Judicial Clerks' Personal Opinions: An Oxymoron?

On Thursday Judge Lynn Adelman spoke about judicial clerks and how their philosophies and opinions inform their work for judges. Judge Adelman is a Columbia Law alum ('65) and was a Wisconsin state senator from 1977 to 1997. He was nominated by President Clinton to the U.S. District Court for the Eastern District of Wisconsin in 1997.

Judge Adelman believes that while there is generally no litmus test for hiring clerks, often the best working relationships will be between judges and clerks with similar orientation. Group affiliations may give the judge a clue as to whether there would be working chemistry, but often the hiring process is still a gamble on both ends. When the clerk and judge have complimentary attitudes, the clerk will be well situated to help the judge push a decision in one direction or another.

He gave examples from two cases where his clerks provided useful insight on politically charged issues. In the first, a case of substitute counsel, the state trial court did not give the defendant's new lawyer adequate time to prepare his argument. A clerk interpreted the state court's holding as an unreasonable interpretation of the facts, and this interpretation allowed Judge Adelman to reverse where he felt justice so demanded.

The second, a case of fraud and sentencing guidelines, hinged on the interpretation of "advisory" in United States v. Booker, 543 U.S. 220 (2005). One of Judge Adelman's clerks aided him in maneuvering around a decision by a former Scalia clerk, district judge Paul Cassell. His clerk penned a refutation of overly strict adherence to the formerly mandatory guidelines, which allowed for a more contextual analysis of the situation at hand before sentencing.