“I have three interviews,” Jeremy said. “First up is Paul Kenote.”
“You applied to a district court judge?”
“I’m willing to make an exception for a Yale Law grad who clerked for the Supreme Court. And who’s a genius — which, of course, Kenote is, as a Yalie who clerked for SCOTUS. And, most importantly, who’s the first openly gay man appointed to the federal bench.”
In addition to serving as an articles editor of the Journal, Jeremy was president of the Yale chapter of OutLaws. He was a cheerleader for all things gay.
“Fair enough,” I said. “Who else are you interviewing with?”
“Sheldon Gottlieb, in Pasadena.”
“Oh nice, congrats — your hero!”
We toasted again. Gottlieb was one of the most powerful judges on the Ninth Circuit, the wily leader of the left on the nation’s most liberal appeals court. He was too old and too liberal to ever be nominated to the Supreme Court, so he could do whatever the heck he wanted — and get away with it, thanks to lifetime tenure for federal judges. Jeremy idolized Sheldon Gottlieb for his outspokenness — on the bench and off, in opinions and in speeches — on behalf of various oppressed groups. But to many others, including myself, Gottlieb was a liberal activist who used the law to achieve goals he couldn’t accomplish through the ballot box. In some of his opinions, he ignored or distorted statutory or constitutional text in order to reach the liberal result.
“And,” said Jeremy, “last but not least, Marta Solís Barzun.”
“Ugh,” I said. “You applied to her? I didn’t know you were a masochist. I don’t know if all the stories are true, but if even half of them are….”
“Yeah, I know, everyone says she’s a raging beeyatch,” said Jeremy. “But she’s a champion for progressive causes. She’s ruled in favor of criminal defendants who have been railroaded, immigrants who are about to be deported, protesters who have been victims of police brutality, when no other judge will stand up for them. She’s going to take up the mantle of Sheldon Gottlieb when he’s gone.”
“Exactly,” I said. “If he’s the Emperor, then she’s Darth Vader.”
“And Barzun is a wise Latina. She’s young enough and ethnic enough to someday get traction as a Supreme Court nominee. She’s wicked smart — a former Supreme Court clerk herself, natch — and I could learn a shitload from working with her. And she’s in San Francisco, which would be fabulous.”
“Well, at least she has the potential to become a feeder judge. A lot of feeders are former Supreme Court clerks themselves, and Judge Barzun clerked for the Court.”
“True. But in terms of feeding, my best bet is probably Gottlieb.”
“Yeah, you’re right. Judge Gottlieb is about at the level of Judge Stinson. Not a top-ten feeder judge, but definitely top 20. You’d have a decent shot at a SCOTUS clerkship coming out of a Gottlieb clerkship, but you’d have to be his best clerk that year. No guarantees — not like clerking for, say, Judge Rosenman, who feeds all his clerks.”
“I would give my left nut for a Rosenman clerkship,” said Jeremy.
Lionel Rosenman, an extremely well-regarded judge on the D.C. Circuit — the nation’s most prestigious and arguably most powerful federal appeals court — was often talked about as a possible SCOTUS nominee under a Democratic president. As a feeder, he was the liberal version of Frank Buttig: if you got a clerkship with Rosenman, your apotheosis was all but guaranteed. The only difference was that Rosenman sent his clerks to liberal justices and Buttig sent his clerks to conservative ones.
“Rosenman is supposed to be challenging to work for,” I said. “Maybe not at the Marta Barzun level, but challenging.”
“Oh, but he’s such an amazing writer. He can make a boring-ass opinion about fucking EPA regulations read like a legal thriller.”
“And, of course, he’s the top liberal feeder judge in the country, by a mile.”
“Yeah, that too,” said Jeremy with a laugh.
I moved some pieces of salad around with my fork, but did not eat any more. I always left about a third of my food on the plate. Some might see this as wasteful. But I liked being a size two, and I had no desire to return to being chubby.
“Well,” I said, “I hope you get a Gottlieb clerkship, and I get a Stinson clerkship. It would be fun to clerk on the Ninth Circuit together.”
“It would! But we’d probably end up working against each other on a lot of cases,” said Jeremy. “Since, you know, you’d be working for the forces of darkness.”
“The forces of darkness? Judge Stinson and her allies just want to interpret the law faithfully, to interpret the law as written. It’s not a matter of pushing an agenda, either from the left or from the right. It’s about the text of the Constitution, the text of the statute, the text of the key cases or precedents. The job of the judge is to apply the law to the facts.”
“Oh, Audrey, you’re so naive! I would have thought that all this time in New Haven, the cradle of legal realism, would have taught you that ‘the law’ isn’t some pure thing floating out there in the ether. What ends up being ‘the law’ is affected by a million things. It’s not just the words on the paper. It’s affected by how the case is argued by the lawyers. It’s affected by how the judges interact with the lawyers, and with each other. And yes, like it or not, it’s affected by the political beliefs and policy preferences of the judges. As the legal realist saying goes, ‘The law depends on what the judge has for breakfast.’”
“Call me naive, but I completely disagree,” I said. “There is such a thing as ‘the law,’ and it’s not just based on the political preferences of the judges. And anyway, if anyone is working for the forces of darkness, it’s your side. I can imagine you and Judge Gottlieb trying to do something crazy, like flinging open the doors to the California prisons to let the poor and misunderstood criminals roam the streets. And when you do, Judge Stinson and I will try and stop you.”
“Two liberal Jewish guys versus two conservative Asian girls,” said Jeremy. “Is that a fair fight? I think you judicial divas would kick our pale white-boy asses.”
“You make us sound like a pair of right-wing dragon ladies! We’re moderates. I’m a ‘conservative’ only here at crazy-liberal Yale, and she’s a ‘conservative’ only on the crazy-liberal Ninth Circuit. Our views are probably where the average American’s are. And, not to be too technical, we’re each half-Asian.”
“Well, I don’t care what you are, I don’t want to mess with either of you,” said Jeremy. “You are two powerful women. You know what you want and how to get it.”
I flashed my best million-dollar smile at him. I have many physical flaws, but I can’t deny that my teeth are gorgeous. And sharp.