4th Feb 2015 from TwitLonger

Justice Kagan on What Her Clerks Do (Northwestern Law, Feb. 3 2015)

Kagan on her law clerks (38:18): One of the great parts of the job, and especially for those who were teachers, is having these four people. They're really smart and really eager and they want to be there all night and do everything. So--I do use them. And sometimes they are there all night. Certainly, they do a lot of research for me. I talk to them constantly. I talk to all of them about every single case. We get together in my office, the five of us. There's always one lead clerk, but I want to hear from everybody. I want them to disagree with each other. I want to hear what opposing arguments sound like.

The only times I've been frustrated with my clerks are when I felt as though my clerks were echo chambers, and they were just sort of repeating--everybody thought the same thing, and everybody thought what they thought I wanted to hear. and I really don't want to hear that at all. I actually try to hire a spectrum of different opinions--people who I think will approach cases differently--differently from each other and differently from me, and I want to hear a lot of different views. And I want to hear people arguing with each other. It's part of the way I come to a decision. So that's one important part--

Dean Rodriguez: So let me just interject--you've had conservative law clerks?

I have--certainly so. And I like that experience. There have been a couple of years where that hasn't been the case, where I felt like everybody was like me or to the left, and I thought that that was bad. So, I try to hire clerks from lots of different kinds of judges, and will continue to do that.

The other thing I use them for is to help with opinion writing. I do my writing basically by myself, but I do use--I make them write a draft anyway. I say to them at the beginning of the job--you have the worst job in the building. You're not going to see your sentences in the US reports, but you're going to have to write a draft anyway. Because a draft, for me, is very helpful in terms of stimulating my own thought process, serving as a kind of launching pad for me to really think through a case. Serving as a kind of research memo, essentially; something that collects all the sights.. and something that shows me how one person worked her way through a case, so that I can see what works and what didn't work.

Then I sit down and I start a new document--I start an opinion on my own and I write my way through it. I have all the briefs there, I have all the cases there, and I write my way through it. And I do that--I have had clerks who are great writers, but they're not writers that sound like me, and I want a Kagan opinion to sound like a Kagan opinion, across opinions, across years.

The other thing is, for me--and I'm sure this is different for different people--but I'm never going to understand something as well by editing somebody else's work as I do by writing it myself. There are a thousand things I think I would not realize are real issues if I were just editing, that I do realize as I try to work through the opinion in my own mind.

But then I turn back around and I give my draft of the opinion to my clerks, and I really tell them to really mark it up. And we go through several different rounds, lead clerk first, then the rest of the clerks. But their job is to improve everything about my opinion. Certainly to stop me from making any mistakes, but to make it better and to make it more accurate and better-written, and all the different kinds of ways. And I love working with them on that.

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