Confessions of a Bad Apple

Confessions of a Bad AppleAlex Kozinskit "People of the same trade seldom meet together, even for merriment and diversion," Adam Smith observed, "but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices."'So too it is with federal judges, particularly during the early part of each year when they select their law clerks.Preoccupied with the task of sorting through stacks of resumes, burdened by time-consuming interviews, distracted from the weighty responsibilities of writing opinions and dispensing justice, frustrated by the need to make important staffing decisions on the basis of incomplete information, federal judges complain bitterly to each other about the shortcomings of the selection process and start musing, dreamily, that there must be "a better way."And a better way there would be, they claim, if not for certain renegades within the ranks, certain unrepentant vigilantes who flaunt their Article III independence by ruthlessly undermining any and all reform efforts. 2 As a consequence, students must interrupt their law studies to fly all over the country in mid-semester, professors are deluged by requests for letters of reference when they have barely finished grading first semester exams; and judges are forced to make premature, half-baked decisions and to behave in an undignified, noncollegial and downright rude manner.A few bad apples spoil it for everyone.When they complain about the bad apples, they're usually talking about me, although I'm far from alone.Nevertheless, as the self-appointed spokesperson for this bushel of spoilsports, I will undertake to answer the charges.As I see it, there is nothing at all wrong with the current law clerk selection process; everything is hunky-dory.Efforts at so-called reform cannot, will not and should not succeed.The Shangri-la that many of my colleagues envision-the "orderly process that comports with the seriousness of the job and the dignity of the relationship between judge and clerk" 3 -is neither attainable nor desirable.Efforts to impose an artificial structure on law clerk selection can only exacerbate the unavoidable tensions, burdens and disillusionments of a process t Judge Kozinski sits on the United States Court of Appeals for the Ninth Circuit.He authored this