So, Judge, When Did You Stop Beating Your Clerks?

This Spring, Saira Rao, a young New York lawyer and former law clerk to Dolores Sloviter, published a novel called “The Chambermaid.” The novel describes how Sheila Raj, a young New York lawyer, gets through her year as law clerk to “Helga Friedman.” The novel has some fans, but most of the reviews I’ve seen were, shall we say, negative. (How often have you seen a book reviewed as “an abomination”?) Having read it myself, I’m leaning towards the abomination side. Rao writes with a trowel, and most of what she slathers on the page has a provenance in the alimentary process. But each to his own taste… What I really object to in the whole affair is the way Rao and some of her blogging readers have negotiated the delicate question of Judge Friedman’s correspondence with Judge Sloviter, and the rationale offered in several quarters for “outing” mean judicial bosses.

The book purports to be fiction, carrying the standard disclaimer that any resemblance to real people is coincidental. In a Wall Street Journal interview and elsewhere, though, Rao has implied that she might not be as imaginative a novelist as, say Clifford Irving: “I clerked in the Third Circuit and the novel is based in the Third Circuit. People can draw their own conclusions.” And a lot of people, including former Sloviter clerk Mike Rappaport, have drawn the conclusion that Rao has blown the lid off a dirty judicial secret. Before he even read the book, Rappaport took its publication as license to unburden himself of the opinion that it was all too, too true — Sloviter was a witch and he ought really have dumped a bucket of water on her twenty years ago. David Lat, on Above the Law, and Ilya Somin of the Volokh Conspiracy also seemed to take it as given that the book smears Judge Sloviter with the blot juste.

A former Sloviter clerk myself, I had an early order in for the novel and took it with me on vacation. There had been fodder for humor (some of it black) in my clerking year, so I was looking forward to a little wicked fun. I was disappointed. Aside from a couple of tics, Helga Friendman is not a portrait, nor even a recognizable caricature, of Dolores Sloviter. Hell, I didn’t even recognize Rao’s Center City Philadelphia.


And that’s what makes all the nudge-nudge wink-wink so unfair and dishonorable. This book is not about Judge Sloviter except in the most general sense that it portrays a jurist that Sheila Rao does not like. Indeed, if Rao had asserted in print that Dolores Sloviter was a racist boss, a loveless mother or an uncaring wife, only judicial restraint would have saved her from a substantial libel verdict. Yet Rao and, in effect, Rappaport, have implied that, all denials aside, the book really does express the fundamental truth.

This of course puts Judge Sloviter and her friends in an awkward position. What’s she supposed to say? “None of the stuff Saira Rao made up is true?” “That bad judge is not bad the way I’m bad?” (And the problem is the same, if less public, for everyone else who works in the chambers and the court house, for Rao’s mean-spiritedness extends to the intelligence of the marshals and the personal hygiene of the permanent chambers staff.)

Some clerks have argued that it is simply wrong for anyone to clerk and tell. That’s not my argument. As a (long) retired satirist, I am entirely comfortable with the idea that every powerful institution or individual has the inalienable right to be skewered. Judges are powerful public officials and all of them have foibles. The problem with “The Chambermaid” is that the satire is toothless. The book offers no nutritious insights into the defects of our judiciary, and the indiscriminate misanthropy makes Swift look like a Rotarian. This book was not about exposing judicial tyranny, and as James Grimmelmann writes, can easily be inverted to tell the tale of a judge saddled for a year with a vicious narcissist of dubious abilities. Several readers have noted that Rao’s savage indignation is directed most cruelly at herself. As a roman a clef, “The Chambermaid” is less character assassination than character suicide: as my fifteen-year-old daughter put it, “the narrator is a lot bitchier than the judge in that book.” Be that as it may, Saira Rao seems to have written this book because she was angry and because she could. Even if you don’t favor a pinstriped wall of silence around the clerkship, you might want better reasons than that for indiscretion.

Rappaport and Somin, on the other hand, seem to invoke a principled reason for revealing the truth about an unhappy clerkship: the need to defend powerless clerks against all-powerful judicial tyrants. If only more people would out the monsters, law students could evade their clutches. Sounds good, but actually this gets it just exactly wrong. I’m not arguing that law students would take the clerkships anyway, because the job is such a plum. That’s true, but no reason they shouldn’t do it with eyes open. No, I’m arguing that it is the judge, not the clerk, who is the dependent, vulnerable party in the relationship.

Imagine, you hold a position of enormous influence and responsibility. You work with brilliant colleagues who often publicly disagree with you and disassemble your reasoning. You must perform constantly before a critical audience of professionals (not to mention the public) who will scrutinize your every opinion. You have a heavy workload, plus various service responsibilities to the bar, law schools and the community. And every year, you’ve got to completely replace your key staff with kids fresh out of law school. If they are lazy, temperamental, can’t find cases or writes bench-memos in the idiom of the instant message, you are, as those IMers put it, FUBAR.

