Supreme Ambitions (13 page)

As expected, an ally of Judge Gottlieb called for rehearing en banc in
Hamadani
. Judge Marta Solís Deleuze, Judge Stinson's archenemy on the Ninth Circuit, disagreed with the decision and wanted the case to be reconsidered by a larger panel of 11 judges—an en banc court, consisting of Chief Judge Runyan and ten randomly selected judges. Judge Deleuze issued a “call memo” in support of her request for reconsideration.

And it was no ordinary call memo. It was a muscular document, full of vigorous prose, explaining why Judge Stinson's opinion in
Hamadani
was wrong on the facts, wrong on the law, and inconsistent with Ninth Circuit precedent—in short, an embarrassment to the court. The powerful intellect of Judge Deleuze was on full display.

I read through the
Hamadani
call memo three times, each time making me more dizzy than the last. Was I overreacting? Since I had put so much effort into
Hamadani
, Judge Deleuze's harsh criticism felt personal to me. I called up Jeremy for a second opinion.

“Have you read Judge Deleuze's call memo?” I asked.

“Of course! Everyone's talking about it.”

“It's a good memo, right?”

“Yeah, and Alinea is a good restaurant.”

“Come again?” My familiarity with the world of fine dining was limited to the places Cravath had taken me to as a summer associate.

“It's not just a good memo,” Jeremy said. “It's an
amazing
memo. An
intergalactic
memo.”

“Ha, well, let's not get carried away. Of course you like it. It's very liberal.”

“I'd say this even if I disagreed with its conclusions. Audrey, seriously, it's a fucking great memo. Powerful. Persuasive. The best thing I've seen so far this year.”

“Really?”

“Yeah, really. I told you Deleuze was brilliant. I told you about my clerkship interview with her, right? She digested my 30-page writing sample in a matter of minutes, then started asking me incredibly incisive questions about it—better than the ones my faculty adviser posed to me. The woman's a genius.”

“I have to run. I need to figure out how to respond.”

“Respond? Why bother? You and Stinson are toast.”

I thanked Jeremy for his candor and hung up. I needed to go talk to Judge Stinson. But I didn't want to get scolded again for bothering her with “trivialities.” I decided to approach the judge casually and not in a way suggesting I wanted advice on how to respond to the call memo.

The door to the judge's office was halfway shut. I knocked, softly, and she called out for me to enter.

“Hello, Audrey,” she said cheerily from behind her desk. “Please sit down.”

I seated myself in one of her visitor's chairs. The judge was wearing a lilac suit—a little flashy, but perfectly tailored—and still had her tan from Hawaii.

“Judge, have you seen Judge Deleuze's call memo in
Hamadani
?”

“Ah, yes, that just came in. It's no surprise. Given the strength of Judge Gottlieb's dissent, I expected one of his allies to call for rehearing en banc. And Judge Solís Deleuze—she's the daughter of immigrants herself, from Mexico, I believe—has a soft spot for immigration petitioners. She's never met an asylum claim that she didn't like!”

I chuckled and nodded.

“Judge, have you had a chance to look at the memo?”

“Yes. It's a well-done memo. Judge Deleuze and I are not the closest of
friends—let's just say she's no Miss Congeniality—but I don't deny her brilliance.”

“Are you … concerned that we'll lose the en banc vote? Not because we aren't right—we are, of course—but this is the Ninth Circuit, after all, which historically has been very sympathetic to asylum claims. I'll certainly do the best I can in drafting a response to the call memo that explains why we're right on the law …”

“We will soon enter the en banc voting process—emphasis on the word ‘voting.' It's not about law; it's about politics. And it's about the numbers. What was Justice Brennan's famous saying about votes at the Supreme Court?”

“Something like, ‘Five votes can do anything around here.'”

“The same holds true with Ninth Circuit en banc voting. There are 29 active judges, and you need a majority vote from them to go en banc—so with 15 votes, you can do anything around here. What was the last immigration case that went en banc?”

“I believe that would be
Bitong
, Judge.”

“That was a close vote. Let me pull up the tally.”

The judge swiveled around in her chair to her computer, found the
Bitong
tally, printed it out on her desktop printer, and handed it to me.

