Begging The Question

Friday, November 19, 2004

BTQ Exclusive: Albert Gonzales's Last Clemency Memo
In a tradition dating back decades, President Bush this week pardoned a turkey destined for a Thanksgiving execution. For more coverage, see Scott's take here and Prof. Berman's here. Prof. Berman wondered if outgoing White House counsel, and incoming Attorney General, Albert Gonzales wrote a clemency memo in the matter. Well, funny he should ask, because the crack investigative staff here at BTQ has obtained a copy of just such a memo, apparently written on a 1973 IBM Selectric typewriter.

Mr. Gonzales's clemency memos for Bush while Bush was Governor of Texas have been the subject of some controversy. For more on that, see Prof. Berman here and Phil Carter here. This memo is similar to the Texas memos in that it is brief, gives fairly short shrift to the petitioner's arguments, and does not recommend clemency. I reprint it here in its entirety.
To: President Bush
From: Albert Gonzales
Re: Turkey clemency petition

Petitioner Tom T. Turkey, a/k/a "Butterball," petitions for executive clemency. Turkey was convicted of interstate flight to avoid prosecution, and aiding and abetting obesity. At the pre-Apprendi sentencing, Judge Christmas Hamm "super-sized" Turkey's sentence to the death penalty, "with all the trimmings."

Turkey presents two claims in his petition. First, he claims that his attorney, the now-disbarred F. Lee Baste-me, slept during crucial portions of the trial. Baste-me blamed excessive ingestion of tryptophan. In appellate proceedings, this claim was rejected in a convincing opinion by failed Supreme Court nominee Judge Robert H. Beak. Relying on the seminal case of U.S. v. Fishbein, the court found that, at most, Baste-me slept through a discussion of the Lions game by expert witness John Madden, and thus didn't miss anything important.

In his second claim, Turkey contends that his conviction rested upon mistaken eyewitness identification. Turkey argues that the actual perpetrator is this bird:
Hey buddy
While that character looks pretty dangerous, the claim is specious. A hunting party saw Turkey clearly, even though they were crawling on their stomachs through heavy woods to avoid detection. Moreover, a jailhouse informant testified that Turkey gobbled a confession to the crime. Here is the very credible-looking informant, seen prior to trial conferring with the prosecutor in this case, Emeril Lagasse:
The Hokie Bird and Emeril - BAM!

In conclusion, I submit that Turkey has not made a showing that he is actually innocent, or that he was denied access to the courts. The courts have rejected his claims, and my recommendation is that you do the same. After all, if we stop executing turkeys, or even slow down, pretty soon we'll be having tofurkey for Thanksgiving, one of those Chick-fil-A cows will be elected President, and meteorologists predict the sky would actually fall. Accordingly, I recommend denying clemency and allowing Turkey's execution to proceed. As of now, Turkey has not chosen whether to be fried, or receive a lethal marinade injection.

Respectfully submitted,
/s/ Albert Gonzales

Thursday, November 18, 2004

Twenty Questions for the Law Clerk: Scott from L-cubed
Without further ado, BTQ is proud to present the first installment of Twenty Questions for the (blogging) Law Clerk, featuring Scott of Life, Law, Libido fame. Scott graduated from law school back in May and is now clerking for a judge on a state court of last resort. Our questions are set off in bold/italic, and Scott's answers are in plain text. Editor's note: Scott occasionally refers to his judge with the gender-neutral, anonymizing identifier "em," which I gather stands for "employer." Also, there are a couple of words in Scott's answers that the FCC might be not happy about if someone said them during the Super Bowl.

1. How and why did you decide to clerk? How did you first learn about clerking, and think it might be something you wanted to do? Did you talk to other people about clerking, for example, professors, other law students, career services folks, lawyers, judges, clerks, etc.? How helpful were they?

First of all, I'd like to thank Fitz and Milby for the opportunity to participate in this wonderful new feature. BTQ has always been one of my favorite blogs, and I'm sure with creative endeavors like this, it will only get better. (I learned from the presidential debates that you can always give an opening statement even if the rules don't allow it.) I'd also like to say that I can already tell this is going to be a long post. It's not that I tend to be long-winded (or do I?), but more the fact that my cursory review of the questions reveals that this is actually more like a "100 Questions" feature. But I guess I have to start somewhere.

I decided I wanted to clerk towards the end of 1L year. I had excellent grades first semester, and, already hearing whispers about law review and such, I began thinking about the next logical step on the road to legal "success." Yes, this was a selfish, superficial, and myopic view of "success," but at the time I was being told about a valuable credential and I decided I wanted to get it. Later on (2L year and beyond) it became clear that aside from just a line on my resume, clerking would substantially improve the legal skills necessary to succeed in my chosen career field (appellate advocacy), and would offer a unique opportunity to form an intimate relationship with a (hopefully) brilliant and respected legal mind.

I talked to several people along the way, but only to confirm my beliefs - I didn't need any more convincing. The career office was completely devoid of meaningful assistance; I didn't know any clerks or judges at the time; professors mimicked the talking points of the clerkship committee. So the only really helpful folks were lawyers who were ex-clerks and could tell me what they liked about the experience and what it had done for them.

2. Describe your application process. How early did it start? How many judges did you apply to? Did you apply to different types of judges (federal district and circuit judges, state judges, something else)? What did you use as a writing sample? How did you decide which judges to apply to, and which not to apply to? Were your applications broadly distributed, geographically- or politically-speaking? Were you "strategic" in your applications, i.e., applying to your preferred judges early to avoid the possibility of a less-preferred judge giving you an offer you couldn't refuse?

Ah, the application process - what a clusterfuck (can I say that?). I followed the GAAP (generally accepted application procedures - this is mine - you have to credit me from now on if you use it), best articulated in Debra Strauss's book Behind the Bench (see also her website and forums). I applied in waves/phases. The first batch of applications went to my most desirable judges - federal CTA judges who were either feeders, in a preferred location, or appealing to me for some other reason (e.g. I enjoyed a speech they gave, the were recommended to me by an ex-clerk, etc.). The second phase was leftover CTA judges and DCT judges in certain cities or with certain reputations (note: I never really wanted to do a DCT clerkship - not because I'm a snob, but because I'm really not into trial work at all - leave all the witnesses and exhibits and juries to someone else - write me a brief). The third phase came when Phases I and II didn't produce any interviews and I started to panic. So Phase III became a few more DCT judges and all of the judges on the courts of last resort in three jurisdictions where I would like to work. Overall, I think I sent out roughly 150 applications. They were heavily weighted both geographically and ideologically, yet there were several exceptions to both.

I used a brief I wrote during an internship at DOJ as my writing sample; it's a good brief - so good, in fact, that instead of filing an opening brief of their own, the appellees called us and conceded that they were wrong and consented to a remand - but enough horn-tooting. My note sucked, but I had a published case note that I provided to the judges with whom I interviewed.

That was last year. This year I applied again (still seeking that elusive federal CTA clerkship...), but only to about 50 selected judges (a much more targeted effort - all CTA judges, most of whom I had some connection to). I used a brief I wrote for Advanced Appellate Advocacy class as my writing sample. It was a federal sentencing case, so I was hoping to capitalize on Blakely-mania.

3. How many interviews did you get? What were they like? How long did they last? Did you meet the judge's current clerks, or was it all with the judge? What did you talk about? Any particularly memorable questions? Were you offered the job during the interview? If yes, did you accept on the spot? If you didn't get an offer in the interview, how did you find out, and how long after the interview was it? If you can hazard a guess, why do you think you got hired?

Ok, back to the clusterfuck (oops, I did it again). My school (well, the clerkship coordinator) royally screwed up the mailing of our recommendation letters, so none of my application packets were complete until some time in early October. With the new clerkship hiring timeline, this was fatal. As a result, I only had three interviews, all with state supreme courts, and all in Oct./Nov. as a result of the Phase III I never thought I would need.

The first judge was a grumpy old man who rambled about nothing for a half hour and shifted endlessly in his ancient squeaky chair. I never met his clerks. The second was a younger, slicker, man who seemed very full of himself. I interviewed with his current clerks first, who seemed very concerned with whether or not I was used to taking criticism (I should've taken this as a clue and left). They talked to me for about 45 minutes; I met the judge for about 10.

The third was my current employer. I chatted with em for about an hour, and was never asked anything substantive. Em was predominately concerned with whether or not we would get along, so there were a lot of questions about where I grew up, my family, my favorite baseball team, etc. I then met with em's clerk for about half and hour. THEN, I had to do a writing test. (No, I'm not shitting you.) Em gave me a set of briefs, sat me down at a computer and told me to write an opinion. Pretty crazy. But now, having just read a bunch in the process of selecting my successor, I understand the benefit.

This year, I interviewed with a federal circuit judge. It was much like the interview I just described, sans the writing test. A lot of explanation about chambers procedure, a lot of chit-chat, no substantive legal questions.