Admittedly, we law professors do an absolutely stellar job preparing our students for the work, so no doubt lemons are rare. And clearly the culture imposes upon the clerk a mien of deference, obedience and chastity (well, in chambers anyway). And some judges can and do make clerks’ lives unpleasant for no good reason. But the proposition that the clerk is weak and defenseless is, for all that, laughable. Exhibit A against Judge Sloviter is that a number of her clerks have quit. True, but isn’t the power of the terrible boss supposed to be the threat of firing? When have you ever heard of a judge firing a clerk? The clerk’s annual tenure is as iron-clad as the judge’s life term. And thereafter? In all the cases I know of, Sloviter clerks – including those who took early retirement – have gone on to enviable careers. I’ve never heard her trash a one. No, it’s the poor defenseless clerk who is drawing blood on the front page of the Philadelphia Inquirer.

And now, a personal word to Mike Rappaport: Mike, you write that you regret not having warned those following you about how awful your clerkship was. Don’t worry. I interviewed with Judge Sloviter the year you were there, and my last stop of the day was a meeting with the clerks. I still remember your answer when I asked you how you’d enjoyed the year. You didn’t say anything damning, but it was perfectly obvious you’d had a bad time. That was the right way to send the message. I took the job with my eyes open, and had a very rewarding year.

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12 Responses

  1. jps says:

    Although I had heard rumors about this particular judge before Chambermaid which would make me not want that clerkship, to correct a totally false statement: Judges do fire clerks. There are several judges who are known for firing clerks. And those judges should be avoided for firing clerks. And making life hell for a clerk to get them to quit so you dont fire them- just as bad.

  2. Anon says:

    One of my co-clerks was fired, and not for any misconduct. Basically, it was just because the judge didn’t like him.

    And another judge in the circuit also fired a clerk – that one was supposedly for incompetance.

    It happens…

  3. Ann Bartow says:

    Hi Scott,

    I think there is a bit of sexism going on here too. I suspect there are many male judges who are difficult to work for but they are less attractive targets; here there is a certain “woo-hoo, catfight!” undertone to some of the commentary about the book that troubles me. I also wonder if some of Judge Sloviter’s clerks don’t treat her disrespectfully because she is female, which may provoke her to respond in kind. I have a female friend who is a federal judge and an incredibly nice person, who has really pulled back from trying to mentor her clerks because some of them give her so much attitude. She says she has become much meaner on the job than she used to be as a defense mechanism. She feels that too many law students interpret attempted friendliness as weakness and incompetence, two things that no judge wants to be accused of.

    On the firing thing, though: I worked on a case in which a judge issued possibly the stupidest opinion ever in a copyright case, and when we pointed out the stunning mistatements of law in a motion for reconsideration, (which our opponent didn’t even oppose, that’s how stupid the opinion was) he blamed everything on one of his clerks and fired him on the spot. The clerk had probably done a terrible job, but the fact that the judge would sign off on an opinion without making even a passing acquaintance with the pertinent provisions of the Copyright Act was incredible. The (quickly withdrawn) opinion itself actually cited to the Patent Act, but the judge hadn’t even noticed – oh, the humanity!

    regards,

    Ann

  4. Alex says:

    I don’t really get the point of this post. Is it: a) Sloviter isn’t like the “monster” depicted in the book; b) clerks should feel free to write tell-alls about their terrible judges, so long as it’s true; c) the book would have been better if Rao offered “some insight” into the legal system; d) the book would have been better if Rao could actually write; or e) even if Sloviter (or any other judge) is horrible to work for – you have the power to quit, so shut your piehole and go do something else?

    On an aside, you clerked for Sloviter in the mid-80s and Rao sometime in the last few years. Isn’t it possible she’s changed? Isn’t it possible she isn’t the same woman you knew when you clerked for her? And so isn’t it possible that some of the attributes Rao ascribes to her could be in fact true (albeit in an exaggerated form)?

  5. Scott Burris says:

    By weight of anecdote, I stand corrected on my claim about judicial discharges, constructive or otherwise. I overstate the case for judicial vulnerability, but I think Alex’s comment does distill my major points:

    a) True, but I tried not to engage this issue because of the unfair context created by the book (and that’s also why I’ll not address Alex’s concluding point); b) Yes; c) Yes, if one is going to break a custom of discretion the game should be worth the candle; d) Always helps in the literature game; or e) Harsh but true; I’ve seen it done and it has worked out fine for all parties.

    I also want to credit Ann Bartow’s point; we just can’t discount gender in any set of human relations.

  6. Maggie Chon says:

    Like Scott, I clerked for Judge Sloviter in the 80’s (albeit very briefly – not because I was fired) when she became the first female Chief Judge of the Third Circuit. I found her to be extremely fair, rigorous about the law and attentive to the work-life balance of her clerks.

