The Associate

By Legal Eagle

The former High Court Justice Michael Kirby wrote a piece in The Australian the other day about the role of the judges’ associate. For the non-lawyer, a judge has one or two legally trained assistants to help him or her – these are called associates or clerks. Kirby described the job thusly:

Long hours, a deal of tedium, lots of washing up and boring administrative tasks fill the average day. Yet court cases are sometimes important and occasionally dramatic. The judge does not have many people with whom to discuss the raw emotions and important choices that have to be made, save for the associates. It is necessarily a very personal relationship between the old and young, the worldly wise and the up-and-coming novice.

I worked in the Court system for a number of years as a researcher and associate for various judges in both appeal and trial divisions. It was a tremendously rewarding job. I know it’s fashionable to castigate judges for being out of touch or unfair, but the judges with whom I worked with took their jobs very seriously, worked long hours, and tried their best to make fair decisions. I cannot emphasise how much I learned from my experience working in the Court.

Working as an associate is a very personal relationship, as Michael Kirby says. The judge cannot talk about the case with anyone else other than court staff. You “live” the cases with the judge – you see all the evidence and the submissions of counsel (or just the latter if you are in an appellate court), you read all the material, do the extra research and proofread the judgments. It’s a “judge’s eye view”, as it were. When I finished working for “my judge”, I found going back to work as a solicitor to be a very big culture shock.

I liked the fact that Kirby used to advertise for the position of associate. The rejection letter he wrote to unsuccessful applicants was a study in how rejection letters should be – not crushing, but encouraging. His account of how he hadn’t got articles despite having good grades was incredibly valuable to me, because I was in that position for some time myself. If it happened to a High Court judge, no shame to me. And his own honesty has emboldened me to be honest with my students on the matter, so that they do not despair if they find themselves in that position.

One thing I want to look at is the beginning of Michael Kirby’s piece:

William Rehnquist served on the Supreme Court of the United States for 35 years.

He was an agreeable gentleman, but although he had four clerks each year to help him with his work, he never once appointed a black person to the post.

This fact was noticed in the media. Yet to his death in 2005, Rehnquist never changed his ways.

I could only wonder what Rehnquist’s background and biases were. Of course, one need only consult the redoubtable Wikipedia entry. Rehnquist was a very conservative jurist throughout his time on the bench. As Kirby notes, Rehnquist was widely liked on a personal basis by his co-judges, even those who were polar opposites on an ideological spectrum. However, I learned that there had been some controversy arising from a memorandum written by Rehnquist when he was associate to Justice Robert H Jackson of the US Supreme Court:

There, he wrote a memorandum arguing against federal-court-ordered school desegregation while the court was considering the landmark case of Brown v. Board of Education, which was later decided in 1954. Rehnquist’s 1952 memo, entitled “A Random Thought on the Segregation Cases”, defended the separate-but-equal doctrine. In that memo, Rehnquist said:

I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by “liberal” colleagues but I think Plessy v. Ferguson was right and should be reaffirmed…. To the argument … that a majority may not deprive a minority of its constitutional right, the answer must be made that while this is sound in theory, in the long run it is the majority who will determine what the constitutional rights of the minority are.

This had been raised at the hearings into Rehnquist’s appointment to the Court as an Associate Justice and as a Chief Justice. He distanced himself from the views expressed in the memorandum.

Then I was wondering; in light of the controversy reported above, should Rehnquist have hired an African American associate? Over 35 years on the bench, he would have hired 140 or so associates. It does seem extraordinarily unlikely that there would not be one appropriate African American candidate. But then I thought that perhaps I should give the judge the benefit of the doubt; perhaps he just never met an African American candidate with whom he “clicked”.

Should someone like Rehnquist be forced to hire minorities by peer pressure? On the one hand, sometimes when you are forced into a circumstance where you have to work with someone very different to yourself, you can find that there are commonalities and bonds which you didn’t realise were there before. It can sometimes work well. On the other hand, as my co-blogger is fond of saying, you can’t force people to like one another. And, as I’ve said above, the role of associate is a very personal one; it is important that the judge and his or her associate get along.

It seems to me that it is preferable for a judge to hire associates from a variety of backgrounds, because one of the jobs of the associate is to provide a different point of view, and to look at things in a different way. But I’d be concerned about an approach where an associate was hired in part to represent a particular disadvantaged group in society. The important thing is that the associate has the skills for the job, and has the ability to get along with the judge in question. If the associate does not have those things, then my feeling is that neither the associate nor the judge will get much out of the relationship.