Last year, I got my offer the day after the interview. That morning I interviewed with the DOJ Antitrust Division for a position in the Honors Program. It was, by far, my worst interview ever. Long story, but here's the gist: I showed up late and wet (rain), and said the exact opposite of everything they wanted to hear. When I was back in my apartment, lying on my bed and feeling miserable, my judge called to offer me the job. I accepted on the spot, and the second after I hung up I called the assholes at DOJ to withdraw my application before they even had the chance to think about rejecting me. Sweet, sweet victory.

I got hired for two reasons: (1) my writing "test" kicked ass; and (2) we got along famously. It suspect it's much the same for most judges. All things considered, 99% of applicants/interviewees can probably do the job - the key is finding someone with whom you will be able to stand working for the next year or two.

4. The law clerk hiring system is the subject of much debate and controversy. Within the last few years, many federal judges have agreed to delay their hiring decisions. What are your thoughts on the way law clerks are hired? How do you feel about the timing of the system, and the "exploding offer" issue? Can you think of a better alternative?

I think the current system is chaos, but unfortunately I don't have the answer. The timing seems about right - by that I mean fall of 3L year is the proper time from an evaluation standpoint - but the implementation is a mess. The Hiring Plan is vague, so no one knows when and how you are allowed to send in your application. The top judges engage in a feeding frenzy to try to secure the "top" candidates, which is really stupid, because I bet there are many more qualified applicants then the small group who get an immediate look. Exploding offers are another unfortunate result of the federal judiciary's obsession with the appearance of elitism in clerkship hiring.

In a perfect world, every qualified candidate would get a clerkship somewhere, preferably with the most compatible judge. Some have suggested the medical school approach, where there is national matching program for residency (see, e.g., Professor Edelman's article in the Summer 2004 issue of The Green Bag). I don't know if that's the answer or not, but I know that the current system doesn't work for everyone.

The D.C. Circuit is considering an interesting potential change. They are currently working on a system where a candidate would submit one application to a central computer system for the entire court. The individual judges could then sort through the applications by whatever criteria they choose, and decide which candidates they were interested in. For more, see my post about it at Greedy Clerks, and the ensuing discussion (which got off-topic, but did feature some interesting opinions on the clerkship application process).

5. Now that you've gotten the job, what are your most favorite and least favorite aspects of clerking? What is the hardest part of the job?

I have a million favorite parts - I could say the hours (basically 9-6, while my friends are billing 60 hours a week min.), or I could say the travel (I'm really racking up the Marriott Rewards points!). But really, the best part is my judge. Being able to work closely with a brilliant lawyer/judge/person in a close setting and discuss and debate important legal issues is an amazing experience. If it were feasible, I'd do it forever. (Or maybe I'll just become a judge when I grow up.)

My least favorite part is probably not having any co-clerks. As great as the judge and secretary are, it gets lonely sometimes. The hardest part is adjusting my writing style to fit my judge's. It's quite difficult to pretend to be someone else when you write, especially if you have a distinct style.

6. In a similar vein, what surprised you most about the job? What aspect of clerking were you least prepared for? Were any of your law school courses especially valuable to your work as a clerk? Are there any courses you now wish you had taken, and if so, why?

What surprised me most was the relatively miniscule amount of little things I have to do. I expected to have a bunch of administrative bullshit to handle, but the staff attorney's office and/or my secretary handle almost everything. I just concentrate on important stuff, which rocks. There's nothing I can think of that I felt unprepared for, really.

I took a class last spring where we pretended to be the Supreme Court (it spawned a short-lived, but critically-acclaimed blog spin-off) that helped me more than I expected. It taught me to look at all of the sides of a case and helped me be able to focus on finding holes in arguments that need to be addressed. Every day I am faced with a new issue that I don't really know much about, so there are classes of substantive law that might have helped, but there's no way to have known that, and I pick up on things pretty quickly. I will say this, though: I really wish my law school offered a class specifically on the civil procedure of the state in which I work. Other schools do, and I'm sure it would be a boon.

7. Excluding your judge, name the judge -- past or present -- for whom you would most like to have clerked. Why would that be your ideal clerking experience? What about that judge do you admire?

Judge Tatel (CADC) is my dream judge. It would be ideal for several varied reasons, some selfish, some not. First, I'd love to be in D.C., where all my friends are. Second, it's the second-most prestigious court in the country, and the docket is chock-full of super cool constitutional issues. But more importantly, and more specifically, I really admire and agree with Judge Tatel's judicial philosophy (see, e.g., this transcript, p.13+). He believes in stare decisis and precedent (unlike some), and he believes that the way you get to a result is often more important than the result itself. And his opinions seek to clearly explain everything so that readers realize what the decisionmakers were grappling with and why they reached the result they did (unlike some).

8. What role, if any, should a clerk's ideology play in his or her work? Should a clerk ever "advocate" for his or her judge to decide a case a certain way? Is it preferable for judges to hire like-minded clerks, or should they seek out clerks who disagree with them often? When your judge and a clerk disagrees, what happens? Do clerks have to write opinions they disagree with? Often? How does that affect the office dynamic?

I think that if a clerk feels strongly about a particular issue, or firmly believes that one party is right, there is nothing wrong with making that clear to the judge. Ultimately, the judge makes the decision for his or herself, and perhaps a clerk's advocacy will make em think harder about the case, which is good thing. I don't believe for an instant that judges will simply bend to the will of their law clerks (as has been alleged). Maybe a clerk will bring up an important, and logically correct point, that persuades the judge - what's so bad about that?

Judges should hire whomever they want. It's entirely a matter of personal preference. Some will no doubt want to be surrounded by "yes men," while others may value dissenters to help flesh out the issues (see, e.g., Kozinski).

When I'm a judge, I will probably hire a mix; however, I wouldn't want an inflexible partisan hack as a clerk. If they are bright, reasonable, good clean debaters, and just so happen to have an opposite ideology, I'd probably give them a chance. I replaced someone who disagreed with my judge on just about everything, so I'm guessing that em probably cares more about personality and writing ability than ideology. As a result, I haven't yet had to assist with an opinion with which I disagreed. It also made it fun (and sad) to discuss the election with someone who was on the same page.

9. Recently, several former Supreme Court clerks discussed the Court's Bush v. Gore decision in Vanity Fair magazine, revealing insider information that arguably violated their oaths of confidentiality. Former Supreme Court clerk Edward Lazarus, who has written similar tell-alls, defends their actions. Where do you come out on this controversy? How "secretive" are your chambers? In other words, how far (temporally and topically) does your duty of confidentiality go? Those who disagree with the Vanity Fair clerks often warn that the give-and-take relationship between judges and clerks would be chilled if the judges worried that confidences could be breached. Do you agree? Do you think the Vanity Fair or Lazarus revelations have chilled communications in your chambers?

My take on the controversy is detailed in this post over at L-Cubed.

Our chambers, and Court, are pretty secretive. I never had to sign any confidentiality agreement or anything, but it was discussed at length during orientation. I don't discuss pending cases at all, and I don't discuss the decision-making process of my judge ever, even after an opinion is released. In one recent case, a co-clerk wouldn't even tell me the vote on a particular case he was working on (I could just ask my judge, but I didn't bother).

I have a hard time forming a coherent philosophy about this. On the one hand, I think the opportunity for frank discourse between a judge and his or her clerk(s) is very important, and to the extent that confidentiality fosters that end, it should never be breached in any instance. On the other hand, I think society is generally in the dark about how the judiciary operates, and that has the potential to be dangerous. If judging is always done completely in secret, there is the potential for abuse; it follows, then, that when a decision is reached in a completely improper manner, someone should say something. I'm not saying that this is what happened in Bush v. Gore, but it could happen in some other case. That said, specifically regarding the Supreme Court, we usually find out years later when the justices' papers are released, so the Vanity Fair Clerks may have spoken a bit prematurely.

The article has never been discussed in my chambers or with others on the Court, so it hasn't had any visible effect that I know of.

10. Describe generally the inter-chambers relations. Do the clerks get along with each other? Do you socialize outside the office? Do you ever associate with clerks from other chambers? Is your office laid-back, or more formal? Does the judge have an "open-door" policy, or are your communications more regimented? What's the dress code? What are your work hours? Also, to the extent you feel free to discuss it, please tell us a little about case-management procedures in your office. Does the judge do most of the writing, or do the clerks do the draft opinions? Do you do "bench memos," or otherwise help the judge prepare for oral arguments? How are cases assigned, and do the clerks ever collaborate on cases? Do you think judges in general rely too much on law clerks?

As I mentioned above, I am my judge's only clerk, so there is nothing to speak of regarding case assignments, intra-office socializing and the like. And I can't really tell you about the opinion-writing process. Suffice it to say that I have some input into the cases that emanate from our chambers. I assist the judge in preparation for oral argument, but not usually via traditional "bench memos." My judge is very thorough in preparing for all of the cases in any given court session, and does not rely on me too much at all. Unfortunately, from what I've seen and heard, that's not the case with everyone else.

