Major setback for religious right

in article b17k40pgq0ursggsh8r5ma4hpt3081j0q8 RemoveThis @4ax.com,
buckeye-ELO RemoveThis @nospam.net at buckeye-ELO RemoveThis @nospam.net wrote on 06 03 2004 11:11:

> "Mr. Thorne" <lyricalreckoner RemoveThis @yahoo.com> wrote:
>
>>
>> :|Time to rethink all this talk about the clerks at the Supreme Court doing
>> :|the work of the justices.
>>
>> :|Big in the news of late are the papers of former Justice Harry Blackmun.
>> :|Last evening, I watched a report on this on the Lehrer News Hour.
>> :|Interviewed were two former clerks for Supreme Court justices.
>>
>> :|They affirm what we all assume to be so: it is the justices who write the
>> :|opinions that they put their names to, and not their clerks. The clerks do
>> :|the research and handle negotiations between the justices, according to the
>> :|report. They don't write opinions.
>>
>> :|If the clerks were doing the research and writing the opinions, then what
>> in
>> :|the world are the justices doing (besides going on hunting trips with their
>> :|favorite defendants)?
>>
>
> I would suggest maybe you get back to me after you have read the portions
> of the book I referred to.
> pages 48-55, 256-62

I can't really dispute what you say. What do I know of what goes on behind
those closed doors? But I find the claim that the clerks write the opinions
a bit hard to swallow.

I can't deny the validity of what the author (mentioned above) has to say.
But I can imagine that he has a vested interest in selling books, and a good
way to do that is to base it on something incredible.

Tell me this: if the clerks are doing all the research and writing the
opinions, how are the justices spending their time. I have it on good
opinion that they spend quite a bit of their time reading (something like
400 pp a day).

And do you really believe that a justice of the court would put his/her name
to something not written by him/her?