“Take a look.
Bitong
got exactly 15 votes. The
Hamadani
vote should be similar. So we just need to take one or two ‘yes' votes and move them to the ‘no' or abstention columns. Based on what you know of their overall jurisprudence and their views on immigration cases in particular, who of the ‘yes' votes from
Bitong
do you see as most persuadable on
Hamadani
?”

I scanned the list. Even though I wasn't even at the halfway mark for the one-year clerkship, I already felt I knew these judges and their views reasonably well. I zeroed in on two: Judge Dennis O'Sullivan, a highly regarded Republican appointee with chambers in Portland, and Judge Robyn Hagan, a conservative Democratic appointee down in San Diego.

“I would say … Judge O'Sullivan and Judge Hagan.”

“Excellent. Those are names I can work with.”

Judge Stinson picked up the phone. “Brenda, get me Judge O'Sullivan on the phone, please.”

I started to stand up, to give Judge Stinson privacy for the call, but she gestured for me to remain seated.

“Dennis, how
are
you? It's Christina Stinson … Excellent, thank you. How were your holidays? Did you and Melinda go skiing at Sunriver again? … Yes, Robert and I and the kids were in Hawaii, as usual … It
is
exciting about President LaFount, isn't it? Perhaps he can shift this court a little more in our direction over the next few years … So, on that note—as you may have seen, Marta has called for an en banc in
Hamadani
, one of my immigration cases. And last week, she called for an en banc in
Grimaldi
, one of your habeas cases. I honestly can't fathom it, since your opinion in
Grimaldi
is just superb … Well, thank you, that's very kind of you to say.
Hamadani
is a tough case, as is
Grimaldi
, but I don't think either merits rehearing en banc—at this point, I say let's leave it to the folks upstairs … Excellent. I'm glad we see eye to eye on this. I have to run now, but I look forward to seeing you at the en banc hearing in San Francisco in a few weeks. Regards to Melinda!”

Judge Stinson put down the phone, smiled, and picked up the phone again.

“Brenda, please connect with me with Judge Hagan … Robyn, how
are
you? It's Christina Stinson … Yes, just lovely—Robert and I took the kids to Hawaii again. And were you and Jonathan in Cabo? … Wonderful. Now, I know it's only January, but I just wanted to call to remind you to ‘save the date' for our Oscars party, if you'd be free then … Yes, just like last year—we do it on the Friday night before because so many of Robert's clients have to, you know, actually
go
to the Oscars! … Great, so glad you can make it—I know it's a bit of a schlep for you to come up here from San Diego, but you're of course welcome to stay overnight in our guest house if you like. Oh, one other thing—as you may have just seen, Marta has called for an en banc in
Hamadani
… Yes, that's the case, it was covered in the
L.A. Times
, although I think the article got some things wrong … It's a difficult case, yes, but I think if you look closely
at the opinion, you'll see that it's not worth revisiting en banc—it's just a difficult case that reasonable minds can disagree about … Yes, I think that would be a sound approach—abstention. I certainly know I abstain from voting in favor of en banc unless I'm 100 percent certain the panel got it very, very wrong … Lovely. Well, I look forward to seeing you and Jon at our party in a few weeks!”

Judge Stinson hung up the phone and flashed a big grin at me.

“I'm certain your response to Judge Deleuze's call memo will be excellent, but rest assured that
Hamadani
is not going en banc. We should put our best effort into the legal arguments, but allow me to paraphrase Carl von Clausewitz: law is just politics by other means.”

I laughed at the judge's witticism—but when she met my laughter with a serious look, I quickly stopped.

“Sorry, Judge, I just thought that was a great description of how things work. And you did such an amazing job of talking to Judge O'Sullivan and Judge Hagan.”

“Thank you for noticing. Some people naively think that being a good appellate judge is all about legal analysis, but that's so far from the truth. Yes, you need a decent legal mind, but that's necessary rather than sufficient. You need to be a good manager, so you can make the most of your chambers staff. You need to be a shrewd politician, so you can deal with your colleagues. For me, coming up through the ranks at Gibson Dunn, and then overseeing associates and staff while I was a partner, was excellent preparation for being a judge. Now I'm essentially running a small law firm—this chambers. This is why those of us who came to the bench from high positions in private practice or government are such better judges than the former law professors, whose ‘management' experience consists of supervising a research assistant or two.”