We have very informal chambers. Dress is business casual (I wear khakis and a button-down pretty much every day). My judge and I are very laid-back, and are often in each others' offices discussing cases, as well as anything else that happens to be on our minds, from the World Series to the election. Feedback is always oral and immediate; there's not a lot of memo-writing back and forth. If I did nothing but work straight through the day, the hours would be about 9-5:30. But depending on the amount of emailing, blogging, surfing, and talking I do, I'm usually here from about 8:30-6:30. Still, much better than my friends who started to work at big firms this fall.

I get along great with the other judges' clerks. Every time the court is in session we get together for lunches, dinners, drinking and karaoke, and viewings of "The O.C." Many of them plan to practice in the same city as me, so hopefully we will continue to hang out after we are all finished.

11. Now is your chance to don the robe and lecture the Bar. What advice do you have for attorneys appearing before your judge's court? What thoughts do you have about the quality of the briefs and oral arguments you see, and what suggestions do you have for attorneys in making them better?

Oh, God. Where do I start? All of the previous advice on appellate advocacy given here at BTQ has been dead on (see, e.g., this post). I see a ton of horrible briefs, and an equally disappointing amount of bad arguments. All of the deficiencies, however, are things that can be remedied by following basic rules for effective appellate work; I haven't noticed anything unique to my court up to this point. For example, don't cite lower court opinions and pretend like they're binding on us - we're the friggin' highest court - we say what the law is. And if you cite one of our opinions, don't misrepresent the holding. Trust me, I will catch you, and the consequences will not be good. Credibility is hard-earned and easily taken away. At oral argument, answer the hypotheticals. Don't tell us that "this is not the case here" - we know that - that's why it's called a hypothetical.

Anyway, I could go on and on. Know the facts of your case, know the relevant precedent, and know the logical boundaries of your argument. Prepare as much as possible, and relax; it will all be over soon ;-)

12. Unpublished opinions are a perennial controversy. Does your court issue unpublished or non-precedential opinions? How does the work that goes into those differ from precedential opinions? What are your thoughts on the proposed federal rule that would allow for citation to unpublished opinions?

To my knowledge, we don't deal in the realm of unpublished opinions. We do dispose of "easy" cases via orders, which are unsigned and unpublished, but that's different.

Since I haven't (yet) served as a federal law clerk, I can't speak on whether the proposed rule is a good idea. Many believe that overworked courts shouldn't have opinions on which not a lot of time was spent thrown back at them, but I can't tell without being in that situation. From the perspective of an advocate, I see their usefulness, although one needs to realize their limitations. I don't condone the use of an unpublished opinion to support a particular rule of law, but if there is a factually similar case that reached the same result, but happened to have been unpublished, I would definitely see how it might help to bring it to the court's attention. I guess I would take the middle ground: We don't need a rule saying all citation to unpublished opinions is allowed, nor should some circuits be able to ban them completely. Allow citation to them, but only in certain instances. Oh - and don't make lawyers attach copies of them. In the LEXIS Age, this is unnecessary.

13. Your judge's court exercises discretionary review over most appeals. Do you think that's a better system than allowing for an appeal as of right? How does the court in general (or your judge in particular, if you can say) decide what type of cases to accept for review? What role do the clerks have in that stage of the process?

Like the U.S. Supreme Court, you have to petition my court to have your case heard, and I think it's a great idea. It keeps the court focused solely on important issues that need to be resolved, instead of weighing down the docket with cases that fall directly under prior precedent. The court can grant a case for whatever reason it wants, but mainly we only take cases where there is an unresolved issue of law, the lower courts have been coming out on different sides, or a statue has been misinterpreted or has produced an absurd result. The clerks read all of the (many, many) petitions and write memos including a recommendation on whether or not the court should hear the case, so I guess you could say we have a significant role in this process.

Certain cases (e.g. death penalty) do get an automatic appeal as of right. I don't see very many criminal petitions in general because most are easily disposed of and are handled by the staff attorney's office.

14. If you care to reveal the answer, was your judge elected or appointed? Generally speaking, do you think election or appointment is a better process for choosing judges, and why? Do you think your judge would have achieved the same position in either system? Was your judge's installation contentious or difficult, or did your judge enjoy broad support and easy approval? How long has your judge been a judge, and how long do you think your judge will continue to be a jurist?

My judge was appointed, and I definitely think it's a better process than judicial elections. Judges are supposed to be fair and open-minded, and it is an unfortunate truth that political elections these days force office-holders, yes, even judges, to become beholden to special interests and other campaign contributors. Even the most virtuous of judges cannot realistically ignore a large donation from a particular lawyer, firm, or lobby when deciding a case in which one is a party.

My judge has told me that em would never run for anything, so I can tell you that em wouldn't be here if judges were elected. Em had no problems being confirmed originally, but judges have to be re-appointed after a certain number of years in this state. In the years since em's appointment, the party in power shifted, and tougher questions were asked.

I can't give a specific number of years, because that would perhaps give too much identifying information, but let's just say em has been a judge for the better part of my life. Em is relatively young for an appellate judge, but is financially comfortable and could retire in 10 years or tomorrow if em wanted.

15. Does your judge know about your blog? Do you blog from work? How have your clerkship duties changed your blogging? Have you ever used any blogs in your work? For example, have you ever pointed out to your judge something you saw on How Appealing or SCOTUSBlog or another site because it might apply to something you were working on?

My judge is-how should we say?-not very computer-savvy. I didn't tell em about the blog before I began my clerkship, because I don't talk about work and I am (mostly) anonymous, so I can't really be linked to my judge or court. If em knows about it independently, em hasn't told me. I'm not all that concerned about potential backlash. I blog from work occasionally, but try not to very often (I have done so more recently due to the crash of my laptop). I probably blog a little less now than when I was in school due to time constraints (obviously, my co-blogger Matt's productivity has dropped even more dramatically). I haven't affirmatively used blogs at work yet. If I saw something on HA or SCOTUSblog that applied to a case I was working on, I might read the opinion and bring it to my judge's attention, but I probably wouldn't send em to the blog. I have occasionally seen news items on Howard's blog relating to my jurisdiction that I always read and sometimes tell my judge about.

16. Does your judge read blogs? If so, which ones? Would you ever suggest that your judge agree to an interview from a blogger, like the Article III Groupie? What would your judge's reaction be? More generally, how (if at all) should blogs be used by judges and clerks? In what ways do you think blogs will change the judicial process? What are the chances that your judge would cite to a blog in an opinion?

See above - I doubt my judge even knows what a blog is. As an "icky" state court judge, A3G would not be interesting in interviewing my employer, so I wouldn't bother making the suggestion. Before Bashman killed his feature, however, I was considering volunteering my judge. I think my judge would have been an enthusiastic and entertaining participant.

I don't think blogs will change the judicial process at all. As of right now, the only concrete impact I think they've had is the ability to point out errors in opinions. I think clerks can and should use them for background, but, at least until the gain more mainstream acceptance as credible news sources, I don't see any value in citing them. FWIW, I don't think my judge would cite a major newspaper, let alone a blog. Hell, em doesn't even cite opinions from single-judge courts (e.g. federal district courts don't get cited in my chambers).

17. What advice would you give law students who are considering clerking? What do you wish you had known when you were in their position? Any tips for the application process? Any suggested courses? How should clerks-to-be prepare themselves for the job?

Study hard, and get on law review. For whatever reason, clerkships are incredibly credential-driven. It's probably too late to make sure you go to a top ten law school, so if you're not at one, make the most of wherever you are by getting on a journal, becoming an editor, being a research assistant for a respected professor, and graduating at the top of your class. Try to network in circles that will get you connections to judges and their clerks, past or present. The application process is a mess (see Question 4), and I'm convinced that the best way to get a clerkship is to somehow get the judge to look at your application because of some connection. Otherwise, it's just a crapshoot - if you're not top of your class at Yale or Chicago, you're competing against several hundred peers who all look the same on paper.

As for classes, at the state level there aren't any substantive classes that would particularly help, because the cases cover such a vast number of subjects. If you do a bar review course, you'll get the basics. I'm sure it's different for federal clerkships, where it would help to have taken Federal Courts, Separation of Powers, Administrative Law and other courses dealing with jurisdiction. Criminal Procedure would also be a good idea. Also, don't take Legal Research and Writing for granted. It's usually only a credit or two, and often ungraded, but if you put in a lot of work it will pay off. I use basic research skills and writing methods every single day.

Finally, prepare yourself for the job by relaxing. Don't even think about the law in the weeks and days leading up to your clerkship - there will be plenty of time for that later. Go on vacation (the best thing I ever did).