>
> I go with the various items cited from or mentioned in those pages as well
> as the reputation and credibility of the late Prof. Bernard Schwartz.
>
> I'll even share this with you from those pages:
>
> In a 1993 New York Times book review of a biography of Justice Oliver
> Wendell Holmes, a Washington lawyer who had been a Supreme Court law clerk
> stressed that, in Holmes's day, the judges "considered it their personal
> duty to explain in writing ... why they reached a particular result." That
> is no longer true. "Not so today. Even highly respected Federal judges
> routinely assign opinion writing to ... law clerks." In the Supreme Court,
> the "clerks spend their time drafting the lengthy decisions that are issued
> in the justices' names."
> A few weeks later, the Times published a letter from another
> lawyer, who had been a fellow law clerk, challenging the reviewer's
> statement as "the hyperbole of an advocate [that] inflates the perceived
> importance of law clerks." Referring to his own experience clerking for a
> justice, the attorney asserted that, "Even if the justice did not write
> every 'and' and 'the,' or turn phrases with Holmes's facility, it was the
> Justice who voted on the cases, the justice who determined the legal theory
> for his vote and for his opinion, and the justice who took the entire
> responsibility for the final opinion he signed." This was also said to have
> been the case with regard to the other Justices.
> The dispute between the two former law clerks brings to mind a
> congratulatory letter that Justice Douglas wrote to justice Rehnquist upon
> Rehnquist's 1971 appointment as a justice. "I realize that you were here
> before as a member of the so-called junior Supreme Court." Douglas was
> referring to Rehnquist s service as a law clerk to justice Robert H.
> Jackson.
> [Page 48]
>
>> > DECISION, How the Supreme Court Decides Cases, By Bernard Schwartz.
>> Oxford
>> > University Press. (1996) pp. 48-55, 256-62
>> >
>> > Professor Bernard Schwartz 1923-1997
>> > http://www.law.utulsa.edu:8080/library/research/schwartz/bio
>> >
>> > *******************************************************
>> > Some of the books published by him:
>> > http://www.fetchbook.co.uk/search_Bernard_Schwartz/searchBy_Author.html
>> >
>> > *****************************************************
>> >
>> > Now to elaborate with some comments from the above pages I mentioned:
>> >
>> > Excerpt # 1
>> > When we talk today about the drafting of Supreme Court opinions, we are
>> > dealing with a subject in which there is a sharp difference between
>> > appearance and reality and one which brings us to the controversial
>> > question of the role of the law clerks in the Court's decision process.
>> > Indeed, the use the justices now make of their law clerks means, as the
>> > Times reviewer put it, that "no one knows what, if anything, the Justices
>> > themselves have written."
>> > [page 48]
>> >
>> > Excerpt # 2
>> > According to justice Brennan, "Tradition has it that Jeremy Bentham once
>> > remarked that law is not made by judge alone but by Judge and Company."
>> If
>> > he were writing about the Supreme Court today, he would surely include
>> law
>> > clerks in the company. The problem is that the company may, all too
>> > frequently, come to dominate the judge.
>> > [page 49]
>> >
>> > Excerpt # 3
>> > The law clerks' role is, however, no longer limited to the writing of
>> > footnotes. When he wrote about the use he made of his law clerks, former
>> > justice Hughes worried that, if the clerks were used too much, "it might
>> be
>> > thought that they were writing our opinions." That, indeed, is what has
>> > happened. In recent years the justices have given their clerks an ever
>> > larger share of responsibility, including even the writing of opinions.
>> > Complaints against the clerks' role have been common, including a
>> > noted 1957 article in U.S. News & World Report by William H. Rehnquist
>> > himself. Rehnquist stated that the justices were delegating substantial
>> > responsibility to their clerks, who "unconsciously" slanted materials to
>> > accord with their own views. . .
>> > [page 50]
>> >
>> > Excerpt # 4
>> > An even harsher view of the clerk system was expressed by Philip B.
>> > Kurland, a leading constitutional scholar, a year after Chief Justice
>> > Rehnquist was appointed. As he noted, the law clerks now exercise a major
>> > role in the two most important functions of the Justices: (1) the
>> screening
>> > of cases to determine which the Court will hear and decide; and (2) the
>> > drafting of opinions.
>> > [page 50]
>> >
>> > Excerpt # 5
>> > While the justices make the final decision on what certiorari petitions
>> to
>> > grant, the work on the petitions is done by the law clerks. In the vast
>> > majority of cases, the Justices' knowledge of the petitions and the
>> issues
>> > they present is based on the clerks' cert memos, and they normally follow
>> > the recommendations in the memos.
>> > [page 51]
>> >
>> > Excerpt # 6
>> > An even more important delegation to the clerks involves the
>> > opinion-writing process itself. "As the years passed," said justice
>> Douglas
>> > in his Autobiography, "it became more evident that the law clerks were
>> > drafting opinions."
>> > [page 51]
>> >
>> > Excerpt # 7
>> > Justice Frankfurter himself characteristically expressed doubts about the
>> > working of the law clerk system. "I wonder," he wrote to justice John
>> > Marshall Harlan in 1957, "how many who are reversing out of hand in these
>> > cases have read the record and not relied merely on the memoranda of
>> their
>> > law clerks.
>> > [page 52]
>> >
>> > Excerpt # 8
>> > Federal appeals judge Richard A. Posner was even more blunt in a 1985
>> boot
>> > "What are these able, intelligent, mostly young people doing? Surely not
>> > merely running citations in Shepard's and shelving the judge's law books.
>> > They are, in many situations, `para-judges.' In some instances, it is to
>> be
>> > feared, they are indeed invisible judges, for there are appellate judges
>> > whose literary style appears to change annually."
>> > [page 52]
>> >
>> > Excerpt # 9
>> > It is, of course, true that the decisions are made by the
>> Justices-though,
>> > even with regard to them, the weaker justices have abdicated much of
>> their
>> > authority to their clerks.
>> > [page 52]
>> >
>> > Excerpt #10
>> > To be sure, the justices themselves go over the drafts, and, said Chief
>> > Justice Rehnquist, "I may revise it in toto." But, he also admits, "I may
>> > leave it relatively unchanged." Too many of the Justices circulate drafts
>> > that are almost wholly the work of their clerks. Some, indeed, do little
>> > more than lend their names to their clerks' product. "These days," a
>> recent
>> > book sums up the situation, "a Court opinion is probably put together by
>> a
>> > clerk, relying mostly on language from earlier opinions.... The clerks
>> > draft most of the majority and dissenting opinions for most of the
>> > justices.
>> > [page 52]
>> > SOURCE: DECISION, How the Supreme Court Decides Cases, By Bernard
>> Schwartz.
>> > Oxford University Press. (1996) pp. 48-55, 256-62
>> >
>> >
>> > There is plenty I didn't include, including the second referenced section
>> > of the book (pages 356-62 which constinues the topic), but the above
>> gives
>> > you the elaboration I promised and should wet your interest if you are
>> > interested to go buy or chck out the book in question from a local
>> library.
>
 >> Stay informed about: Major setback for religious right 