I nodded enthusiastically. I always enjoyed when Judge Stinson would take the time to offer career advice or share her insights into her work as a judge.

“Speaking of politics,” she said, “let's discuss
Geidner
for a moment.”

Uh-oh. I hadn't had the chance to dig into the case since it came back
from the California Supreme Court.

“I'm sorry, Judge, I've been so busy with other cases that I haven't had the chance to focus on
Geidner
. I haven't delved into the record or read all the cases yet …”

“Oh, don't worry, let me just give you some guidance for when you turn to writing the bench memo. By the way, you should order the full record, the complete original case file, from the district court. It will make things much easier for you as you work on the case. And in a case of this importance, we need to make sure that everything is perfect.”

“Yes,” I said, jotting down a reminder to myself to order the record.

“In terms of my guidance: your bench memorandum should recommend reversing the district court and upholding the ban on gay marriage as constitutional.”

I reflexively started to write this down but stopped mid-sentence. Judge Stinson had never before told me, in advance of my writing a bench memo, what my recommendation in a case should be. To the contrary, she seemed interested in getting her clerks' honest take on each matter. What was I missing?

“But Judge,” I said, “I haven't had the chance to review the case yet. I mean, it does sound like Judge Nathanson might have gone a bit far, in terms of striking down a ballot proposition supported by millions of Californians. But perhaps I should take a look at the record and do some research into the case law, and then maybe we can discuss …”

“Audrey, you are normally highly perceptive, but I fear you are not understanding me here. Your bench memo
will
recommend reversing Judge Nathanson and upholding Proposition 8. And I will review it personally before you circulate it to the other judges on the panel.”

I paused, unsure of what to say next. Being told what to write in a bench memo had me feeling uncomfortable.

“Well, I always try to give you and the other judges my most carefully researched work product and my most candid recommendation in each case. And so I do want to be sure to present all sides of the argument when sending out a bench memo that goes out under my name.”

Here Judge Stinson paused, picking up a pen and touching its tip to her perfectly glossy lips.

“You have a point. I do not know whether you intended to do so, but you have raised an important issue.”

“I have?”

“I do not want the
Geidner
bench memorandum to be received like an ordinary bench memo, sent out by a law clerk in the ordinary course of business, under the law clerk's own name and representing only the law clerk's view. I would like the two other judges on the panel to know that it reflects
my
view of
Geidner
—that I have reviewed the memo and that I agree with its conclusion.”

“So how should we proceed?”

“Here is what we'll do. When the
Geidner
bench memo goes out, send it out from the ‘Judge Stinson' chambers account, not your personal account. In the memo itself, the ‘From' line should read ‘Chambers of Judge Stinson' instead of your name. But your other bench memos for this calendar should go out from your personal email account and under your own name. That way there will be no mistaking that this bench memo bears my personal seal of approval.”

“Thank you, Judge. I will let you know when my draft memo is ready for your review.”

As I left Judge Stinson's office, I felt a sense of relief. I liked Judge Stinson's solution. Having the memo come from the “Chambers of Judge Stinson” rather than “Audrey Coyne” would make clear to everyone that I was merely following orders from my boss.

And that was totally acceptable, given that the judge-clerk relationship is no ordinary boss-subordinate relationship. Even though law clerks are generally intelligent and well educated, we have less of an independent professional identity than even middle managers at a large corporation. Our incorporation into our bosses' professional identities is more complete; we might be able to (gently and gingerly) disagree with our judges privately, in chambers, but to the outside world, we get subsumed under our bosses. Opinions get issued by the judge, not by the
clerk who drafted them, even if the judge wrote just a handful of the sentences contained therein (often the case with Judge Stinson, a very light editor—especially when she didn't care much about the subject matter at hand). Clerks are like research assistants to a professor—but at least research assistants get thanked in a footnote or the acknowledgments, while clerks don't get any credit, disappearing into the background so that our boss can get all the glory.