“Well, Judge Stinson,” I said, “I don’t know that I’d call a ‘Pass’ a ‘subpar’ grade….”
Yale Law School has a somewhat spare grading system: Honors, Pass, Low Pass, and Fail. My single grade of Pass, on a transcript otherwise filled with Honors, was Business Organizations — “Corporations” at most other schools — with the fast-talking, hard-grading Regina Ranieri.
“Audrey, you’re cute,” said Judge Stinson, smiling. “But don’t get cute with me. You’re in your third year of law school. Have you heard of any of your classmates receiving a Low Pass or Fail?”
“No….”
“I’ve seen dozens of Yale transcripts over the years. How many Low Passes do you think I’ve seen in total?”
“Ten?”
“One,” she said, raising a single, impeccably manicured finger. “I was so amazed, I called the professor. The student was living in San Francisco that semester, working on a startup, and showed up twice — for the first class, and for the exam. And he got a Low Pass, not a Fail.”
I shifted on the couch. I felt the blueberry muffin in the pit of my stomach. I noticed the nails of my right hand digging into a throw pillow.
“So,” said Judge Stinson, sitting back in the club chair, “Why don’t you tell me about your Business Organizations grade?”
I remembered what I had learned while preparing for the Moot Court finals last year: there’s nothing wrong with taking a breath, and a moment to collect your thoughts, before answering a judge’s question. So that’s just what I did.
“Biz Org was actually one of my favorite classes,” I said. “I learned a tremendous amount from Professor Ranieri. My grade on the final resulted mainly from an error I made on a question regarding hedge fund regulation. So this past summer, at Cravath, I sought out a partner who practices a lot in this area, worked on a fund formation with him, and helped him write a law review article. And this semester I’m taking Regulation of Financial Instruments with Professor Ranieri. I’m working very hard, and I hope to redeem myself with a better grade this time around.”
Judge Stinson nodded intently, a hint of a smile playing across her lips. I felt like an Olympic gymnast who had just nailed a landing.
“That’s most admirable, Audrey,” she purred. “I admire people with the ability to recover from adversity.”
It felt odd to have a perfectly fine grade earned in a very challenging class described as “adversity.” But I wasn’t about to argue with Judge Stinson.
Having covered my résumé and transcript, which Judge Stinson set down on one of the end tables, we turned to more substantive matters.
“I am not, shall we say, the typical Ninth Circuit judge,” she said. “I assume you are familiar with my judicial philosophy?”
“Absolutely, Judge Stinson. I think you stand out on the Ninth Circuit for your commitment to judicial restraint, which you’ve set forth very powerfully in your opinions — Grant, for example, where you were ultimately vindicated by the Supreme Court. And your dissent from the denial of rehearing in Upton, which was incredibly persuasive….”
“Audrey, Audrey, you flatter me!” Judge Stinson chuckled. “Please continue.”
I felt the beginnings of a blush in my cheeks — yes, I was being sycophantic — but I wanted this job very badly. And the judge seemed not to object.
“I also admire your academic writing,” I said. “Your Virginia Law Review piece on the role of judges in our constitutional system — it takes the familiar subject of judicial restraint and makes it fresh, infusing it with your practical insights as a sitting judge.”
(I was glad to sneak in that mention of the UVA article. That way Judge Stinson would know that I was reading a coffee table book instead of her law review piece because I had already read the latter.)
“Again, that’s very nice of you. But my own feeling is that it’s not my best work, despite its excellent placement. I prefer my article in the Harvard Journal of Law and Public Policy, about jurisdiction as a limit on judges’ power.”
“That is a great piece, Judge. You take all these great examples of limits on federal courts’ jurisdiction, limits that many on the left love to complain about, and show why they are important to our system of governance.”
(It felt a little strange to me to address her simply as “Judge” — a little too colloquial, like calling her “Coach” — even though the clerkships counselor at Yale said it was fine to address a judge this way in conversation, saving “Your Honor” for the courtroom. But saying “Judge Stinson” repeatedly seemed just as awkward.)
“You’re quite right, Audrey. People tend to see jurisdiction as a series of dry, technical questions. What is the legal basis for jurisdiction? Is it federal question jurisdiction, under section 1331? Is it diversity jurisdiction, under section 1332? Is it supplemental jurisdiction, under section 1367? Was the case filed in the trial court within the statute of limitations? Was the notice of appeal timely filed, to create proper appellate jurisdiction?”
Some might have found this recitation pedantic, but I was impressed by Judge Stinson’s ability to rattle off statutory sections with ease. Some judges, after they’ve been on the bench for a while, become removed from the details of judicial craft. But Judge Stinson struck me as someone still very much in touch with the finer points — and someone from whom I could learn a great deal.
“But limits on the power of judges are an important and valuable thing,” the judge continued. “Don’t get me wrong, I love having power” — here she smiled wide, and I admired her teeth — “but I’m unelected, here for life, and not very accountable to the people. And that’s not necessarily a good thing.”
“Well, Judge Stinson, I wouldn’t mind having you as a benevolent dictator!”
“Ha! Tell that to my husband. Or my kids. I can’t get them to do anything!”
I laughed — and this time it was genuine. I was thoroughly enjoying this part of the interview.