"Mr. Thorne" <lyricalreckoner.DeleteThis@yahoo.com> wrote:

>:|in article b17k40pgq0ursggsh8r5ma4hpt3081j0q8.DeleteThis@4ax.com,
>:|buckeye-ELO@nospam.net at buckeye-ELO.DeleteThis@nospam.net wrote on 06 03 2004 11:11:
>
>> "Mr. Thorne" <lyricalreckoner.DeleteThis@yahoo.com> wrote:
>>
>>>
>>> :|Time to rethink all this talk about the clerks at the Supreme Court doing
>>> :|the work of the justices.
>>>
>>> :|Big in the news of late are the papers of former Justice Harry Blackmun.
>>> :|Last evening, I watched a report on this on the Lehrer News Hour.
>>> :|Interviewed were two former clerks for Supreme Court justices.
>>>
>>> :|They affirm what we all assume to be so: it is the justices who write the
>>> :|opinions that they put their names to, and not their clerks. The clerks do
>>> :|the research and handle negotiations between the justices, according to the
>>> :|report. They don't write opinions.
>>>
>>> :|If the clerks were doing the research and writing the opinions, then what
>>> in
>>> :|the world are the justices doing (besides going on hunting trips with their
>>> :|favorite defendants)?
>>>
>>
>> I would suggest maybe you get back to me after you have read the portions
>> of the book I referred to.
>> pages 48-55, 256-62
>
>I can't really dispute what you say. What do I know of what goes on behind
>:|those closed doors? But I find the claim that the clerks write the opinions
>a bit hard to swallow.

That sounds personal.


>
>I can't deny the validity of what the author (mentioned above) has to say.
>:|But I can imagine that he has a vested interest in selling books, and a good
>:|way to do that is to base it on something incredible.

This is so odd
First of all the man is dead so I imagine he doesn't care a lot about
selling books

Secondly why would you day such about a man who has a highly respected
reputation, whom you appear to know nothing about and who has spent much of
his adult life writing books about the Supreme Court and law etc,
We aren't talking about some nobody or a David Barton here

I don't know who might have spit in your Wheaties but this side of you is
quite different from the side I have been given in the various emails I get
from you from time to time notifying me about your latest Religion in the
news

>
>:|Tell me this: if the clerks are doing all the research and writing the
>:|opinions, how are the justices spending their time. I have it on good
>:|opinion that they spend quite a bit of their time reading (something like
>:|400 pp a day).

Then you can accept that and let it go. it doesn't matter to me. I don't
have any problems with what I read in the Schwartz book.

>:|And do you really believe that a justice of the court would put his/her name
>:|to something not written by him/her?

Sure. Justices of the court appointed the current President. Judges and
justices do all sorts of things.
 >> Stay informed about: Major setback for religious right 