18. Continuing the advice theme, do you read or post on the Greedy Clerks message boards? If so, do you think it presents an accurate picture of the clerkship application process, the actual clerk responsibilities, or the general attitude or outlook of clerks? Is it a reliable source for information? What do you think is the best source of information for wannabe-clerks? What information (if any) that should be readily available, isn't, and who should be responsible for publicizing that information?

Yes, I post on Greedy Clerks. I outed myself last month as "Justice Suitor." Howard Bashman told me it was easy to figure out anyway. I think that if you filter through the sarcastic bullshit you get pretty accurate advice for the application process, with a decent assessment of your chances from people who are actually in the jobs doing the screening. Sometimes, however, I think the GCs get too elitist and scare off some people who might be able to secure a clerkship by telling them they don't have the "proper credentials." For that reason, I would suggest going to the forums I mentioned in my answer to Question 2 - Of course, another good resource for potential clerks are blogs written by current and ex-clerks. For example, I posted some suggestions awhile back in response to something I saw on the now-defunct Curmudgeonly Clerk. See also this post collecting blogs on this year's process.

All necessary information on the clerkship application process is pretty much available. Strauss' book tells you how to apply. The hiring plan with important dates is on the web. FLCIS tells you who is hiring and what they want. GC and the forums can give specific advice (note: clerkship salary and post-clerkship bonus info. can be found in the links section of GC). The only thing you can't find is detailed statistics of who gets hired with which judges so that you can assess your chances. Someone should do this, but it is an enormous task that would run into a lot of logistical problems.

19. How has clerking differed from other jobs you've had (and what other jobs have you had)? What's next after your clerkship? Do you think clerking has prepared you for that job, or others down the road? In what way? Do you anticipate that one day you will look back on your clerkship as the highlight of your career, and why or why not?

I went straight through from undergrad to law school, so this is my first "real" job. The last two summers I worked at BIGLAW. I've also been a research assistant, a law clerk to a small litigation firm, and in intern for the government. The main difference between clerking and law firm life (besides the obvious things like pay and hours) is the autonomy. I am given assignments with set deadlines that are usually weeks away and simply asked to get them done before that. I work at my own pace and divide the work however I see fit, as long as my judge gets the memo or opinion on time. At a firm, you get bits and pieces of assignments with due dates that vary from two weeks to two hours. Someone is almost always checking up on you, and the assignment - and your role in it - can change fairly often. I like the predictability of the clerkship, a function of the set procedures inherent in the appellate process.

Next fall I begin work in the appellate practice group of a major firm's Washington, D.C. office. I am definitely excited to begin practicing, and I truly believe that I will be better prepared as a result of my clerkship. If nothing else, all of the poor briefs and arguments have surely shown me what not to do in practice. Plus, since I spend the majority of my time writing, and trying to be concise at that, I am confident that my writing skills have improved. And it is of course invaluable to be able to see judicial decision-making from the inside. I know what judges are looking for in a case (well, at least one judge), so I think I can better shape an argument to make it stand out in a court's mind.

It's hard to say what I will think about my clerkship when I look back on it. It's definitely a wonderful experience, and I'm sure it will continue to be a highlight, but I plan on having lots of highlights in my career, so whether this is the best remains to be seen.

20. When you're not slaving away in chambers, what do you like to do for fun?

I like to spend time with friends - I'm not much of a loner. That usually means going out to happy hours or parties, but also includes watching sports, going to the movies, attending seasonal events like haunted houses, and visiting museums and galleries.

When I am alone, I like to watch movies and television, play video games, read, and do crossword puzzles. Some of my other hobbies include wine tasting, golf, and jazz music. I enjoy sailing very much, but don't get to sail very often these days. I also used to play several instruments (including saxophone and guitar), but haven't picked up any in years. I sing in the shower, but I probably wouldn't call that a hobby. Oh, yeah - I also blog.

BTQ Presents: Twenty Questions for the Law Clerk
Your humble bloggers are proud to present a new feature at BTQ, an interview with a law clerk we're calling (in a fit of originality) "Twenty Questions for the Law Clerk." In the spirit of Howard Bashman's interviews with appellate judges, an endeavor merrily continued by the Article III Groupie, we will post, at irregular intervals, a question-and-answer session with a clerk to a judge. Get the real inside scoop on the hiring process, the lowdown on life as a clerk, and find out what it's like to blog on the taxpayer's dime!

We're also extremely pleased to announce that our first interviewee is Scott from the blog Life, Law, Libido, who is currently clerking for a judge on a state court of last resort. We've just received Scott's answers to our questions, and we can assure you that they're fascinating and informative, and a great way to kick off what we hope will be a long-running feature of our blog. We're going to publish the interview later today -- we want to tease you long enough for the news of this momentous occasion to race around the blogosphere, but we'll post it before you forget about it.

As I said, we hope this becomes a recurring feature around here, but that depends on having more law clerks willing to be interviewed. If you're interested in participating, please send us an email. We will respect your and your judge's anonymity if you want me to, but we will need some assurance that you're actually a law clerk and not a sadly misguided publicity hound. Current clerks are preferred, but if we can't get any volunteers from those ranks, we would be happy to interview recently former clerks (you folks know who you are). Once you see Scott's interview, you'll get a sense of the type of questions we're asking and whether you think it's the kind of thing you want to talk about. But if the phrase "misguided publicity hound" ever applied, it's probably to former law clerks...

Disclaimer, so we can link to it from future interviews: The views expressed in the interview are of course those of the clerk, and not the judge who employed the interviewee. Of course, we'd be happy to interview any judges that wanted to talk, too.

Anyway, we're very excited about Scott's interview commencing this feature, and optimistic that we'll be able to get equally interesting interview subjects in the future. Stay tuned for Scott's interview later today, and let us know if you're interested in being our next interviewee.

Wednesday, November 17, 2004

Meet the New Boss, Same as the Old Boss?
Fourth Circuit Judge J. Harvie Wilkinson III has been widely suggested as a possible replacement for Chief Justice William Rehnquist when the latter retires. Today, I read an essay by Judge Wilkinson printed in the October issue of the Columbia Law Review. The cite is "Our Structural Constitution," 104 Colum. L. Rev. 1687 (2004). It's an interesting read, and not very long (the pdf is 23 pages). After reading it, I conclude that if he were to be named Chief Justice, Judge Wilkinson would follow closely to Rehnquist's philosophy of federalism. And while this means that a Jay-for-Bill switch would maintain the Rehnquist-led revolution in federalist jurisprudence, it also means that it probably wouldn't go further (at least not directed by Wilkinson).

Wilkinson's thesis is that the Constitution has been viewed for too long as primarily a charter of individual rights "and little more." He argues that we should also view the Constitution as "the blueprint of our government." The Constitution, he says, has much to say about "direct[ing] responsibility for a decision to a particular branch of the federal government or to the states." Wilkinson's essay examines the federal court's place in that structure vis-a-vis the Congress, the Executive, and the States. Accordingly, I think it is an apt looking-glass through which we may predict how Wilkinson would see the role of the Supreme Court if he were on it.

Of course, there must be caveats in an analysis like this, grounded on but one document. I have not endeavored to review systemically Judge Wilkinson's opinions as a circuit judge, which would surely be a better divining rod of his philosophy, even though those opinions would have to be consistent with Supreme Court precedent whether Judge Wilkinson likes it or not. At least an essay can't be appealed. In addition, it's not unheard of for Justices to drift right- or left-ward during their tenures, so perhaps this snapshot of the Judge's views will look faded with time. With those reservations in mind, back to the essay.

Wilkinson says that one reason that the individual rights view of the Constitution prevailed until recently was that "[T]hroughout American history, state governments have used high-minded structural arguments to protect some very low practices. In the process, they gave constitutional structure a bad name." In addition, the Warren Court "reflected" (rather than drove) the civil rights movement, which "underscored the need for individuals to be protected from state governments with a stubborn commitment to at least the vestiges of segregation. Second, the criminal procedure revolution recognized rights that our system of justice had too long denied defendants, especially black defendants in Southern states." Although Wilkinson says he "both approve[s] and applaud[s]" these results, the cost was of these victories was that the structure of the Constitution ceased to matter very much. Wilkinson seeks to restore its emphasis.

With regard to Congress, Wilkinson says that instead of deferring to Congress on the assumption that the states are well-represented there and it is individuals who need to be protected, the federal courts should remember that "[t]he fact that states may have failed to prevail on their representatives in Congress to prevent an encroachment on their rights does not nullify the independent judicial obligation to determine whether Congress exceeded its lawful powers." Wilkinson notes that the greatest vindication of this theory was in United States v. Morrison, where the Court, in a Rehnquist opinion, struck down portions of the Violence Against Women Act as beyond the scope of Congressional power. Never mind that representatives from the purportedly put-upon states voted to create private rights of action because the states weren't doing enough. Wilkinson says that even if the structural alignment of the states and Congress is politically enforceable by the states, it should be judicially enforceable too. (Note that Christy Brzonkala's rights ended up being neither politically nor judicially enforceable.) For this the Judge harks all the way back to Marbury v. Madison: This isn't something for the states to hash out via the elected representatives; it is the Court's place to referee. Certainly, one vestige of the Warren/Burger eras that the Rehnquist Court has not shed is the aggrandizement of the Court's role as final arbiter of, well, everything, be it social policy in Lawrence v. Texas or the parameters of the state/federal spheres in Morrison. Wilkinson sees this as the role of the Court even though "one who reads the Constitution from beginning to end would be left in no doubt that the usurpation of the powers of popular governance by an unelected third branch was decidedly not what the Framers had in mind."

