Supreme Ambitions (11 page)

This occasional slight delay in my processing—I wouldn't call myself slow, just not super-fast—has caused problems for me before. In high school, I took second rather than first place at the national debate championship because a killer rebuttal argument didn't occur to me until after the round was over. In college, I graduated magna rather than summa cum laude after I flubbed an answer during my oral examination that, yet again, occurred to me once the exam was done. Missing out on such honors was a high-class problem, but it embodied for me a larger dilemma: always being an also-ran, never being a winner. Not quite making it to number one, always falling just shy. My chance to cure all of these past failings: winning a Supreme Court clerkship.

Now, feeling energized, wanting to wow Judge Stinson and to prove Jeremy wrong, I started rereading the cases related to
Hamadani
with renewed vigor. Because of how my mind works, when I first read a case, I don't always grasp its full implications immediately. Sometimes a second or third reading will reveal nuances to me that I did not see before.

And that's exactly what happened to me that weekend. Reading one of the Ninth Circuit's major immigration precedents for what felt like the tenth time, I managed to find, buried in a footnote, a somewhat obscure and underutilized line of cases that could possibly be read to support our position, in somewhat indirect fashion.

I grabbed all the cases cited in the footnote from Westlaw; printed them, which is what I did when I needed to read something very closely; and pored over them, highlighting and underlining and annotating as I went. My close review confirmed my initial instinct: there
was
something there, even if it would take some selective quotation and massaging of language in order to work. I wasn't sure the reasoning was entirely persuasive, and I suspected that Jeremy and Judge Gottlieb could come back with a powerful rebuttal. But if Judge Stinson wanted to adhere to her position and not change her vote in
Hamadani
, this argument offered the best hope for doing so.

I opened up the draft opinion on my computer and started the process of responding to the dissent. As I tightened up the opinion and swatted away the points of the dissent, one by one, I found my newly discovered argument more and more persuasive. It was a perfectly colorable contention—and even if it wouldn't persuade Judge Gottlieb, it might be enough to keep Judge Hollingsworth on board.

Immersed in my work, I didn't notice the passage of time. Nor did I notice when Amit entered my office, until he cleared his throat rather loudly. I looked up.

“Hey Coyne,” he said. “You seem to be working rather diligently on something.”

“Yeah, revising the majority opinion in
Hamadani
.”

“You love those immigration cases, don't you?”

I thought I detected a sneer in his tone—but maybe I was imagining it because it was Amit.

“I know you find immigration cases boring,” I said. “But this isn't your run-of-the-mill asylum case. It got covered in the
L.A. Times
. The immigrant is a prominent journalist. And Judge Gottlieb has written a fierce dissent. I could see the case getting reheard en banc.”

“Okay, I get it, it's a big deal,” Amit said, backing up and raising his palms in the air. “What I came over to ask was—do you want to grab dinner? It's past seven already.”

To be honest, I didn't want to dine with Amit; my preferred chambers meal companion was James. But since James wasn't around and I was starving, I agreed. And I was curious: Amit didn't often extend meal invitations, so maybe he had an agenda in suggesting this dinner meeting.

Since there were no restaurants near the courthouse and neither of us drove, we hopped on Seamless.com and ordered delivery from a Thai place. Forty-five minutes later, we were sitting down at the library conference room table with our meals—green curry tofu with brown rice for me, pad thai for Amit.

“So,” said Amit, twirling his noodles around a white plastic fork, “have you noticed anything different about the judge lately?”

I wasn't sure how much I could trust Amit, so I responded guardedly.

“I think she seems … a little stressed out.”

“A
little
stressed out? She's a nervous wreck these days. And a total bitch.”

I was taken aback by Amit's assessment (and language).

“What do you mean by that?” I asked.

“Lately she has been snapping at me for the stupidest things—minor Bluebooking errors, little glitches in formatting, things like that. And she gets really angry about them. It's like it's that time of the month for her. Except it lasts the whole month!”

