“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?”
“I’ve seen dozens of Yale transcripts over the years. How many Low Passes do you think I’ve seen in total?”
“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.