More on the Clerkship from HellMike Rappaport

Ilya Somin writes about my post on the Clerkship from Hellover at Volokh, and some of the comments are interesting. Let me make four points in response to thepost and the comments.

First, one commentator appears to suggest that my choice waseither to quit or to keep quiet about the clerkship. But why would that be? I chose to remain in the clerkship for avariety of reasons, but mainly because I thought it would help my career. Why should I be forced to bear the costs ofquitting in order to reveal truthful information about my clerkship?

Second, another commentator compares me to Ed Lazarus, whosome have argued revealed confidential information about his clerkship. But this is absurd. I did not reveal any confidential information. I merely revealed that several Sloviterclerks did not like the clerkship and that my co-clerk had quit. This is not confidential information, and ifit were deemed confidential information, that would represent an abuse of theconfidentiality rules.

Third, I have often wrestled with the question whether Ishould have revealed this information sooner. On the one hand, the information might have been helpful to others. Conspiracies of silence can be quiteharmful. On the other hand, lettingsleeping dogs lie is often the best policy. In the end, I only revealed the information after Chambermaid had beenpublished and the author had let it be known it was based on JudgeSloviter.  At that point, it was more than 20 years after the clerkship.  In retrospect, I believe therewas a strong argument for revealing the information sooner.   

Finally, Ilya raises the question of how information aboutjudicial tyrants can be publicized. Onepossibility is simply to list whenever a law clerk quits his or her job. While one or two quits might be innocent, apattern would be revealing, especially when supplemented with gossip. One Volokh commentator mentions that manyclerks resigned from their clerkship with Judge Irving Kaufman of the SecondCircuit. At law school, I knew thatabout Kaufman everyone did but I had no knowledge about Sloviter. (Interestingly, my two co-clerks did knowthat she had a reputation for being a very tough boss, but they took theclerkship anyway, because their wonderful interview with her (mistakenly)convinced them that the reputation was undeserved.) As I remember it, when I started theclerkship in 1985, three Sloviter clerks had quit in the six years she hadbeen a judge. My co-clerk made it 4 in 7years.