'The Power Of The Judicial Assistant/Law Clerk: Looking Behind The Scenes At Courts In The United States, England And Wales, And The
Netherlands' by Nina Holvast in (2016) 7(2)
International Journal For Court Administration comments
Although largely invisible to the public, behind the scenes, judicial assistants/law clerks frequently play a vital role in the process of adjudication. Yet, especially outside of the U.S., little is known about their role and duties in the judicial decision-making process. This article provides insight into the organization of the employment and the duties of judicial assistants in three different jurisdictions: the U.S., England and Wales, and the Netherlands. In particular, this article aims to gain an understanding of the effects different organizational structures have on the potential influence of assistants on the judicial process and to observe what restrictions are employed to prevent assistants from wielding too much influence.
Holvast argues
During the hearing, the main public phase of the judicial process, the judge is literally and figuratively positioned at the center. Judicial staff members are usually absent or only present in the background to record the proceedings. Behind the scenes, however, judicial staff members play a vital role in the judicial process. They perform various administrative duties and, in addition, they can assist judges in their adjudicative responsibilities. Virtually all judicial systems employ these types of staff members; however, the position that they occupy in the judicial process and the duties they perform vary significantly from jurisdiction to jurisdiction. In this article, the terms “judicial assistant” and “judicial staff member” are used to describe staff members (in the US also called law clerks) who assist judges in the adjudicative content of their work, but who do not perform any adjudicative duties on their own. This should not be confused with the function of Judicial Assistant (in capital letters), which exists in England and Wales or judicial assistants employed at some American courts.
Most research on this topic originates from the United States, and concentrates predominately on law clerks in the U.S. Supreme Court. This research reveals that law clerks play an important role in judicial decision-making and that their abilities to influence are far-reaching. These findings are remarkable, as law clerks are not appointed as adjudicators, but are intended to provide research and support to the judiciary. When a substantial portion of judicial duties are in fact performed by judicial assistants (in this case law clerks) who have not completed a comparable training or gone through the same selection process as judges and who are not subject to the same institutional safeguards (e.g. life-tenure) to ensure their impartiality and independence, this raises fundamental questions about the legitimacy of this allocation of duties (see on this matter also section 4 of Bieri’s contribution to this issue). The probability that law clerks and other non- judicial personnel influence judicial decision-making is an ongoing topic of discussion. It has been a concern of lawyers and academics in the U.S. for decades. Whether the assistants’ influence is regarded as “undue” depends on the perspective one has on adjudication. When taking a classical Rule of Law perspective on adjudication, the involvement of non-judges is perhaps more frequently regarded as “undue” than when one endorses a pragmatic or economic view on adjudication.
Besides issues concerning differences in training, selection and institutional safeguards, the prospect of diluting one individual’s sense of responsibility for a judgment when large portions of the judicial work are performed by subordinates is also mentioned. In that vein, Posner observes a loss when judgments are “ghostwritten” by law clerks, as clerks are bright, but inexperienced and “judges fool themselves when they think that by carefully editing, they can make a judicial opinion their own.” Posner furthermore argues that extensive delegation could result in more uniform and legalistic judgments, as law clerks would not have the authority and experience to look beyond the (case) law. In addition, Kronman claims that the preparation of memos on cases by subordinates, commissioned and reviewed by a judge, can threaten the deliberative imagination of judges and would make the judges’ perspectives on cases essentially “monocular”. A particularly prominent fear in the U.S. is that of law clerks pursuing their own (political) goals instead of judges’ goals, thereby steering the political outcomes of cases.
Notwithstanding these concerns, it is widely acknowledged that law clerks have also played a key role in reducing the caseload crises that arose in the U.S. in the 1980s. Given that many countries face rising caseloads and decreasing judicial budgets, delegating certain duties might be ineluctable (see also Bieri in this journal). Judicial assistants can contribute to the efficiency of the adjudication process, and, under certain conditions, also to the quality thereof. According to Edwards the above concerns are, in fact, “much ado about nothing.” Competent and conscientious judges will provide their law clerks with instructions and will “not allow an opinion to issue in their name until the words constitutioning the opinion precisely reflect their views on the proper disposition of the case.”
In most judicial systems outside the U.S., there is remarkably little knowledge regarding the role of judicial assistants. In those judiciaries, this topic is not a prominent issue of discussion. However, many of the previous concerns could apply equally well to judicial assistants in courts in those jurisdictions. In order to attain greater insight into the issue of delegation of judicial duties to judicial assistants, this article investigates several ways in which judicial assistance is organized in three judiciaries. The central question is: in what ways can the employment of judicial assistants be organized and what are the consequences thereof in relation to the ability of judicial assistants to influence the judicial decision-making? To keep the overview, this article examines only a sample of the existing organizational structures in these judiciaries.