Wilkinson does express the need for judicial restraint, hoping that "judicial invalidations of congressional enactments should be few and far between." Of course, that is not the legacy of the Rehnquist Court, and Wilkinson never shies away from saying that the referee is ever-present and ready to whistle Congress for violations.

With regard to the Executive, Wilkinson notes the tension between the Courts and the Executive that are often present either when the Executive infringes on the rights of individuals (in criminal, civil, and administrative settings), necessitating Court intervention, as well as instances when the Executive asserts its own authority in matters like executive privilege and national security. What role should the Court play in enforcing the structural limits on the President's power, and vindicating individual rights against Executive abuses? Wilkinson focuses on the Executive's response to the Sept. 11 terror attacks. He writes, "The critics protested the executive actions from a rights-based perspective, lamenting the absence of hearings, counsel, and other elements of criminal process. Their concerns are understandable, but they might be tempered by attention to basic principles of constitutional structure." He goes on to say, "The executive branch is thus on firmest ground when its claims of national security or executive privilege are anchored in the explicit structural mandates of Article II [such as the duty to act as commander-in-chief]." The Supreme Court, however, rejected the President's arguments in Hamdi and Rasul. Rehnquist, and presumably Wilkinson, would have approved the Executive decisions at issue in those cases, including placing detainees beyond the rule of law at Guantanamo. (Rehnquist did vote for some limited judicial review for citizens, in Hamdi.)

Wilkinson laments this rights-above-all approach to the Court's interpretation of Executive power, and interestingly, he criticizes another decision that took a similar view: Clinton v. Jones, rejecting President Clinton's claim for immunity from suit for sexual harassment committed before his term in office. Had the lawsuit at issue in Jones been filed shortly after a Sept. 11-style attack, surely the Court would not posit that it is "highly unlikely to occupy any substantial amount of [the President's] time," as if the President were not very busy.

Even though Wilkinson says that the political process, up to and including impeachment, would have dealt with the Clinton matter satisfactorily until he left office, he still asserts that it is the Court's role to say so. He goes on to discuss Morrison v. Olson (approving the independent counsel statute) and the line-item veto case Clinton v. City of New York as examples of times when the Court properly stepped in to resolve disputes between the Executive and Congress. Although Wilkinson promises that "the Structural Constitution imposes profound limits on that role," they're not obvious to me.

Finally, Wilkinson turns to the role of the Court with regard to the states. Here, Wilkinson's bottom-line contention is that, although the rights-based view has substantial structural support in the Fourteenth Amendment, it is trumped by the structural framework in the pre-Civil War Constitution, which survived, "albeit in a modified form." However "modified," the structural benefits of the states' powers and rights are still strong enough to defeat assertions of individual rights or Congressional power. Wilkinson trumpets approvingly the Rehnquist Court's revitalization of the Tenth and Eleventh Amendments. Sure, Congress still has the power to require the states to pay their employees at least the federal minimum wage, but beyond that, the feds don't get to limit state power very much.

But Wilkinson, like Rehnquist, does not advocate going all the way down that road. Wilkinson calls the Tenth Amendment an "antidote to national uniformity," but he doesn't want the cure to be worse than the disease. Rehnquist, despite leading the federalism revolution, wrote in favor of Congressional power to pass the Family and Medical Leave Act in Nevada v. Hibbs. Likewise, Wilkinson seems nonplussed when he concludes that "[n]o betting person, then, would believe that the Tenth Amendment was poised for a major revival."

Wilkinson wraps up by looking to the future. The structure of the Constitution, he says, was the Framers' attempt to balance liberty and order. But it will be the Court that will continue to draw the lines. I grant that Wilkinson says that the judiciary should be restrained, and always ask if another branch (or the states) is structurally delegated the task of resolving a particular issue. But the clear trend, since the New Deal, has been for the Supreme Court to insert itself into those dilemmas. And Wilkinson sees that as the proper role for the Court. Just as Marbury was a power-grab by the Supreme Court even though the ruling in that case denied the Court power to act, the current Court has not shied from setting the agenda and usurping the political branches. I think one of Rehnquist's most controversial (especially to conservatives) opinions fits this mold. Despite years of criticizing the Miranda rule, Rehnquist wrote the opinion in Dickerson v. United States upholding that decision over a Congressional statute. It remains, he said, the Court's job to define the Constitution, not the Executive's, and not Congress's. Like Rehnquist, Wilkinson's structural constitution would put the Court front and center in resolving disputes like this. And of course, he who makes the rules, rules.

In sum, based on the admittedly small data set of one essay, I think a Chief Justice Wilkinson would adhere closely to the course of Chief Justice Rehnquist. The Wilkinson Court would be a political and pragmatic body, mostly statist, at times friendly to assertions of Congressional, or Executive, or State power, but at all times secure in the principle that it is the Court that ultimately decides who wins in these power plays.

Random Thoughts
1. Conservatives are upset that a woman named Margaret Spellings will be the replacement for Rod Paige as Secretary of Education. I hadn't heard of her, but it looks like she was important in making sure that the President's advisory committee didn't water down Title IX regulations. I was pretty sure I had blogged about that before, but I can't find a post about it. Anyway, I guess your take on this news depends on how happy you are with the way Title IX operates now. In somewhat related news, note that the Supreme Court will hear arguments later this month in a case asking whether there is a right of action for retaliation under Title IX. A girls' team coach in Alabama was fired after complaining that the school's policies violated Title IX. The coach's lawyer is Walter Dellinger.

2. Speaking of sports, I saw that Oklahoma football coach Bob Stoops suggested that ESPN's contract with the Southeastern Conference was driving its perceived backing of Auburn over Oklahoma as the #2 team (and winner of a place in the national championship [sic] game). This comes only a few days after Kansas coach Mike Mangino, who I think is a former Stoops assistant, accused game officials of throwing a game so Texas would have a better shot at getting in the BCS. My response to Mangino is that he's crazy. But, if people think the BCS system is corrupt, that might be (yet) another argument for replacing it. However, I hope no one thinks that simply reverting back to a poll-dominated system is the answer, since the coaches' poll remains anonymous and could very easily be subject to...uh, spin. And the other poll, the writers', would be subject to the same accusations Stoops is making now -- after all, a beat writer for an SEC team might want to follow "his" team to a certain bowl game and vote accordingly, right? Well, my answer to Stoops is that ESPN is not the problem here. That network, of course, is owned by Capital Cities, as is ABC -- which has the contract for all the BCS games! So ABC (and by extension ESPN) does fine regardless of whether Oklahoma or Auburn makes the Orange Bowl. In fact, they do even better if one of the troika of major undefeated teams is in the Sugar Bowl as well, because it would boost the ratings for that game, too. ESPN is in a win-win here, and I don't it is pushing Auburn for reasons having anything to do with a contract that puts a lot of South Carolina vs. Kentucky-level games on its network. Remember that the biggest SEC games, like last weekend's Auburn vs. Georgia game and the SEC Championship game, are on CBS.

3. There are a few matters buzzing around the blogosphere that I want to write about, but time and priorities prevent me from getting to all of them. I regret that there's no way for me to offer a substantial post on law schools and affirmative action, the subject of a new article and series of posts at the Volokh Conspiracy by UCLA prof Richard Sander. Click here for the latest entry on the issue and use the links therein to go back to the beginning. The (very) abbreviated gist is that Sander has done extensive statistical studies of law school admissions, and come to the conclusion that affirmative action policies hurt black law students. Because of these policies, he says, black students wind up at the bottom of "better" law schools instead of the top or middle of "worse" schools. (Better and worse are of course crude generalizations. In fact, we're talking about an upper-tier school versus a mid-level school, or a mid-level school versus a lower-tier school.) Because these supposed beneficiaries of affirmative action end up in the low end of their classes, they learn less, pass the bar at lower rates, and have less rosy employment outlooks than they would if they had gone to a less competitive (to get into) school. I really can't give this the response it deserves, because it's very important stuff. I haven't read the article yet, but I have read Sander's summaries and some other commentary on it (pro and con). I can't argue about statistics; my eyes glaze over. And at the risk of being accused of picking a fight and running away, I think that Sander's assumptions are at least questionable. I'm not convinced that someone in the bottom ten percent at, say, Harvard, "learns less" that he or she would have at, say, George Washington. Or that someone low in the class at GW learns less than he or she would have at, say, American, or Catholic. And I'm dubious that someone at the bottom of the class at Harvard would automatically perform well at GW, although maybe that's true. From my own experience at a top 25 law school, I knew black and white students at the bottom of our class who I don't think would have done well at any but the very worst law schools, although I'm sure some of them would have done well at lower-ranked schools. And class rank is one thing; "learning" is another. I am quite certain that I "learned" more than some folks ranked above me in my class, and less than some ranked below me. But overall, "learning" in law school is very hard to quantify, unless your only matrices are class rank and bar passage. I think learning isn't always so easy to measure. I was in the top third of my class; would I necessarily have learned less if I had been in the bottom third at Harvard? I don't know. I still think it would have been pretty educational. Anyway, again, I can't spend as much time discussing this as I'd like. But I highly recommend the posts, and I'm gonig to read the article as soon as I have some time.

