2018; U of Alabama Legal Studies Research Paper No. 3172831. Available at SSRN: https://ssrn.com/abstract=3172831

Paul Horwitz (Contact Author)

University of Alabama School of Law ( email )

P.O. Box 870382
Tuscaloosa, AL 35487
United States

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