In the next section, the methodology of the article is discussed. Following that section, the selected judicial assistant models are analyzed. Thereafter, the article introduces six features by which judicial assistant models can be distinguished and the ways in which these factors affect judicial assistants’ ability to influence are explored. This is followed by the conclusion which recapitulates the main features that result in or limit the influence of assistants and emphasizes the importance of formalizing their role in the adjudicative process.
Holvast goes on to comment on 'six key features that distinguish the roles and positions of judicial assistants' -
1. Reasons for employing judicial assistants
2. Ratio of judicial assistants to judges
3. The qualifications of judicial assistants and the terms of their employment
4. Duties of assistants and their participation in various stages of the judicial process
5. Judicial assistants’ assignment to individual judges or the entire court
6. Judicial assistants working with professional or lay judges
4.1. Reasons for Employing Judicial Assistants
The first aspect that determines the judicial assistants’ role is the reasoning behind employing them. With regard to U.S. law clerks, the rise in caseloads is the most frequently cited reason for the creation of law clerk positions and for continuing to expand their number. It is also cited as a motivation for the increased allocation of duties to law clerks. This is essentially a motive based on efficiency, as employing assistants is assumed to save judges time. It enables them to handle more cases than would be possible without assistance. A backlog of applications for leave to appeal was also cited as the main reason for starting to employ Judicial Assistants in England and Wales. The Dutch judiciary is increasingly focused on the efficiency of adjudication too and the creation of models with which to delineate the time that judges and assistants spend on cases, reveals a consciousness about the economic benefits of employing assistants. Magistrates’ Courts have also been repeatedly evaluated on their costs, but these studies appear to focus on the (in)efficiency of the employment of lay judges (instead of professionals) and not on the clerks.
Ward and Weiden conversely state that the establishment of the law clerks position is actually an outgrowth of the apprentice model of legal education. The apprentice component and the unique experience of gaining a deeper understanding of the judicial decision-making process are still mentioned by law clerks, and by Judicial Assistants too, as reasons for applying for the position. Judges frequently emphasize this aspect as well. The Dutch judicial assistant model also originates in an apprenticeship model, but this model was abandoned in the 1950s. From then on, the educational element seems to have vanished. Currently this is of relatively little importance, just as it is for Magistrates’ clerks.
A third motive for employing judicial assistants is their plausible contribution to the quality of adjudication. Research contributions of assistants and their involvement as sparring partners clearly help improve the adjudication. All assistants seem to perform these duties to a certain degree, although the processes work differently. The impact on quality is perhaps most obvious at Magistrates’ Courts, where it is the clerks’ responsibility to advise the Magistrates on questions of law. Law clerks and Judicial Assistants mainly serve as sparring partners for the individual judges in their chambers. Dutch judicial assistants are frequently involved in the discussion amongst judges in deliberations. Furthermore, most assistants present their views on cases in memos, which can serve as vehicles for discussion.
Finally, Magistrates’ clerks and judicial assistants in the Netherlands also perform several administrative and recording tasks, independent of the judge. Ensuring that these tasks are performed is clearly an additional reason for employing the assistants.
The amount of influence that assistants can have in the recording role is probably minimal. The prospect of wielding (undue) influence is more prominent when assistants are employed for efficiency reasons. Especially when this means that the number of assistants per judge is high. When assistants are employed for reasons of quality improvement, it is actually intended that they have a certain influence on the content of judgments. In this case, the diffusion of responsibilities between judges and assistants is especially likely to become an issue.
4.2. Ratio of Judicial Assistants to Judges
Another aspect in which judicial assistant models differ substantially is the degree to which judicial assistants are employed. Employing more assistants increases the likelihood of them having influence. It may turn judges into managers who spend most of their time supervising and coordinating assistants.
In the Dutch trial courts, judicial assistants generally slightly outnumber the judges. The judicial assistants’ role is particularly important because of the significance of court records for the process of review on appeal. In the U.S., the largest numbers of laws clerks are positioned at the top of the judiciary. The higher the position of a judge, the more law clerks will be assigned to him or her. The number of law clerks for every Supreme Court Justice is four. Judges at other federal Courts and State Highest Courts have about two to three judicial assistants.