In article <pg3k40tv9qsa7o6oif1pa9hndosov50u1p DeleteThis @4ax.com> buckeye-ELO DeleteThis @nospam.net writes:
<cary DeleteThis @afone.as.arizona.edu (Cary Kittrell) wrote:
<
<
<>:|Ah. Even better than my previous approximation to the situation. Things
<>:|aren't nearly so scary as I initially feared. Thank you.
<
<The following isn't scary? LOL
<
<Here is some of what I was talking about the other day:
<
<This was posted as a reply to another in another thread but it contains the
<info I was talking about that other day:
<
<DECISION, How the Supreme Court Decides Cases, By Bernard Schwartz. Oxford
<University Press. (1996) pp. 48-55, 256-62
<
<Professor Bernard Schwartz 1923-1997
<http://www.law.utulsa.edu:8080/library/research/schwartz/bio
<
<*******************************************************
<Some of the books published by him:
<http://www.fetchbook.co.uk/search_Bernard_Schwartz/searchBy_Author.html
<
<*****************************************************
<
<Now to elaborate with some comments from the above pages I mentioned:
<
<Excerpt # 1
<When we talk today about the drafting of Supreme Court opinions, we are
<dealing with a subject in which there is a sharp difference between
<appearance and reality and one which brings us to the controversial
<question of the role of the law clerks in the Court's decision process.
<Indeed, the use the justices now make of their law clerks means, as the
<Times reviewer put it, that "no one knows what, if anything, the Justices
<themselves have written."
<[page 48]
<
<Excerpt # 2
<According to justice Brennan, "Tradition has it that Jeremy Bentham once
<remarked that law is not made by judge alone but by Judge and Company." If
<he were writing about the Supreme Court today, he would surely include law
<clerks in the company. The problem is that the company may, all too
<frequently, come to dominate the judge.
<[page 49]
<
<Excerpt # 3
<The law clerks' role is, however, no longer limited to the writing of
<footnotes. When he wrote about the use he made of his law clerks, former
<justice Hughes worried that, if the clerks were used too much, "it might be
<thought that they were writing our opinions." That, indeed, is what has
<happened. In recent years the justices have given their clerks an ever
<larger share of responsibility, including even the writing of opinions.
< Complaints against the clerks' role have been common, including a
<noted 1957 article in U.S. News & World Report by William H. Rehnquist
<himself. Rehnquist stated that the justices were delegating substantial
<responsibility to their clerks, who "unconsciously" slanted materials to
<accord with their own views. . .
<[page 50]
<
<Excerpt # 4
<An even harsher view of the clerk system was expressed by Philip B.
<Kurland, a leading constitutional scholar, a year after Chief Justice
<Rehnquist was appointed. As he noted, the law clerks now exercise a major
<role in the two most important functions of the Justices: (1) the screening
<of cases to determine which the Court will hear and decide; and (2) the
<drafting of opinions.
<[page 50]
<
<Excerpt # 5
<While the justices make the final decision on what certiorari petitions to
<grant, the work on the petitions is done by the law clerks. In the vast
<majority of cases, the Justices' knowledge of the petitions and the issues
<they present is based on the clerks' cert memos, and they normally follow
<the recommendations in the memos.
<[page 51]
<
<Excerpt # 6
<An even more important delegation to the clerks involves the
<opinion-writing process itself. "As the years passed," said justice Douglas
<in his Autobiography, "it became more evident that the law clerks were
<drafting opinions."
<[page 51]
<
<Excerpt # 7
<Justice Frankfurter himself characteristically expressed doubts about the
<working of the law clerk system. "I wonder," he wrote to justice John
<Marshall Harlan in 1957, "how many who are reversing out of hand in these
<cases have read the record and not relied merely on the memoranda of their
<law clerks.
<[page 52]
<
<Excerpt # 8
<Federal appeals judge Richard A. Posner was even more blunt in a 1985 boot
<"What are these able, intelligent, mostly young people doing? Surely not
<merely running citations in Shepard's and shelving the judge's law books.
<They are, in many situations, `para-judges.' In some instances, it is to be
<feared, they are indeed invisible judges, for there are appellate judges
<whose literary style appears to change annually."
<[page 52]
<
<Excerpt # 9
<It is, of course, true that the decisions are made by the Justices-though,
<even with regard to them, the weaker justices have abdicated much of their
<authority to their clerks.
<[page 52]
<
<Excerpt #10
<To be sure, the justices themselves go over the drafts, and, said Chief
<Justice Rehnquist, "I may revise it in toto." But, he also admits, "I may
<leave it relatively unchanged." Too many of the Justices circulate drafts
<that are almost wholly the work of their clerks. Some, indeed, do little
<more than lend their names to their clerks' product. "These days," a recent
<book sums up the situation, "a Court opinion is probably put together by a
<clerk, relying mostly on language from earlier opinions.... The clerks
<draft most of the majority and dissenting opinions for most of the
<justices.
<[page 52]
<SOURCE: DECISION, How the Supreme Court Decides Cases, By Bernard Schwartz.
<Oxford University Press. (1996) pp. 48-55, 256-62
<
<
<There is plenty I didn't include, including the second referenced section
<of the book (pages 356-62 which constinues the topic), but the above gives
<you the elaboration I promised and should wet your interest if you are
<interested to go buy or chck out the book in question from a local library.



Yeah, OK, so THAT's scary. Actually, I had been wondering about this
during the course of recent threads, as the role of the clerks was
mentioned time and again.

I think we liberals ought to quit worrying so much about Bush's
potential nominations, and turn our focus to packing the Court
with liberal clerks.