“I don't think that's fair. She's a demanding boss with high expectations. We have to rise to meet those expectations.”

“She was fine when we first got here—demanding, but reasonable. Now she's unreasonable and ridiculous and temperamental. The other day she yelled at me for not following a ‘see also' citation with a parenthetical—like, really yelled at me, totally flipped out. She was a complete bitch about it.”

“Look, there's no need to be sexist. She's a tough boss who happens to be a woman. You don't have to call her a bitch.”

“This isn't about gender. If a man acted like this, I'd call him a prick. This has nothing do with her being a woman and everything to do with her being a possible Supreme Court nominee.”

“That's James's theory too, that she's on edge because she might be a SCOTUS nominee. I suppose it's possible.”

“You
suppose
it's possible? It's definite. The change in her since the election has been dramatic. At least in how she treats me. Maybe you haven't seen this side of her because you're her favorite law clerk.”

My heart jumped into my throat, almost dislodging a broccoli spear.

“What are you talking about?” I asked. “
You
are her favorite law clerk, by far!”

“Are you kidding me? Whenever she scolds me for something, she always compares me to you. The last time I screwed something up, she said, ‘Amit, you could learn a thing or two from Audrey. She is an excel
lent law clerk who never disappoints me.'”

I put down my plastic fork and started laughing.

“She used the same line with me! When I asked her for more guidance on revising
Hamadani
, she dismissed me by saying that if I had no ideas, ‘Go consult with Amit, he has excellent analytical skills.' I can't believe she's pitting us against each other in this way.”

“I can,” Amit said. “She's a former law firm partner who's now a federal judge. She understands office politics. She knows how to use praise and criticism strategically. And she probably figured that we wouldn't compare notes, since you and James tend to hang together while Larry and I tend to hang together.”

“That makes sense. I can see why she has come as far as she has. She's impressive.”

“But is she truly that impressive?” asked Amit. “Sure, she's a prestigious judge to clerk for. Yes, she's a feeder judge to the Supreme Court. And she might sit on the Supreme Court herself someday. But how involved is she in the details of your cases? How much does she edit the opinions you draft?”

“Not that heavily. Sometimes I get back mem dispos without a single edit. On published opinions, sometimes she has just a handful of edits, most of them just little wording changes—nothing substantive.”

“That's my experience too. My friends who are clerking for other judges have their work edited much more heavily. Sometimes I feel like Stinson is just in it for the prestige—because she likes being addressed as ‘judge,' having letters addressed to her as ‘The Honorable,' and getting sucked up to by lawyers and law students.”

“I think you're going a little far. What about when she's on the bench? People are impressed by how engaged she is during oral argument.”

“Okay, but when you watch her during argument in one of your cases, how many of her questions are ones that you prepared and put into the bench book for her?”

“Hmm … Many of them.”

“For me, practically all of them. She rarely comes up with questions
of her own. It's like she's playing a judge on TV: she's good at delivering her lines, and she looks good while doing it, but she doesn't go off script.”

I finished up the last bite of tofu. My conversation with Amit was enlightening—and I liked him more now, too—but I had to get back to
Hamadani
.

“Well, part of me is glad to hear that she used the ‘excellent law clerk' line on both us,” I said. “It means that she thinks we're both doing solid work, even if we make mistakes sometimes.”

“True,” Amit said. “And she still has the power to make or break our careers, to send us to the Supreme Court—or not. I'm going to keep working my ass off for her.”

“Speaking of which, we should get back to work,” I said, placing my used dinnerware inside the plastic delivery bag and tying it up tightly. “Thanks for suggesting this; it was interesting to compare notes on our boss. And she's still our boss, no matter what we think of her.”

“Yup. Even if the empress has no clothes, she's still the empress.”