4. It's a good thing this opinion was a published one. It sure wouldn't do to have this cogent and thorough legal analysis unpublished and unavailable for citation as precedent.

5. My prediction for the Time Person of the Year is that it will be gays and lesbians.

6. I think I'm with Prof. Yin and Fed. No. 84 in the controversy over the Delta flight attendant who was fired for posting semi-suggestive photos of herself, in uniform on an airplane, on her blog. (All the relevant links are on Yin's page.) I don't see how she could have a viable lawsuit, despite her lawyer's threats to sue for big money. To show that she was fired "on account of sex," she would have to prove that Delta treated "similarly situated" men differently. And given the way that term is defined, I can't imagine the odds of finding a male flight attendant who posted suggestive photos on his blog, and whom Delta knew was doing it. Good luck with that. I don't agree with Delta's decision to fire her for this, but I'm pretty sure they're legally able to do it (I say, having no idea what her contract -- if she had one -- says about this kind of thing).

7. New York City unveiled its detailed proposal (as in 562 pages' worth) for landing the 2012 Olympics. A few thoughts. First, it's nice that the French are openly hoping that rampant anti-Americanism hurts NYC's bid and benfits Paris's. Second, the scope and detail of this things is impressive, and the numbers are huge:
NYC2012 has already signed firm contracts with more than 200 hotels for nearly 45,000 rooms, about a third of the city's entire supply, at a formula rate that is intended to avoid gouging. It has also signed deals for 95 percent of the city's 600,000 advertising signs, including billboards, bus, subway and street furniture, around the time of the Olympics. [snip] Olympic rings would be projected in the night sky, like the Batman signal. The Empire State Building, Statue of Liberty and other landmarks would also be lighted. A ribbon of light would traverse the East River. Skyscrapers, buses and subways would be draped in Olympic murals. [snip] Total capital investment was estimated at $7.6 billion. Mr. Doctoroff said 99 percent of that will be spent whether or not New York gets the Games. The biggest items are $1.8 billion for the No. 7 subway line extension, $400 million for Intelligent Transportation System technology, $381 million for ferry terminals, and $360 million for an International Broadcast Center. The $2.8 billion operating budget includes $792 million to operate the competition sites, $429 million for salaries, $373 million for technology, $257 million for administration, $110 million for ceremonies, $170 million for transportation, $101 million for security, $54 million for promotion, $39 million for catering and $10 million for doping control. New York expects to raise $3 billion in income for the games, including $600 million from TV rights, $300 million from corporate sponsors already lined up, and $1.7 billion from other local sponsors and ticket sales. In 2001, the State Legislature pledged $250 million in financial guarantees for a New York Olympics. The committee budgeted an additional $200 million in contingency funds.
Third, the logistical burden, especially on transportaion, if this thing happens, ain't gonna be pretty. Fourth, the Jets and Giants and Nets are trying to capitalize on the potential building frenzy to get new arenas/stadiums financed in part with public money. Keep us posted, Field of Schemes. Fifth, the Doctoroff mentioned above is the deputy mayor who has been spear-heading this whole shebang for years. He said that he was inspired to try to get the Olympics in New York "by a 1994 World Cup match between Italy and Bulgaria at Giants Stadium." When will the history books finally give proper credit to the significance of that epic match? On the pitch that day, those men didn't know they would change the world...but those footballers are directly responsible for all this. Thank you, Italians. Thank you, Bulgarians. As Samuel Morse put it, "What hath man wrought?"

8. OK, I know, this wasn't much of a post, but I wanted to get something up. And I've been working on some better things. They're just not ready yet. Stay tuned, will be rewarded for your loyalty and patience.

Tuesday, November 16, 2004

Jerk, Table For One; I'll Be Having Foot Tonight
I deleted a post from last week. If you're a close reader of BTQ, it was the one about the Milbarge v. "Millbarge" brouhaha. In sum, it ended up being a rant directed at E. McPan, who didn't deserve it.

Honest to goodness, I didn't intend the tone that clearly came across. I was a little miffed, but I wanted to sound Yosemite Sam angry ("consarn rassa-frassa...") and instead sounded Son of Sam angry. Now that a little time has passed, I can't even really explain why I was upset at all. But I know for sure that I wasn't mad at E., who has been a good friend of this blog. She seems like the nicest kind of person, and I know she didn't intend to upset me. I'm terribly sorry if my post upset her. Even if it didn't, I'm sorry anyway. I should have sucked it up and not been such a goon.

I've already apologized privately to E., and this is my public apology. It's both for her and for anyone else who (correctly) thought I was being a moron. I hope you can forgive and forget, and I will endeavor not to be so prickly in the future. Thanks.

Why I Don't Believe
I don't think I can accept a God who would make something like this but not let me have it.

Now I know how Job must have felt.


Monday, November 15, 2004

Right-Click Is Your Friend
This is a bit of a public service announcement. Make Your Mouse Ambidextrous!

1. I downloaded Mozilla's Firefox web browser over the weekend and I love it. The basics are the same as any other browser: type in the address and go there, hit the arrow to go back, etc. Don't worry about losing your favorites; Firefox imports them from whatever you're using now. It comes with pop-up blockers, natch. Note that I still had to download a few apps, like Macromedia's Flash, but that wasn't too difficult. (Adobe Acrobat came through fine, it seems.) I don't have my Google toolbar like I did in IE, but Firefox comes with a search box that allows me to pick from several engines, plus the dictionary. Combine that with the automatic pop-up blocker, and there's no need for the Google toolbar. The real selling point for Firefox is tabbed browsing. You know how in Word or WordPerfect you can pull up a new document and have the little buttons at the bottom, which you can use to toggle between the two, all in one word-window? Well, this works the same way, only with web pages. It's very easy to get used to. Bloggers love it because it's easy to have the blog on one tab and whatever you're blogging about on another. Close them separately if you want. I used to open a bunch of windows at once and use alt+tab to go back and forth. No longer. I haven't yet tried to see how many tabs Firefox will open without crashing, but I've had five open with no trouble. The trick, which is very easy to pick up on, is to right-click (this will be a theme) on the link you want and select "open in a new tab." Easy.

2. This was very intuitive to me because, as I said, I used to open a lot of windows and toggle between them with alt+tab. Now, instead of hitting those buttons and shuffling through everything I have open, I can simply click on the tab at the top of the screen for whichever page I want. If, for some reason, you can't get Firefox (like me at work), I hope you've realized by now that you can accomplish basically the same thing if you right-click on the link and choose "open in a new window." (Firefox allows this option, too.) This way, you don't have to lose whatever page you started from, but you don't have to go to the trouble of clicking on the desktop icon when you want a new window. I figured everyone knew that one by now, but I continually run into people who don't even realize the right button on the mouse does anything.

3. This one is new to me, and I've been using WordPerfect for years. If you're not a WordPerfect user, this probably won't make any sense. So WordPerfect has all these codes, right? (If you don't know about the codes, you don't know much about WP. But in essence, it's like blogging and putting the bold or italics or link tags on and off text.) Well, when you copy something into a WP document, you bring the codes with it. So, for example, let's say you're copying something from Westlaw into your WP document. If you just hit ctrl+v to paste it in, you also paste the codes from that text. And in Westlaw, there's a ton of them: fonts turning off and on, hyperlinks, search bookmarks, single-spacing, etc. To avoid fouling up your document with all that junk, and to integrate the Westlaw text in the same format as your document, you have to pull all those codes out, which is a major pain. Here's the tip: Instead of using the keystrokes to paste the text, right-click on the spot and select "paste without font/attributes." This will paste text that is as close to stripped-down as you can get. You still have to pull a couple of codes out, but it's nothing like before. This was a godsend to me. I play around in the codes a lot, and I hate pulling out all the extraneous stuff. Let's just say that my work for the judge has been employing large block quotes from Westlaw with increasing frequency since I learned about this little trick. (My guess is that there's a way to do this in Word -- maybe "paste special" or something. But I don't think it's as easy, and it's not as much fun as the codes! Down with Word!)