-- cary
 >> Stay informed about: Major setback for religious right 

cary.TakeThisOut@afone.as.arizona.edu (Cary Kittrell) wrote:

>:|Yeah, OK, so THAT's scary. Actually, I had been wondering about this
>:|during the course of recent threads, as the role of the clerks was
>:|mentioned time and again.
>
>I think we liberals ought to quit worrying so much about Bush's
>:|potential nominations, and turn our focus to packing the Court
>:|with liberal clerks.
>


The justices hire the clerks and I imagine they hire those who see things
at least somewhat as they do.
I can't imagine Scalia hiring Barry Lynn as a clerk.
 >> Stay informed about: Major setback for religious right 

On Sat, 6 Mar 2004 13:34:00 -0600, Mr. Thorne wrote
(in message <BC6F6771.14697%lyricalreckoner@yahoo.com>):

> in article b17k40pgq0ursggsh8r5ma4hpt3081j0q8 DeleteThis @4ax.com,
> buckeye-ELO DeleteThis @nospam.net at buckeye-ELO DeleteThis @nospam.net wrote on 06 03 2004 11:11:
>
>> "Mr. Thorne" <lyricalreckoner DeleteThis @yahoo.com> wrote:
>>
>>>>>
>>>>> Time to rethink all this talk about the clerks at the Supreme Court
>>>>> doing
>>>>> the work of the justices.
>>>>>
>>>>> Big in the news of late are the papers of former Justice Harry Blackmun.
>>>>> Last evening, I watched a report on this on the Lehrer News Hour.
>>>>> Interviewed were two former clerks for Supreme Court justices.
>>>>>
>>>>> They affirm what we all assume to be so: it is the justices who write
>>>>> the
>>>>> opinions that they put their names to, and not their clerks. The clerks
>>>>> do
>>>>> the research and handle negotiations between the justices, according to
>>>>> the
>>>>> report. They don't write opinions.
>>>>>
>>>>> If the clerks were doing the research and writing the opinions, then
>>>>> what
>>> in
>>>>> the world are the justices doing (besides going on hunting trips with
>>>>> their
>>>>> favorite defendants)?
>>>>>
>>
>> I would suggest maybe you get back to me after you have read the portions
>> of the book I referred to.
>> pages 48-55, 256-62
>
> I can't really dispute what you say. What do I know of what goes on behind
> those closed doors? But I find the claim that the clerks write the opinions
> a bit hard to swallow.
>
> I can't deny the validity of what the author (mentioned above) has to say.
> But I can imagine that he has a vested interest in selling books, and a good
> way to do that is to base it on something incredible.
>
> Tell me this: if the clerks are doing all the research and writing the
> opinions, how are the justices spending their time. I have it on good
> opinion that they spend quite a bit of their time reading (something like
> 400 pp a day).
>

The Clerk is the Judge's assistant (in 1978, I was living with a law clerk
for a federal judge (pretty low level)) and her duties were the same as the
Clerks for the Supremes.

The Judge assigns the Clerks what s/he wants the Clerk(s) to do. Where they
should start their research and - most often - the general direction in which
to go, while noting any inconsistencies, contradictions or any pertinent
points in those records.

Oftentimes (most of the time), the Clerk writes a summation, //very//
properly bibliographed and on a level appropriate for the "degree/level" of
the case being decided. [This is kinda hard to explain: the "higher" the case
(meaning from "lower" decisions which argue extreme specificities to "higher"
decisions which border on and cross into ConLaw) that specificity and that
level is where the Clerk is sent.]


In other words, from the exact and totally (hopefully) accurate law that
makes the Judge's decision irreversible on error to "interpretation" of the
law using precedent (and, remember, in Mississippi where any change
whatsoever in the state's entire voting procedure is under Dept Justice
sanction, this can get to be a "sticky wicket" at a reasonably low level
(there are other states also subject to the voting approvals).


> And do you really believe that a justice of the court would put his/her name
> to something not written by him/her?
>

The question is invalid (sorry).

--------------------------------------------------------

[This would be a sidebar if one could do a sidebar on UseNet]

To give a plebian example, I used ta write letters for all sorts of technical
things and, at times, I'd do somethin' or anudder that bordered on "policy".

However - no matter what the subject and/or to whom it was going - my
signature block would /never/ be on that letter. The signature block was that
of a SES-4 (senior executive level - four) and my humbleness would be listed
as the "POC" (Point of Contact).

Did the boss' boss' boss' boss give the impression that he had written that
letter? Heck, no. He probably spent about three seconds making sure the but
down the hall wasn't going to get him in trouble (again) before he scrawled
his sig above his sig block.