It is remarkable that the U.S. judiciary has evolved into a system with high reliance on law clerks at the highest level courts, whilst professional judges of its predecessor system in England and Wales, until very recently did not attain any kind of judicial assistance. At present, the English Court of Appeal (38 judges) and Supreme Court (12 judges) still both employ a modest eight judicial assistants. This results in English and Welsh judges having to perform most of the work themselves. The duties of Judicial Assistants are also rather limited and do not include judgment-drafting. This is different from Magistrates’ Courts, where every panel of Magistrates is assisted by one Magistrates’ clerk to provide them with legal advice.
4.3. The Qualifications of Judicial Assistants and the Terms of their Employment
The study of judicial assistant models in this article highlights roughly two types of judicial assistants in relation to terms of employment, experience, and credentials. The first type is represented by the U.S. law clerks and English Judicial Assistants in the Courts of Appeal and Supreme Court. These are young, recently graduated lawyers who regularly only occupy the position for a brief period of time, this type of assistant is referred to as temporary assistants. The other type is represented by the Magistrates’ clerks and Dutch judicial assistants in the lower level courts and this type is referred to as the career assistant. These judicial staff members are not necessarily young lawyers, they can be older as well. Moreover, they are employed by the courts for an indefinite time. In the past, these assistants would typically not be legally qualified, but both judiciaries tightened the entry requirements and currently most new assistants are qualified lawyers.
The choice for temporary assistants serves several purposes. First, it is said to be an important check to prevent undue influence, given that the short term law clerks will never fully master the job and therefore will not be able to consolidate considerable power. In addition, an important motivation for employing recent graduates is that these assistants can present the judges with the latest academic insights on recurrent discussions. By providing young lawyers the opportunity of a rather short clerking experience, the justices also assure themselves of getting the best students who are willing to work exceptionally hard during their year of employment. It also fits the notion of the position as an apprenticeship.
However, temporary assistant positions entail spending large amounts of time and effort on selecting and training new assistants. Selecting new assistants each year also comes at the expense of attaining continuity in the assistant model and in building expertise. The career assistants, such as the clerks at Magistrates’ Courts and the specific assisting position of staff lawyer in the Dutch judiciary, are employed for their legal knowledge and extensive experience. Furthermore, Dutch staff lawyers are, every so often, involved in producing court policies. Since these judicial assistants are increasingly legally qualified, their contribution to the quality of adjudication can be substantial. However, in the Dutch as well as the English and Welsh system, a lack of career perspectives is observed. This results in the threat of well qualified judicial assistants leaving the judiciary for better job opportunities elsewhere. Experienced assistants are also in a powerful position in relation to judges. Regarding Magistrates, Astor clarifies: “Most lay Magistrates spend half a day, or a day, in court once a week or once a fortnight. They are, in a sense, regular visitors to a complex organization which they play little part in running. It is the Clerk to the Justices and the Clerk's staff, who control this organization and who ensure that the hundreds of cases scheduled to be dealt with each day are properly processed.” This could also, to a lesser degree, be the case in the Netherlands. In particular, in relation to new judges, Dutch judicial assistants can have a powerful position. Evidently, this introduces the risk of career assistants having too much influence and judges relying too much on their expertise, thereby preventing judges from fully considering the merits of cases themselves.
4.4. Duties of Assistants and their Participation in Various Stages of the Judicial Process
When comparing the duties of judicial assistants, those of the Dutch assistants seem to be the most wide-ranging, as they include participation in all stages of the judicial process. A historically important responsibility of Dutch judicial assistants is that of creating the court records. Producing a correct record is in fact a shared responsibility of the judge and assistant. In the U.S. and England and Wales (except for in Magistrates’ Courts) administrative staff perform this duty. Recently, Dutch assistants also attained an important role in the preparations for hearings and in drafting judgments, thereby also becoming involved in the content of judicial decision-making. U.S. law clerks are also, to a large extent, involved in the judicial content. In the Supreme Court, their role is particularly far-reaching in the process of deciding what cases will be reviewed (the certiorari process), a feature which is not part of the Dutch mandatory review system. Using memos (in the review process or in preparation for oral arguments) results in the judge no longer being directly confronted with the plurality of claims of the parties but rather receiving a representation of the case from the viewpoint of a subordinate. This is likely to affect judges’ decisions. Kronman fears that this makes the judges’ perspective more monocular.