I worked late into the night on both Saturday and Sunday to finish revising the
Hamadani
opinion so I could have it on Judge Stinson's desk before that Monday's meeting. But the meeting was canceled because the judge had to take a last-minute trip out of town for some reason that Brenda declined to specify. Based on the printouts of the judge's travel itinerary that Brenda left on her desk, which we looked at one evening after Brenda had left chambers, we learned that the judge had gone to Washington, D.C. She worked remotely while on the East Coast and signed off on my changes to
Hamadani
, which we circulated to Judge Gottlieb and Judge Hollingsworth in the middle of the week. I wondered what Jeremy thought of my revisions, but we hadn't been in touch since our argument at the coffee shop. I wondered if my changes would be sufficient to keep Judge Hollingsworth on board.

It didn't take long for me to find out. The following Monday, shortly before the chambers meeting, an email appeared in my inbox. I could see only the sender, “Judge Hollingsworth,” and the subject line, “
Hamadani
.” It was surely his vote. Would he remain with us, or was the majority opinion I had slaved over for so long about to become a dissent? Or would he remain with the majority but condition his vote on certain edits? That would be less than ideal—having put so much effort into the opinion, I felt proprietary toward it—but at this point I was willing to do pretty much anything to hang on to his vote.

Whoops. The trembling of my fingers caused me to open the wrong
email. While I appreciated the courthouse librarian alerting us to the arrival of a new bankruptcy treatise, I wasn't very interested right now.

I opened the email from Judge Hollingsworth: “I continue to concur in Judge Stinson's very fine opinion.”

“Yes!” I said aloud, making a fist and pounding it against the desk. “Yes, yes, yes!”

“Excited about the new bankruptcy treatise, Coyne?”

James stood in the doorway, smiling, and clean-shaven for Monday morning. I felt the blood rush to my face.

“Sorry, I must have sounded like a total dork. I'm just happy that Judge Hollingsworth signed on to the revised
Hamadani
opinion. And called it ‘very fine' too.”

“Oh, I didn't see that; guess it must have just come in. Congrats!”

“Thanks. I've been worried about that case. Now we can issue it before the holidays. It's a big relief.”

“And it's a big case. I wouldn't be surprised if one of Judge Gottlieb's buddies calls for en banc rehearing.”

I groaned. James was right. This could just be the beginning.

“Sorry,” he said, “I didn't mean to upset you. That's great news. And the judge will be pleased too. It's nice when positive news comes in right before the meeting—it will put the judge in a good mood.”

James was right. Judge Stinson was cheerful and chipper, perhaps because of
Hamadani
or perhaps because Christmas was less than three weeks away. I remembered how great a boss she could be when in a good mood.

After we completed the standard discussion of cases, the judge offered some concluding remarks.

“As we near the end of this calendar year, I'd like to thank all of you for your hard work over these past few months,” she said. “You have truly been a pleasure to work with, and what you have produced has been just outstanding.”

We all smiled. But the judge wasn't done yet.

“Amit, the opinion you drafted in the
Intellectual Ventures
explains
the complex antitrust issues with tremendous clarity. James, the dissent you prepared in
Rivera
is a model of persuasive writing. Audrey, congratulations on
Hamadani
—I don't know if we would have kept Judge Hollingsworth's vote if not for your brilliant revisions. Let's get that opinion finalized and published before he changes his mind!”

Everyone laughed—and I beamed. A federal appellate judge just called my work “brilliant.” If only Jeremy could see me right now.

“And Larry,” the judge continued, “your writing continues to get better and better. The critical work you do on the immigration and habeas memorandum dispositions helps free everyone up to focus on the published opinions.”

Larry grinned, seemingly unaware of the backhanded nature of the compliment.

“Now, as you've no doubt noticed, we are coming up on the holidays. So I wanted to say a little bit about the chambers schedule.”

“Judge,” Larry blurted out, “I should have mentioned earlier, but I'm going to be gone the week of Christmas.”

The judge frowned slightly.

“I realize we haven't talked much about vacation policy,” she said. “You've all been working so hard that I don't think anyone has taken much vacation. But I generally appreciate at least a month's notice before vacation.”