He didn't /write/ the letter (although, of course, some would come back to me
questioning my parentage, the species of my parents and my ability to tell
the difference between my bush and a hole in the ground and, then, I would,
of course, properly document my bush and a hole in the ground to His
Immensenice's satisfaction).

It appeared over his sig and sig block because

he took responsibility for the contents of that missive.

Sorta like a "SOP" (Standard Operating Procedure). There are zillions of them
and all of them are over some person or officer's name and no one wrote the
whole thing, simply, because there has only been one SOP in history written
and it was in Latin and written by a Buck Centurion whose private parts kept
saying, "Hail, Caesar; Hell, Yes" and the Caesar of the Month kept getting
peeved. [end of this particular war story - 30 -]
--------------------------------------------------------

The decision/opinion is that of the Judge (low or high).

The people who work for the judge had a part in formulating the
decision/opinion. The judge almost certainly uses some of the work that the
judge had assigned to the people who --clerk-- for him/her.

The decision or opinion is of the judge. The judge has assistants who are
paid to assist the judge.

Presidents have speechwriters; that doesn't necessarily mean that the
President (whoever it is at the time) merely voices someone else's words
(except when it was Patrick "The Idiot" Buchanan - now appearing in drag as
Ann Coulter).


Does any of this make sense (heck I need to re-read it to see if it makes
sense to me). After all, it's going to appear over my signature block.


[meaningless scribble]