Anyway, there's a few little nuggets from me to you. Don't make the right button jealous -- use both mouse buttons! There's fun stuff over there! And go get Firefox!

I mentioned in passing the other day that I was trying to re-establish contact with an old friend (I'm still waiting for the phone to ring, by the way). It reminded me of the mixtape I sent to that friend two summers ago. It was the last mixtape I made, meaning both that it was the most recent one I made, and that it was likely the final mix I made on tape, rather than CD. I made a copy for myself, and I listened to it a little over the weekend. Just for fun, and since I don't have anything else ready to post today (gotta feed the beast!), I thought I would share the songs on the mix. This morphed into a hugely inane exercise in navel-gazing, but by then I had invested too much time in it not to post it.

Here's what I was going for. I mainly used old favorites of mine, or at least artists I liked. (Sidenote: I've seen six of these artists in concert.) I tried to go for songs that probably weren't the most well-known from these artists. Largely, these were just songs or artists I was listening to two years ago. I tried to avoid jarring combinations, instead trying to get a flow from one song to the next. There are some very soft, mellow songs on here, as well as some harder, more rocking tunes, but I tried to make that transition gradually. I tried to avoid overt "I love you" songs, because my relationship with my friend is far too complicated to inject a mixed signals mixtape. So most of the songs are light in theme, and some are flat-out comic. It's a good mix for a drive. Anyway...

Side A

1. "Bar Exam" by The Derailers
I'm takin' the Bar Exam, under a neon sign,
I'm gonna graduate when you're off my mind.
In this hony-tonk school, they got a hell of a band!
Drink by drink, I'm takin' the Bar Exam.
This choice dates the mixtape. My friend and I were both studying for the bar exam that summer. This is a great honky-tonk tune, perfect for belting out in the bar when you're waiting on those bar results. The link is for a page with the video.

2. "Back on the Chain Gang" by The Pretenders
I found a picture of you (oh-oh-oh-oh),
Those were the happiest days of my life.
Like a break in the battle was your part, (oh-oh-oh-oh)
In the wretched life of a lonely heart.
An explicit "I miss you" tune. There was a time when I didn't like law school very much, and my friend helped me hang in there until I realized I loved it. It's quite true that my friend is responsible for some of the happiest times of my law school years.

3. "The Pretender" by Jackson Browne
I'm gonna be a happy idiot,
And struggle for the legal tender.
Where the ads take aim, and lay their claim,
To the heart and the soul of the spender.
And believe in whatever may lie
In those things that money can buy,
Though true love could have been a contender.
Are you there? Say a prayer for the Pretender.
Who started out so young and strong,
Only to surrender.
I liked the cute pairing of a Pretenders song followed by a song called "The Pretender." But this song is also about the compromises we make in life. Settling down, getting a job, becoming concerned with things like houses and cars. I thought it was appropriate as we left the academic wonderland to start working.

4. "Vineyard" by Jackopierce
There's a girl over there, she's got mahogany hair,
And eyes of sweet amethyst.
I bow as she curtseys, doesn't look like she's gonna hurt me,
So I decide to add her to my list
Jackopierce is a jangly acoustic duo from Texas. When I was in college, it seemed like they were always playing on our campus or one nearby. "Vineyard" is probably their most well-known tune. There's no special significance in the words for me, but I just like it. It's a catchy tune, if a bit wordy. So of course the a cappella groups love it.

5. "Reunion" by Indigo Girls
I laughed as I said it, this is my situation,
It's not pictures of privilege, It's just self-preservation.
I don't want you to feel any obligation,
Would it be so funny to be free?
I'm not a lesbian, but I like the Indigo Girls, although I wanted to avoid the most obvious choices from them. This is just another catchy tune of theirs. To me, it's about saying "F*** it" to what anybody else thinks (which my friend always did), and I hoped the title might be a subliminal suggestion that we try to get together soon.

6. "Slackjawed" by The Connells
But then you're back and I'm guessing
It's not so bad at all,
But then you're back and I'm guessing,
It's not so bad at all,
And I've been standing slackjawed since you were here.
I've been standing slackjawed.
This is just a fun tune from the Raleigh-based Connells, who are the type of band you picture when someone says "college radio." If anything, I was probably feeling like a slackjawed yokel during my BarBri sessions.

7. "Sweet Jane" by The Velvet Underground
Some people they like to go out dancing,
And other peoples they have to work (just watch me now).
And there's even some evil mothers,
Well they'll tell you that everything is just dirt.
Nothing to get you slackjawed like a little Lou Reed. I guess this was another one about growing up and getting jobs ("Jack he is a banker, and Jane she is a clerk") and worrying about money and the real world and Stutz Bearcats.

8. "All Around the World, or The Myth of Fingerprints" by Paul Simon
Over the mountain, down in the valley,
Lives a former talk-show host, everybody knows his name.
He says there's no doubt about it, it was the myth of fingerprints.
I've seen them all and man, they're all the same.
This is one of those quirkier forgotten Paul Simon tunes; it's from the Graceland album. I may be reading way too much into this, but to me it's about how we're all alike and the things people point to as differences (here, fingerprints, but also other skin attributes like race) are really superficial but divide us anyway. In the song, there's an army post in the Indian Ocean because of the fingerprints (meaning we fight wars over them), and in the end "we must learn to live alone," which I think is kind of depressing, so maybe my interpretation is wrong. But I also like this song because of the lines "Well the sun gets weary and the sun goes down, ever since the watermelon." I would love to know what the hell that means.

9. "Solsbury Hill" by Peter Gabriel
To keepin' silence I resigned,
My friends would think I was a nut.
Turning water into wine,
Open doors would soon be shut.
So I went from day to day,
Though my life was in a rut.
Till I thought of what I'd say,
Which connection I should cut.
Peter Gabriel has said that this song was about his decision to leave Genesis and pursue a solo career. (I've heard that the "egale" who "flew ouf of the night" was Bruce Springsteen, whom Gabriel saw in concert at Solsbury Hill and inspired him to go solo.) To me, the song is about the feelings we get when we're contemplating a dramtic shift in course. On the one hand, the rut is comfortable, and we might not want to cut all connections, but you also feel like it's time to do something different. With regard to my mixtape, I thought my friend might be the type of person who decided to leave the law (not yet), and this was a way of saying that decision is okay.

10. "The Night They Drove Old Dixie Down" by The Band
Virgil Caine is the name, and I served on the Danville train,
Till Stoneman's cavalry came, and tore up the tracks again.
In the winter of '65, we were hungry, just barely alive.
My May the tenth, Richmond had fell, it's a time I remember oh so
My friend was moving to the South, and to my mind, this is one of those crucial, essential songs about the South. Which is almost humorous, given that it was written by a Canadian (the link is to a great essay on the song). I'm also a huge fan of Levon Helm, the drummer for The Band, who sings the lead part. (You might have seen Levon doing great acting work in small roles in Coal Miner's Daughter and The Right Stuff.) The song is about the end of the Civil War, and is terribly evocative of the feelings of defeat and frustration Southerners felt. Read the essay for more. And the version of this song during The Band's farewell concert, "The Last Waltz," is sublime -- here's the film, directed by Martin Scorsese, and here's the album.

11."Hallelujah" by John Cale
Baby, I've been here before,
I know this room, I've walked the floor,
I used to live alone before I knew you.
I've seen your flag on the Marble Arch,
But love is not a victory march,
It's a cold and it's a broken Hallelujah.
I'll admit it: this was the trendy pick. About the time I was making the mixtape, this song was in Shrek and was on "Scrubs." So it was in my head, although I had heard it before. I liked the Leonard Cohen original version better, but I couldn't find it when I was making the tape, so I went with the John Cale cover, which is good too. I can't really offer an interpretation of this one. If I had to do it over, I might use a different song here, but I wanted something mellow and bluesy to finish the first side, and this worked for that. Also, it was long enough that it fit well with the remanining time on this side of the tape.

Side B

1. "Feelin' Good Again" by Robert Earl Keen
I wanted you to see 'em all, I wished that you were there.
I looked across the room and saw you standing on the stair.
And when I caught your eye I saw you break into a grin,
It feels so good, feelin' good again.
This song is a perfect example of how important placement is on a mixtape. This is my favorite song out of this whole bunch, and I had a feeling my friend would like it best too (I was right). Keen is a Texas singer, akin to Lyle Lovett but not as famous because he never married Julia Roberts. This song is about how things were blue but are getting better. It never fails to put a smile on my face. It's a real pleasant pick-me-up tune that is an easy way to start increasing the tempo after the slowdown end of the first side. I didn't want a jarring change in style, and although this one is very different from "Hallelujah," it's not a bad transition. Plus, treating the B side as a separate entity, it's a good kick-off.