Similar to Dutch assistants, U.S. law clerks play a key role in drafting judgments. There is a risk, however, that this involvement inhibits the judge from reconsidering his intuitive first stance on a case. Furthermore, having the drafting of a judgment done by a subordinate could result in judges (and courts) creating more guidelines in order to assure that the assistants in fact write drafts in accordance with the judge(s)’ views. This could result in less attention for cases that might require deviation from the general directives. Unlike in the Netherlands, in the U.S. Courts of Appeal it is strictly forbidden for anyone other than the judges to enter the deliberation room. This rule limits the actual influence as well as the appearance of law clerks wielding influence. This is different from Dutch judicial assistants, who regularly are present during deliberations.
The duties of the two types of English judicial assisting staff members are different in many ways. The Magistrates’ clerks play a key role in the courtroom and during deliberations. An interesting observation of Darbyshire was that various court actors viewed court clerks to be more in control of the proceedings than the chair of the Magistrates’ panel. Magistrates’ clerks are also afforded various pre-trial judicial powers. Darbyshire claims that this extends the role of the Justices’ clerk too much. She argues that case management is a judicial task that should be performed by judges and not by clerks. Judicial Assistants assist judges primarily in preparing memos for applications for leave to appeal and, to a lesser degree, in preparing bench memos and acting as sounding boards. Although the function of Judicial Assistant is less than 20 years old, during its existence, the duties have expanded and the contribution of Judicial Assistants to the decision- making process seems to have increased. In England and Wales, judges appear to be less rigorous about the presence of Judicial Assistants at deliberations than in the U.S. However; they are more restrained in giving assistants a role in drafting judgments.Although the Judicial Assistant scheme was loosely based on the U.S. law clerk model, there is a strongly held opinion amongst judges in England and Wales that Judicial Assistants should not attain the influence that American Law Clerks appear to have.
4.5. Judicial Assistants’ Assignment to Individual Judges or the Entire Court
The fact that, in common law judiciaries, Appellate Court judges are more adjudicating as individuals (being able to display their individual views on cases through dissenting and concurring opinions to support or deny the final decision) rather than anonymous representatives of the court, is reflected in the manner in which assistants are employed. That is, they are assigned as individual assistants to the judges rather than as assistants to the entire court. England and Wales began their Judicial Assistant model by constructing a pool of assistants available to all judges; however, soon after its creation, this was altered and assistants were assigned to individual judges. This type of arrangement results in assistants frequently having personal relationships with their judges. Peppers indicates several monitoring mechanisms which U.S. Supreme Court justices apply to control the work of law clerks and to prevent them from shirking or wielding undue influence. Some judges, for instance, reduce the likelihood that law clerks have different political preferences by taking this aspect into consideration in the selection procedure. They also monitor law clerks by having products (such as draft-judgements) reviewed by multiple clerks. The personal relationship that many law clerks have with the judges also enhances their loyalty to the judges. The assignment of assistants to individual judges also creates a situation in which judicial assistants associate themselves with professional judicial values held by the specific judge they are supporting and thus may be less concerned with organizational aims.
In the Dutch judiciary, where judicial assistants work with various judges, the assistants occasionally obtain a role in maintaining the consistency of judgments. Perhaps this setting also results in them being more concerned with upholding organizational aims, such as court efficiency. In all judicial systems, the judicial assistants are employed by the judicial service. As a consequence, the management of the court has more power over them than over the judges, who obtain special provisions to ensure their independence.
Like Dutch judicial assistants, English Magistrates’ clerks are not assigned to a specific judge. Their employment alongside part-time lay judges places them in a special position. Astor observes a process of balancing organizational aims and procedural rights and legitimacy which Magistrates’ clerks experience when assisting unrepresented defendants.
4.6. Judicial Assistants Working with Professional or Lay Judges
Panels consisting exclusively of adjudicators without legal training mark the role of the Magistrates’ clerk as a rather unique one. It is exceptional to have adjudication exclusively by lay judges; most countries that employ lay participation utilize systems that group lay and professional judges. In the English and Welsh system it is the judicial assistant who is required to enhance the legal knowledge of the panel. This is different from judicial assistants who work with professional judges; in that situation, the judges normally retain more legal knowledge than their assistants. A study on Magistrates’ Courts revealed that Magistrates’ justices seek advice more frequently than the professional District judges and the former regard the contribution of Legal Advisers more highly as well. Their superior legal knowledge combined with their greater experience with court procedures provides Magistrates’ clerks with a unique space to wield influence, which is very different from systems in which assistants are supporting professional judges. Given that Magistrates’ clerks provide legal advice to justices who are not legally qualified, it seems that decisions on law and procedure “[are] invariably that of the clerk”.