Gray Shockley
Just Another UseNet Guy
Vicksburg, MS US

>
>>
>> I go with the various items cited from or mentioned in those pages as well
>> as the reputation and credibility of the late Prof. Bernard Schwartz.
>>
>> I'll even share this with you from those pages:
>>
>> In a 1993 New York Times book review of a biography of Justice Oliver
>> Wendell Holmes, a Washington lawyer who had been a Supreme Court law clerk
>> stressed that, in Holmes's day, the judges "considered it their personal
>> duty to explain in writing ... why they reached a particular result." That
>> is no longer true. "Not so today. Even highly respected Federal judges
>> routinely assign opinion writing to ... law clerks." In the Supreme Court,
>> the "clerks spend their time drafting the lengthy decisions that are issued
>> in the justices' names."
>> A few weeks later, the Times published a letter from another
>> lawyer, who had been a fellow law clerk, challenging the reviewer's
>> statement as "the hyperbole of an advocate [that] inflates the perceived
>> importance of law clerks." Referring to his own experience clerking for a
>> justice, the attorney asserted that, "Even if the justice did not write
>> every 'and' and 'the,' or turn phrases with Holmes's facility, it was the
>> Justice who voted on the cases, the justice who determined the legal theory
>> for his vote and for his opinion, and the justice who took the entire
>> responsibility for the final opinion he signed." This was also said to have
>> been the case with regard to the other Justices.
>> The dispute between the two former law clerks brings to mind a
>> congratulatory letter that Justice Douglas wrote to justice Rehnquist upon
>> Rehnquist's 1971 appointment as a justice. "I realize that you were here
>> before as a member of the so-called junior Supreme Court." Douglas was
>> referring to Rehnquist s service as a law clerk to justice Robert H.
>> Jackson.
>> [Page 48]
>>
>>>>>> DECISION, How the Supreme Court Decides Cases, By Bernard Schwartz.
>>> Oxford
>>>>>> University Press. (1996) pp. 48-55, 256-62
>>>>>>
>>>>>> Professor Bernard Schwartz 1923-1997
>>>>>> http://www.law.utulsa.edu:8080/library/research/schwartz/bio
>>>>>>
>>>>>> *******************************************************
>>>>>> Some of the books published by him:
>>>>>> http://www.fetchbook.co.uk/search_Bernard_Schwartz/searchBy_Author.html
>>>>>>
>>>>>> *****************************************************
>>>>>>
>>>>>> Now to elaborate with some comments from the above pages I mentioned:
>>>>>>
>>>>>> Excerpt # 1
>>>>>> When we talk today about the drafting of Supreme Court opinions, we are
>>>>>> dealing with a subject in which there is a sharp difference between
>>>>>> appearance and reality and one which brings us to the controversial
>>>>>> question of the role of the law clerks in the Court's decision process.
>>>>>> Indeed, the use the justices now make of their law clerks means, as the
>>>>>> Times reviewer put it, that "no one knows what, if anything, the
>>>>>> Justices
>>>>>> themselves have written."
>>>>>> [page 48]
>>>>>>
>>>>>> Excerpt # 2
>>>>>> According to justice Brennan, "Tradition has it that Jeremy Bentham
>>>>>> once
>>>>>> remarked that law is not made by judge alone but by Judge and Company."
>>> If
>>>>>> he were writing about the Supreme Court today, he would surely include
>>> law
>>>>>> clerks in the company. The problem is that the company may, all too
>>>>>> frequently, come to dominate the judge.
>>>>>> [page 49]
>>>>>>
>>>>>> Excerpt # 3
>>>>>> The law clerks' role is, however, no longer limited to the writing of
>>>>>> footnotes. When he wrote about the use he made of his law clerks,
>>>>>> former
>>>>>> justice Hughes worried that, if the clerks were used too much, "it
>>>>>> might
>>> be
>>>>>> thought that they were writing our opinions." That, indeed, is what has
>>>>>> happened. In recent years the justices have given their clerks an ever
>>>>>> larger share of responsibility, including even the writing of opinions.
>>>>>> Complaints against the clerks' role have been common, including a
>>>>>> noted 1957 article in U.S. News & World Report by William H. Rehnquist
>>>>>> himself. Rehnquist stated that the justices were delegating substantial
>>>>>> responsibility to their clerks, who "unconsciously" slanted materials
>>>>>> to
>>>>>> accord with their own views. . .
>>>>>> [page 50]
>>>>>>
>>>>>> Excerpt # 4
>>>>>> An even harsher view of the clerk system was expressed by Philip B.
>>>>>> Kurland, a leading constitutional scholar, a year after Chief Justice
>>>>>> Rehnquist was appointed. As he noted, the law clerks now exercise a
>>>>>> major
>>>>>> role in the two most important functions of the Justices: (1) the
>>> screening
>>>>>> of cases to determine which the Court will hear and decide; and (2) the
>>>>>> drafting of opinions.
>>>>>> [page 50]
>>>>>>
>>>>>> Excerpt # 5
>>>>>> While the justices make the final decision on what certiorari petitions
>>> to
>>>>>> grant, the work on the petitions is done by the law clerks. In the vast
>>>>>> majority of cases, the Justices' knowledge of the petitions and the
>>> issues
>>>>>> they present is based on the clerks' cert memos, and they normally
>>>>>> follow
>>>>>> the recommendations in the memos.
>>>>>> [page 51]
>>>>>>
>>>>>> Excerpt # 6
>>>>>> An even more important delegation to the clerks involves the
>>>>>> opinion-writing process itself. "As the years passed," said justice
>>> Douglas
>>>>>> in his Autobiography, "it became more evident that the law clerks were
>>>>>> drafting opinions."
>>>>>> [page 51]
>>>>>>
>>>>>> Excerpt # 7
>>>>>> Justice Frankfurter himself characteristically expressed doubts about
>>>>>> the
>>>>>> working of the law clerk system. "I wonder," he wrote to justice John
>>>>>> Marshall Harlan in 1957, "how many who are reversing out of hand in
>>>>>> these
>>>>>> cases have read the record and not relied merely on the memoranda of
>>> their
>>>>>> law clerks.
>>>>>> [page 52]
>>>>>>
>>>>>> Excerpt # 8
>>>>>> Federal appeals judge Richard A. Posner was even more blunt in a 1985
>>> boot
>>>>>> "What are these able, intelligent, mostly young people doing? Surely
>>>>>> not
>>>>>> merely running citations in Shepard's and shelving the judge's law
>>>>>> books.
>>>>>> They are, in many situations, `para-judges.' In some instances, it is
>>>>>> to
>>> be
>>>>>> feared, they are indeed invisible judges, for there are appellate
>>>>>> judges
>>>>>> whose literary style appears to change annually."
>>>>>> [page 52]
>>>>>>
>>>>>> Excerpt # 9
>>>>>> It is, of course, true that the decisions are made by the
>>> Justices-though,
>>>>>> even with regard to them, the weaker justices have abdicated much of
>>> their
>>>>>> authority to their clerks.
>>>>>> [page 52]
>>>>>>
>>>>>> Excerpt #10
>>>>>> To be sure, the justices themselves go over the drafts, and, said Chief
>>>>>> Justice Rehnquist, "I may revise it in toto." But, he also admits, "I
>>>>>> may
>>>>>> leave it relatively unchanged." Too many of the Justices circulate
>>>>>> drafts
>>>>>> that are almost wholly the work of their clerks. Some, indeed, do
>>>>>> little
>>>>>> more than lend their names to their clerks' product. "These days," a
>>> recent
>>>>>> book sums up the situation, "a Court opinion is probably put together
>>>>>> by
>>> a
>>>>>> clerk, relying mostly on language from earlier opinions.... The clerks
>>>>>> draft most of the majority and dissenting opinions for most of the
>>>>>> justices.
>>>>>> [page 52]
>>>>>> SOURCE: DECISION, How the Supreme Court Decides Cases, By Bernard
>>> Schwartz.
>>>>>> Oxford University Press. (1996) pp. 48-55, 256-62
>>>>>>
>>>>>>
>>>>>> There is plenty I didn't include, including the second referenced
>>>>>> section
>>>>>> of the book (pages 356-62 which constinues the topic), but the above
>>> gives
>>>>>> you the elaboration I promised and should wet your interest if you are
>>>>>> interested to go buy or chck out the book in question from a local
>>> library.
>>
>
 >> Stay informed about: Major setback for religious right 