2. "Jimmy Carter" by Blue Mountain
There was joy throughout the nation at that great inauguration,
The GOP stood shaking in their shoes.
Serenaded by Willie, and toasted by Billy,
This President with honest peanut roots.
Well, he said I'll never lie to you, what's more he never did,
And though the times grew mighty tough he never flipped his lid.
So shake the hand of the man with a handful of love,
The one and only Jimmy Carter
When I heard this bluegrass tribute to our thirty-ninth President, I had to include it. It's fun and rollicking. I don't have any special place in my heart for Jimmy, but it's a good song.

3. "Whiskey River" by Willie Nelson
I'm drowning in a whiskey river,
Bathing my memoried mind in the wetness of its soul.
Feeling the amber current flowing from my mind,
And warm an empty heart you left so cold.
Another good drinking song, and a nice follow-up to the mention of Willie in "Jimmy Carter." This is Willie's traditional concert opener, during which he drops a huge Texas flag behind the band. (When I saw him, though, he opened with "Living in the Promised Land," and followed that with "Whiskey River.") I like this one, but its placement here was mainly due to my desire to pick an up-tempo country song that fit the time available.

4. "One More Chorus" by Battlefield Band
Next thing, the doors flew open, 'tis an ill wind that blows,
For there stood two policemen, and everybody froze.
Well, they marched up to our table, all menacin' and slow,
Saying, Play "The Mason's Apron," that's the only tune we know!
The Battlefield Band, I am reliably informed, is the Scottish Rolling Stones. They've been going for years and there's no end in sight. They play fairly often on A Prairie Home Companion, where I first heard this tune. It's a really fun song about a band that just won't leave the bar at closing time, beseeching the bartender to let them play one more song. If you like Scottish music -- bagpipes and fiddles and whole magilla -- you'll like the Battlefield Band.

5. "I Need a Miracle" by The Grateful Dead
I need a woman 'bout twice my age,
A lady of nobility, gentility, and rage.
Splendor in the dark, lightning on the draw,
We'll go right through the book and break each and every law.
I like the Dead, and this is a fun little ditty about the joy in the extremes in life: "It takes dynamite to get me up/Too much of everything is just enough!" Trust me, fellas, this is a good one for karaoke if they have it on the playlist.

6. "I Held Her in My Arms" by The Violent Femmes
I can't even remember if we were lovers,
Or if I just wanted to.
But I held her in my arms, I held her in my arms,
I held her in my arms, but it wasn't you.
I like the Femmes, and this one is a more obscure choice than "Kiss Off" or "Add It Up" or "Blister in the Sun." I wanted something energetic here, too. Gordon Gano is a little unclear who he's singing about in this one: "Everyone I ever knew, was so kind and coy/I was with a girl, but it felt like I was with a boy." Uh, does that mean he liked it or didn't like it? No matter -- the one he was with wasn't the one he wanted.

7. "Why Bother?" by Weezer
I know I should get next to you,
You got a look that makes me think you're cool.
But it's just sexual attraction,
Not somethin' real so I'd rather keep wackin'
An ode to sexual frustration and apathy. I'm probably as guilty as anyone of the sentiment Rivers Cuomo is expressing here -- why risk getting one's heart broken? I should note that the lyrics of this song don't necessarily apply to my relationship with my friend. After all, who says sexual attraction's "not somethin' real"?

8. "Saturday Night Fish Fry" by Louis Jordan
Now, if you've ever been down to New Orleans,
Then you can understand just what I mean,
Now all through the week it's quiet as a mouse,
But on Saturday night, they go from house to house;
You don't have to pay the usual admission
If you're a cook or a waiter or a good musician.
So if you happen to be just passin' by
Stop in at the Saturday night fish fry!
Man, what a fun tune -- the very definition of rollicking. Louis Jordan did this one in the 1940s -- he's well-known for "Beans and Cornbread" and "Is You Is or Is You Ain't My Baby?" You can hear the seeds of rock and roll being sown here. This one is about a fish fry party that goes haywire. The cops show up and everybody gets busted ("they put us all in that Black Mariah"), and let's just say there might be some racial undertones to the story. My favorite part is the pre-Miranda processing: "We headed for jail in a dazed condition,/They booked each one of us on suspicion." I love it: just "suspicion." That's all they needed.

9. "Cheerleader" by Dierdre Flint
If I could live my life in rewind,
There's a couple of changes I'd make this time.
Cause if I knew what was good for me,
I'd have been practicing splits from the age of three.
Oh, I got a masters, I got a car, I volunteer
And I can play the guitar.
But I'd trade it all in the bat of an eye
For a polyester skirt ridin' up my thigh.
Flint does funny songs and love songs and funny love songs. (My other favorites are "The Bridesmaid Dress Song" (I recommend it for Sherry) and "The Boob Fairy Never Came For Me." This one is parody, I hope. It's an homage to the queens of high school, the cheerleaders. I liked this one for the mix because my friend and I always liked to snidely remark on the "cool kids table" of the law school, since that environment was more like high school than actual high school was.

10. "Watching the Wheels" by John Lennon
People say I'm crazy doing what I'm doing.
Well, they give me all kinds of warnings to save me from ruin.
When I say that I'm o.k. well they look at me kind of strange,
Surely you're not happy now you no longer play the game.
This one, like "Solsbury Hill," is about dropping out of what you're doing. The difference is that Lennon doesn't feel too conflicted about chucking the rut. My guess is that Peter Gabriel got there eventually.

11. "Big Yellow Taxi" by Joni Mitchell
They paved paradise, and put up a parking lot
With a pink hotel, a boutique and a swinging hot spot.
Don't it always seem to go
That you don't know what you've got till it's gone,
They paved paradise and put up a parking lot.
A big hit in the '70s for Mitchell, revitalized not too long ago by Amy Grant. In the original, they charged the people "a dollar and a half" to see the trees in the museum, but Grant had to take inflation into account and changed it to "twenty-five bucks." It's kind of obvious, but I like this song because it reminds me to appreciate what I have.

12. "If Not For You" by Bob Dylan
If not for you, babe, I'd lay awake all night,
Wait for the mornin' light to shine in through,
But it would not be new, if not for you.
This was maybe the only overt "you're really important to me" songs on the mix. I don't know why I like it as much as I do, but it's one of my favorite Dylan tunes. Apparently he likes it too -- he's put it on several compilation albums and regularly plays it in concert (although not when I saw him). It's just a nice, light song about how someone can be your everything. And it's got a glockenspiel in it!

13. "Pink Moon" by Nick Drake
I saw it written and I saw it say,
Pink moon is on its way.
And none of you stand so tall,
Pink moon gonna get you all.
It's a pink moon,
It's a pink, pink, pink, pink, pink moon.
Not exactly the wordiest lyrics. You might remember this from (I think) a Volkswagen commercial, which I'm sure was my inspiration. I have no idea what it means. It's etheral, and I really like having it play when I'm in the car and the moon is out and there's no traffic...kind of like the commercial. Damn you, Madison Ave.!

14. "Swimming to the Other Side" by Pat Humphries
We are living 'neath the great Big Dipper,
We are washed by the very same rain.
We are swimming in the stream together
Some in power and some in pain.
We can worship this ground we walk on
Cherishing the beings that we live beside.
Loving spirits will live forever
We're all Swimming to the Other Side.

I am alone and I am searching
Hungering for answers in my time.
I am balanced at the brink of wisdom
I'm impatient to receive a sign.
I move forward with my senses open
Imperfection it be my crime.
In humility I will listen,
We're all Swimming to the Other Side
(The link above is for an NPR story on the song; here's a direct link for lyrics and more.) This is a really powerful song. Pat Humphries is kind of a female Pete Seeger -- liberal, activist, songwriter. When you know that, it's easy to infer some kind of "Grapes of Wrath" socialistic message in there, but I think it's open to other interpretations. I think it could easily be seen as a Christian allegory. I think it's also about any search for knowledge and meaning in one's life. I'll leave it to you to deduce which I was hearing. But it's one of those songs that everybody can find themselves in. I'm sure that I felt "humility" and "imperfection" as I was finishing law school. Listen to the NPR story for more, because they explain it much better than I could, especially the way the chord progression draws you in. They also have a link to a cover of it with more instruments, a beautiful version. I thought this was a nice way to end the album, with a message of faith and perserverance and understanding and compassion. And if your tape player has an auto-repeat, it's time to start drinking with the Derailers again!

OK, wow, I had no idea that this would mutate the way it did. I started a few weeks ago, compiling links for these songs, and then every once in a while I would add a little. And now this. I guess I just wanted to have some kind of documentation for my last mixtape. You can see I put a lot of thought into my mixtapes, and I didn't even get into things like figuring out the time and the struggles I had over what to do when something wouldn't fit. Remember, I was doing this all on tape instead of with a CD burner, which made the math harder. And it required me to hit "pause" a lot while I switched out the songs. A delicate process. But it sure beat studying for the Bar that summer.

My next big project: What to put on my first mix CD.

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