“Judge, my parents and I are going to Aspen. We go every year at this time.”

The judge sighed.

“Yes, that's right,” she said. “Your father mentioned that to me a few weeks ago. That's fine. Amit and Audrey and James, will you all be around?”

The question put us on the spot. We had actually been discussing, amongst ourselves, whether we'd be getting any vacation around Christmas. Brenda suggested to us that in past years the judge had given clerks some time off around the holidays. But now that the judge raised the matter, nobody had anything to say.

Finally, Amit—of course—broke the silence. I wondered if Amit ever tired of always being the one to say yes. I wondered what that kind of relentless sycophancy did to someone on the inside.

“I'm planning to be around, Judge,” he said. James and I quickly joined him in saying we would be present as well. I would have welcomed a few days off, just to catch up on sleep, but it was no great loss; I couldn't afford to fly back to the East Coast (or anywhere else, for that matter). No trip to Aspen for me.

“Excellent. I'm going to be in Hawaii for a few weeks with Robert and the kids, but I will be working remotely. We have a great deal of work to do, and it must be done as carefully as possible. This is not the time for mistakes.”

We all nodded dutifully.

“Of course, things will slow down over the holidays because some of my less industrious colleagues will close their chambers. So I have some additional projects for you to handle during this time. You can divide this up amongst yourselves as you see fit, but I'd like the following on my desk when I return in the new year.”

Amit and James and I picked up our pens and shifted into note-taking mode.

“I'd like to get a retrospective of my time on the bench,” Judge Stinson said. “First, I'd like a look at my time as a trial-court judge. What were my most notable decisions when I was on the district court? How many cases did I decide? How often was I affirmed by the Ninth Circuit, and how often was I reversed?”

Oy. This was going to require a significant amount of work.

“Second, turning to my time here on the Ninth Circuit, what have been the most important opinions I've written? Perhaps pick out ten and write a summary of each—and find my most notable ‘liberal' and ‘conservative' opinions, too. And quantitatively, how many majority opinions have I written, and how many dissents? How many cases total have I been involved in deciding, whether in the majority or in the dissent?

“Finally, I'd like a close look at my track record in the Supreme
Court—which I believe is quite good, but I would like the statistics. How many Ninth Circuit decisions where I was on the three-judge panel have gone up to the Supreme Court? How many have been affirmed, and how many have been reversed? And don't forget my history of writing ‘dissentals,' or dissenting from a denial of rehearing en banc, when the Supreme Court then agrees to hear the case and reverses. They also show how I get vindicated by the Supreme Court when my colleagues here on the Ninth Circuit go down their wayward path.”

The last part of the assignment made everything quite clear: Judge Stinson had her designs on becoming Justice Stinson, and she wanted us to gather all the information needed to make her case to the new administration.

“Thank you, everyone. This will be our last chambers meeting of the year, since I'll already be in Hawaii next week. I wish you all very happy holidays.”

 

Christmas fell on a Tuesday, so Christmas Eve fell on a Monday night. James spent the holiday with his family up in the Bay Area, and Amit spent it with an aunt who lived in the Valley. Jeremy and I still weren't talking, but I knew from Facebook—at least he hadn't unfriended me—that he was back in Chicago for the holidays.

So I spent Christmas Eve with Harvetta. We both had nowhere else to go. Harvetta's mother had passed away, and her father was in prison. I couldn't afford to fly back to New York, especially given how ridiculously steep the holiday season airfares were—which pained me, since I missed my parents and Elizabeth so much.

But Harvetta and I made the most of it. We went to Walmart and bought a miniature artificial tree, just under two feet high, which we decorated with a single strand of white lights and a few candy canes. We roasted a small chicken in the tiny oven of Harvetta's apartment. And we exchanged gifts.

Harvetta opened my gift first—and seemed to like it, as I suspected
she would.

“Damn girl. This is the shit!”