However, when it works, the relationship between judge and associate can be absolutely fantastic. I still regard my time as a judge’s associate as one of my most valuable working experiences.

(Hat tip to Oanh at Unique Schmuck)

13 Comments

  1. Jacques Chester
    Posted April 4, 2009 at 4:31 pm | Permalink

    It would seem to me that no one standard could sensibly apply. Each judge needs to decide for him or herself what criteria they would apply. Some will see associateships as a way to uplift the disadvantaged. Others will see it as a way to get cheap assistants. Others might see it as a way to keep in touch with current culture.

    What makes it strong is the diversity of method. This is why the highest courts are always multi-judged. It reduces the probability of error because of the diversity of views helps tease out important subtleties.

    As it happens I am just now working on a project involving the “delphi wideband” method of estimation. It can improve software size estimates by 40% on average (according to McConnell) and improves 2/3rds of estimates overall. And essentially it boils down to something very similar to High Court / Supreme Court practice: each estimator works alone, then compares notes and discuss the legal issues amongst themselves. Then they hand down a final decision, with majority result. Judges having their own ways of choosing associates is just one more form of useful expert diversity.

    The main difference is that Delphi requires consensus — if any estimators disagree, they must continue discussing and re-estimating until they all vote to accept a consensus estimate. I don’t see this working for legal matters.

    The point I’m making is that what we have now works. I would be extremely wary of tinkering or trying to impose standards.

  2. Jacques Chester
    Posted April 4, 2009 at 4:43 pm | Permalink

    Actually, people like judges, legal drafters etc could really benefit from some software engineering quality approaches. Formal (Fagan) inspections, pair programming (pair drafting?), checklists etc might pay off pretty well, I reckon.

  3. Posted April 4, 2009 at 6:02 pm | Permalink

    The main difference is that Delphi requires consensus — if any estimators disagree, they must continue discussing and re-estimating until they all vote to accept a consensus estimate. I don’t see this working for legal matters.

    This is what happens in the Civilian (Roman Law) countries like France — the coruscating dissenting judgment is very much a creature of the Common Law.

  4. dan
    Posted April 4, 2009 at 7:10 pm | Permalink

    I read this as coinciding with my view that judges, particularly of the superior courts should be *seen to do justice* and a part of this involves the tokenistic idea that there should be some balance in these things.

    I am sure that the lack of african americans didn’t negatively impact the quality of the jurisprudence, but it potentially (at least) affected the perception of the partiality of the court.

  5. Jacques Chester
    Posted April 5, 2009 at 12:08 pm | Permalink

    dan — do many people in front of a judge pay any attention to their associates?

  6. Jacques Chester
    Posted April 5, 2009 at 7:13 pm | Permalink

    SL — for Romanesque jurisdictions, how do they reach consensus on tricky matters? Is there an accepted practice, or is it shrouded in holy-of-holies mystery?

  7. Posted April 8, 2009 at 5:13 pm | Permalink

    I liked Kirby J’s approach that, all other things being equal (or mostly equal), he’d prefer graduates from a more diverse background and from a non-sandstone university.

  8. jc
    Posted April 8, 2009 at 9:58 pm | Permalink

    He was an agreeable gentleman, but although he had four clerks each year to help him with his work, he never once appointed a black person to the post.

    The one thing I always hated about the place. It will bring it down eventually if the race issue isn’t settled.

    How anyone could figure if he had racist tendencies as a result of this issue is beyond me.

    How about the fact that he may have been concerned with affirmative action and that he would end up with a under performing associate? Would firing the first black associate have been worse?

  9. Ross McT
    Posted April 9, 2009 at 4:20 pm | Permalink

    “How about the fact that he may have been concerned with affirmative action and that he would end up with a under performing associate?”

    That doesn’t make any sense – even if he had been subject to Affirmative Action rules, if he was fair, he still would have hired whoever was best for the job. And you would have thought that on at least one occasion out of 140, the best candidate would have been an African-American, wouldn’t you?

  10. jc
    Posted April 10, 2009 at 10:01 am | Permalink

    Ross
    It actually does make sense.

    Why take a chance on someone who didn’t get in to a good law school on raw ability rather than someone who did?

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