We went back and forth for a few more minutes. Judge Stinson cited Justice Frankfurter’s dissent in West Virginia v. Barnette, arguing that a judge’s personal opinion about the wisdom or evil of a law is irrelevant when he is doing his job on the bench. I cited a Harvard Law Review article by Justice Holmes, in which he famously wrote, “We do not inquire what the legislature meant; we ask only what the statutes mean.” She in turn quoted Chief Justice Marshall from Marbury v. Madison, in which he wrote that “it is emphatically the province and duty of the judicial department to say what the law is” — what it “is,” not “should be.”
It felt like some kind of religious revival, with Judge Stinson and I quoting our favorite passages back and forth to each other, and saying “Amen” each time in response. But instead of citing Bible verses, we were quoting from the greatest hits of judicial restraint, textualism, and related theories.
“Of course, this court isn’t the only battleground in the struggle against judicial activism,” said Judge Stinson. “There are other fronts that are even more major. Tell me this, Audrey: Are you planning to apply for Supreme Court clerkships?”
I was expecting this question, based on the clerkship write-ups of former Stinson clerks in the Yale career services office.
“Oh yes, Judge,” I said. “It would be a dream of mine to clerk for a justice of the Supreme Court.”
“Excellent,” she said. “I encourage — strongly encourage — all of my law clerks to apply to the Court. It reflects well on me as a judge to send my clerks on to the Court. And I like to be thought well of. I like to be a judge who’s going places.”
“You have a lifetime appointment to a federal appeals court! That’s pretty great, you know! Who do you have to impress? Where else is there to go?”
Judge Stinson’s eyebrows arched — and not in a good way. What had I just blurted out?
I couldn’t believe my excited utterance — in a raised voice, fraught with emotion, and without a prefatory “Judge” or “Your Honor.” It was far too casual, if not downright disrespectful, and far from the proper way to address a member of the federal judiciary. What had come over me?
The judge stared right at me. I braced myself for her reprimand.
<—Previously: Chapter 9: Thud
Subsequently—>11: Connection
David, if your goal is good fiction, I think you are too heavy-handed with the banter in this chapter. “Well, Judge Stinson, I wouldn’t mind having you as a benevolent dictator!” What reasonable judge would ever hire someone who said something that cloying in an interview? (Although given the many overt similarities, I half expect your answer to be: “My judge did.”) And the discussion is not just pedantic but also very pedestrian, and that combination just gives it a deeply unrealistic quality. But I said “if your goal is good fiction” because this dialogue has sort of an Ayn Rand quality to it–it feels like writing in order to teach the reader some kind of lesson rather than writing for the reader’s enjoyment.
This is a great comment! A few thoughts:
1. While maybe my ultimate goal is “good” fiction, my immediate goal is just to finish a long-form fiction project (with writing slightly less execrable than “Fifty Shades of Grey”). If, as Malcolm Gladwell claims, we need to spend 10,000 hours practicing something before we become halfway decent at it, then “Supreme Ambitions” constitutes my first few hundred hours. I just happen to be practicing in public rather than private — which allows me to get constructive criticism like yours, which I appreciate.
2. The Ayn Rand comparison intrigues — and actually flatters — me. I don’t know that I have enough natural talent to ever be a writer of “good” (i.e., literary?) fiction, no matter how many thousands of hours I practice.
But I wonder if I might be able to eventually become, like Rand, someone who successfully explores and propounds IDEAS through fiction. Literary purists might say that fiction should not be a vehicle for transmitting ideas in this way – if you want to do that, write philosophy or essays – but there’s no doubt that Rand was very successful in her own way. She got people to actually READ her work — which is, for a writer, one definite measure of success. And her ideas, as conveyed through her fiction, have been very influential.
3. As for people hiring applicants who say cloyingly sycophantic things during interviews, my entire legal and blogging career stands as proof that it happens all the time. Never underestimate a human being’s susceptibility to flattery.
Regarding the use of fiction to propound ideas: I would suggest seeing C.S. Lewis’ remarks on this point (it’s in his essay on children’s literature, collected in the volume “On Stories” – if you google it might come up). He strongly warned against writing with didactic purpose. Everyone notices when we write with didactic purpose, and it’s cloying (as the commenter above noted, this dialogue is cloying). The ultimate rule in writing fiction is this: don’t let the reader remember it’s a story. If they catch the author shaking the puppets about, making them say, “We love judicial restraint!” the reader will be unhappy.
Writers with strong beliefs (Christianity, or, in your case, legal conservatism) usually end up writing books that reflect those beliefs. The beliefs are a guide to our actions and to how we evaluate character, so when we tell stories – especially stories with some sense of struggle and triumph – those beliefs will condition whom we regard as heroes and what sort of conduct we present as heroic. You’re already writing a story in which judicial restraint is a natural subject; but making the characters say things like, “You can be my benevolent dictator any day!” is totally incongruous. It just wakes the reader up and they remember that it’s all an illusion.
tl;dr = If you try to be Ayn Rand it will end badly. Try to tell a good story and your legal conservatism will take care of itself.
Hope this helps.
^^ Concur.
Actually, I’m with David on this one. The dialogue still feels realistic to me; flattery is an important part of the clerkship application process, and it comes fairly naturally and even sincerely to a lot of applicants. And actually, there were so many pieces of this judge-clerk exchange, including the moment with the benevolent-dictator-but-can’t-get-husband-or-kids-to-do-anything, that felt so realistic given my particular clerkship (at the risk of outing myself, my judge shares many demographic categories with Judge Stinson) that I wondered for a moment whether David was writing the character with my judge specifically in mind.