In article <dkgk40t8gm27bu0h3ccibmf26qunbtrqk4.TakeThisOut@4ax.com> buckeye-ELO.TakeThisOut@nospam.net writes:
<
<cary.TakeThisOut@afone.as.arizona.edu (Cary Kittrell) wrote:
<
<>:|Yeah, OK, so THAT's scary. Actually, I had been wondering about this
<>:|during the course of recent threads, as the role of the clerks was
<>:|mentioned time and again.
<>
<>I think we liberals ought to quit worrying so much about Bush's
<>:|potential nominations, and turn our focus to packing the Court
<>:|with liberal clerks.
<>
<
<
<The justices hire the clerks and I imagine they hire those who see things
<at least somewhat as they do.
<I can't imagine Scalia hiring Barry Lynn as a clerk.

Oh, I know. That's why we gotta be sneaky ("Okay, now whatever
Mr. Thomas asks you in that interview, you just answer `If it
was good enough for President Van Buren, it's good enough
for me'. Got it? Oh, and will you PLEASE ditch the
`Mother Jones' and the Birkenstocks before you go in?")


-- cary
 >> Stay informed about: Major setback for religious right 

In article <c2dn5d$ie3$1@oasis.ccit.arizona.edu>,
Cary Kittrell <cary.TakeThisOut@afone.as.arizona.edu> wrote:
>In article <dkgk40t8gm27bu0h3ccibmf26qunbtrqk4.TakeThisOut@4ax.com> buckeye-ELO.TakeThisOut@nospam.net writes:
><
><cary.TakeThisOut@afone.as.arizona.edu (Cary Kittrell) wrote:
><
><>:|Yeah, OK, so THAT's scary. Actually, I had been wondering about this
><>:|during the course of recent threads, as the role of the clerks was
><>:|mentioned time and again.
><>
><>I think we liberals ought to quit worrying so much about Bush's
><>:|potential nominations, and turn our focus to packing the Court
><>:|with liberal clerks.
><>
><
><
><The justices hire the clerks and I imagine they hire those who see things
><at least somewhat as they do.
><I can't imagine Scalia hiring Barry Lynn as a clerk.
>
>Oh, I know. That's why we gotta be sneaky ("Okay, now whatever
>Mr. Thomas asks you in that interview, you just answer `If it
>was good enough for President Van Buren, it's good enough
>for me'. Got it? Oh, and will you PLEASE ditch the
>`Mother Jones' and the Birkenstocks before you go in?")

Most Justices have "networks" of people who recomment clerks to them:
usually judges on the appeals courts (clerks for Supreme Court
Justices usually have one or two years experience clerking, at least
one on appeals courts), former clerks, and/or Law School professors
they trust. I believe both Justices Scalia and Thomas get theirs
recommended through a conservative Think Tank and some conservative
judges in the lower courts.

--
======================================================================
"It's not denial. I'm just very selective about
what I accept as reality."
--- Calvin ("Calvin and Hobbes")
======================================================================

Arturo Magidin
magidin.TakeThisOut@math.berkeley.edu
 >> Stay informed about: Major setback for religious right