    I never experienced anything even close to a temperamental meltdown in her chambers. To the contrary, birthdays were scrupulously observed with big chocolate chip cookie cakes. And she insisted that her clerks go home at six o’clock, because they had families and/or lives beyond the courthouse: A Radical Idea at the Time. Her “humanistic” office policy stays with me twenty years later as the profession continues to bleeds women when they reach child-bearing years. Twenty years ago, I also observed some dynamics in other judges’ chambers that were what I would call anti-female. I wonder if that has changed in the intervening years. My guess is no, it has not.

    Ok, Alex, so Scott and I are out of date. But I don’t think peoples’ characters change much over time – and I don’t think structural discrimination does much either.

    I have no idea why this female writer would want to be coy about the inspiration for her female judicial character. But based on my experience, the reader should not draw false conclusions.

  7. AYY says:

    “I also want to credit Ann Bartow’s point”

    Uh oh.

    “we just can’t discount gender in any set of human relations.”

    Why not? I suppose you can always try to impose it on something, but that doesn’t mean it’s really there. Don’t know anything about the judge or the author, but from what I’ve read so far, it doesn’t seem like gender has anything to do with it.

  8. anon says:

    From a U.Penn interview which appears at:

    http://www.law.upenn.edu/bll/oralhistory/interviews/transcripts/sloviter.html

    Krieps: And how was your experience as a woman attorney different from what your male colleagues experienced?

    ….

    Sloviter: I mean, I know there were clubs where I couldn’t eat at when I became partner, that I couldn’t eat at. Or there was the Stouffer’s restaurants at that time, ah, had a men’s room in the back, which would serve men who were working much more quickly, and I wasn’t allowed to go in there. Unless, every once in awhile, I would, we would put on a little fuss, and they would let us in. I remember that. So, so that it was a disincentive to invite me along with the group to have lunch, from time to time. I just remembered that. [Laughs.] Things come back.

  9. anon post says:

    ann bartow either never met judge sloviter or always takes the offensive on gender bias. guess what, ann? sloviter is a terrible boss and has been for some time, despite a minority of clerks who got along well with her. have you ever worked in the philadelphia courthouse and seen clerks, both male and female, run crying from her chambers? i have. and that makes her as bad a woman judge as many male judges. gender is not the issue. being a bully is.

  10. anon says:

    Scott, I’m glad you admit that you overstated the case for judicial vulnerability. It was a bit absurd to complain that judges have to replace their clerks every year, and have to do so with people fresh out of law school. To the contrary, judges in every court I’m aware of are free to hire experienced, knowledgable, proven, mature attorneys and employ them for years at a time. Judges caught up in the status-quest of hiring the highest-ranked recent graduates from the highest-ranked law schools can only blame themselves for their “vulnerability” to inexperienced and incompetent clerks.

  11. Carla Johnson says:

    I believe Judge Slovitor is a TREASONIST and guilty of MISPRISON OF TREASON.

    Improperly filed paperwork…

    Judging on the same HABEAS CORPUS case two times and changing her mind without a legal argument or DOCUMENTING IT (PACER)

    Denying and dismissing cases without reason.

    The kicker???

    DENYING HABEAS CORPUS TO US CITIZENS WHICH UNDER THE LAW and Constituion IS TREASON!!

    Anyone would like a copy of these orders…

    Did I mention that there was also a two fold rulings in the same court OUT OF HER JURISDICTION?? Can a 3rd Circut Judge rule in a case where there had been no previous proceedings or docketing in The Lower District Court??

    The answer is NO!

    In 2001 Chief Justice Becker placed a percuriam order (in PACER), that stated he could not rule in the same HABEAS CORPUS CASE case for lack or jurisdiction because the lower court had NOT docketed any proceedings from their Habeas Actions. Becker ordered them to docket.

    NOTHING was docketed and Slovitor then took over the HABEAS CORPUS AFTER BECKER AND Judge Newcomber DIED- District Court Judge, WITHOUT JURISDICTION and DENIED IT.

    And Just recently did it AGAIN…. SAME CASE! in 2007.

    Feel free to email me or you can recieve a fax of these orders, Beckers, Slovitors (two of them) and read them in a common sense manner.

    It will be CLEAR.

    MANY and MOST are AFRAID of what the WHOLE truth will do to them so they tell a HALF one in this book.

    Fair to the CLERKS is one thing. How about fair to the Citizens under the law which was wrtitten and bound to protect them.

    jftrust@comcast.net

    signed an average citizen that had to educate herself on the law because idiot law clerks that dont want to tell the real story (Rao) and are just as heartless as the Judge (s) (Slovitor) themselves.

    WHO WILL JUDGE THE JUDGES???

    Lets look at REAL (or mock illegally mailed by the court), DOCUMENTS that can be looked at and compared for the REAL fun to begin!

  12. hhh says:

    I read chambermaid and it was horrible. The judge doesn’t need to be embarrassed about this one, the author does.