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Wednesday, July 11, 2007

More on the Clerkship from Hell
Mike Rappaport

Ilya Somin writes about my post on the Clerkship from Hell over at Volokh, and some of the comments are interesting. Let me make four points in response to the post and the comments. 

First, one commentator appears to suggest that my choice was either to quit or to keep quiet about the clerkship. But why would that be? I chose to remain in the clerkship for a variety of reasons, but mainly because I thought it would help my career. Why should I be forced to bear the costs of quitting in order to reveal truthful information about my clerkship? 

Second, another commentator compares me to Ed Lazarus, who some have argued revealed confidential information about his clerkship. But this is absurd. I did not reveal any confidential information. I merely revealed that several Sloviter clerks did not like the clerkship and that my co-clerk had quit. This is not confidential information, and if it were deemed confidential information, that would represent an abuse of the confidentiality rules. 

Third, I have often wrestled with the question whether I should have revealed this information sooner. On the one hand, the information might have been helpful to others. Conspiracies of silence can be quite harmful. On the other hand, letting sleeping dogs lie is often the best policy. In the end, I only revealed the information after Chambermaid had been published and the author had let it be known it was based on Judge Sloviter.  At that point, it was more than 20 years after the clerkship.  In retrospect, I believe there was a strong argument for revealing the information sooner.   

Finally, Ilya raises the question of how information about judicial tyrants can be publicized. One possibility is simply to list whenever a law clerk quits his or her job. While one or two quits might be innocent, a pattern would be revealing, especially when supplemented with gossip. One Volokh commentator mentions that many clerks resigned from their clerkship with Judge Irving Kaufman of the Second Circuit. At law school, I knew that about Kaufman – everyone did – but I had no knowledge about Sloviter. (Interestingly, my two co-clerks did know that she had a reputation for being a very tough boss, but they took the clerkship anyway, because their wonderful interview with her (mistakenly) convinced them that the reputation was undeserved.) As I remember it, when I started the clerkship in 1985, three Sloviter clerks had quit in the six years she had been a judge. My co-clerk made it 4 in 7 years.

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Mike Rappaport
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Letting sleeping dogs lie is not the best policy when we are examining not an event, but a lifestyle. You experienced what you experienced only because nobody kicked that dog before you.
It is very much part of the nature of such individuals to excert final domination over their victims by making them guilty of complicity by silence. For them, that is the sweetest part of the game, because it is potentially the most dangerous.

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