Probably not a typical reaction to receiving a copy of Evan Lee's
Judicial Restraint in America: How the Ageless Wisdom of the Federal Courts Was Invented
, but Harvetta was not a typical person.

“And I got you a little somethin' somethin',” she said, handing me a small square package. It felt light; I had no idea what it might be. I removed the red wrapping paper, opened the white cardboard box, and fished the object out from under layers of white tissue.

A snow globe. With the U.S. Supreme Court building inside. I shook it, and white flakes rained down on the white marble palace.

“I know how much you wanna clerk there,” she said, “so I thought I'd give you some inspiration.”

“Oh, Harvetta,” I said, choking back a sob, “it's beautiful.”

I meant what I said. My present might have cost more, but hers was more thoughtful. And I also felt bad not knowing as much about her career aspirations as she knew about mine. When I helped her with her résumé in exchange for her driving lessons, she just said she was looking at “government stuff”—which I guessed to be openings at local district attorneys' offices, given her interest in working as a prosecutor. Clerking for the Supreme Court was probably not on her radar screen.

“I'm glad you like it,” she said. “Took me forever to find that shit on eBay!”

We laughed and hugged.

“And I got another gift for you too,” Harvetta added, a twinkle in her eye. “But you gotta wait until the new year to open it.”

 

As the judge predicted, things were slow over the holidays. We would send out draft opinions to other chambers and get nothing back but silence. Judge Stinson probably should have closed up chambers between Christmas and New Year's, but instead she seemed to revel in how we were working while so many others were not. She would call into cham
bers at random times, supposedly to ask questions about individual cases, but it felt like she was really just checking in to make sure we were all there (except for Larry, whose Facebook feed showed him enjoying “champagne powder”—whatever that was—out in Aspen). Because of the time difference between Hawaii and California, the judge could keep us in chambers well into the evening simply by calling us right before she had dinner.

Stuck in chambers but with less work to do than usual, I found myself reading legal blogs—SCOTUSblog, devoted to the Supreme Court; How Appealing, focused on appellate litigation; and a number of blogs run by law professors, such as the Volokh Conspiracy and Balkinization. I also started reading a relatively new and strange blog, mentioned to me by Amit, called Beneath Their Robes. The site, launched in November, offered “news, gossip, and colorful commentary about the federal judiciary.” It had a pink and green color scheme and a cheeky, irreverent tone. The author called herself “Article III Groupie”—a reference to Article III of the United States Constitution, the provision establishing the federal courts—and she described herself as an overworked associate at a large law firm with an unhealthy obsession with federal judges. She fixated in particular on the Supreme Court and its clerks, whom she called “The Elect”—a group that she came close to joining, after clerking for a feeder judge and interviewing (unsuccessfully) with some of the justices. She viewed SCOTUS clerks much as I viewed them: superhumanly bright, halfway between man and god.

One post on Beneath Their Robes, looking ahead to the start of President LaFount's term in January, tackled the subject of Supreme Court vacancies—specifically, which justice might be next to leave the Court. The speculation centered on the liberal Justice Hannah Greenberg, well into her eighties and fighting her third battle with cancer. Even though Justice Greenberg would clearly prefer to step down under a Democratic administration, it seemed doubtful she could remain on the Court for another four years. Some suggested she might even have to step down at the end of the Court's current term. Another possible retirement was
the second-oldest member of the Court, Justice Aidan Keegan, who was pushing 80 and not in the greatest overall health—overweight and a smoker. But since he didn't have any specific illness and seemed as feisty as ever during oral argument and frequent public appearances, Justice Keegan was viewed as more of a long shot for leaving.

Reading the post reminded me: I still had to finish my homework regarding Judge Stinson's dossier on herself. Amit snagged the task of examining the judge's record in the Supreme Court, which was the most interesting part of the project, and James volunteered to look at the judge's record when she was a trial-court judge, which was the least interesting. That left me with the judge's Ninth Circuit tenure to review.