Who Judges The Judges?

This morning I woke up before dawn furious about something that happened to me almost thirty years ago. I don’t know why; maybe I dreamed about it. I stumbled into the bathroom and splashed cold water on my face. I was hot and flushed.

I’ve been thinking all those years about what happened to me as a rookie lawyer. More than half of my life has gone by since then. I’ve grown up, had a long career, gotten married, had kids, watched them go to college. It’s growing harder to remember what the events felt like, other than the durable core of fear and anger and abandonment. It’s not easy, at fifty-three, to remember what twenty-five felt like. It’s not going to get any easier.

The key players are all dead — the most important one for decades. I’ve gotten advice from people I respect, for and against, and even done due diligence into whether any binding rules prohibit me from telling the story.

I have decided to tell it.

A Clerk’s Dilemma

After law school, when I was a young and naïve twenty-five, I clerked for a federal judge. He was a kind and decent man, a respected judge of long standing, sincerely concerned with fairness. Lawyers liked him. He was popular with other judges, particularly those of his vintage. Defendants he had sentenced would send him Christmas cards — not because he was lenient (he wasn’t) but because he acknowledged them as people. His staff cherished him, and he them. He was generous with praise and with time, spending many a long afternoon telling us courtroom war stories and explaining his thinking on matters we helped with.

But this good man had a serious problem. He was a drunk. I could be more genteel about it, and use all the modern circumlocutions, but this man I respected — and whose respect I craved — was a high-functioning alcoholic whose functioning was steadily declining. During the year of my clerkship the decline accelerated. He was drunk during the day more often. He was drunk on the bench more often. He was drunk driving to and from work more often. Federal judges have an enormous workload, and undone work piled up. Motions and even bench trials awaited rulings.

Some of us — some of the judge’s youngest staff — grew increasingly concerned. We went to the judge’s more senior staff, some with him for decades, for advice. They were passive about it. They were used to it. Their relationship with him was set; they were not comfortable challenging him. This was new to us, but it was not new to them, and I don’t believe they could see that the decline was accelerating.

We weren’t comfortable confronting the judge either. But we did challenge him. We, two kids, started by talking to him honestly. This was conceivable only because of the kindness and respect he had always shown us. We explained gently that we were worried for his health and reputation. We asked if we could help. We asked how we could support him. We asked if he would consider getting help.

He wasn’t angry. He was, as always, gentle. He said he would get help. He admitted his wife had been worried as well. He told us not to worry, that things would change for the better.

They didn’t. He kept up appearances for perhaps a few days. I don’t believe it was his fault. It’s a disease.

An Appeal To Authority

Next, we went to the judge’s wife. That was excruciating. She agreed he needed help. But she didn’t know how to make him get it. She suggested that maybe his friends, his fellow judges, could convince him.

We thought so as well. We hoped.

We started with one of our judge’s closest friends on the bench, a very senior and respected jurist. We shuffled timidly into his dark, cavernous chambers and broached the subject as well as we could. He was not widely seen as approachable, and with good reason. But he didn’t get angry. He understood. He was sympathetic. He said he was, worried too. He shook our hands, firmly, warmly. He hugged my female colleague. He said he would look into it, and talk to our judge, and that we should go speak with the Chief Judge of the district, another friend of our judge. He promised he’d help.

We went to the Chief Judge. He, too, was not renowned for cordiality. But he, too, was open. He heard us out. He acknowledged our concerns. I asked whether he and the other judges could use their friendship, or even his authority as Chief Judge, to get our judge into treatment. Certainly, he agreed, it was a problem if our judge was destroying his own health. Certainly, he agreed, it was terrible for our judge to destroy his well-deserved excellent reputation by being visibly drunk on the bench. Not to mention the prejudice to litigants! He and the other judges would do something about it. Things, he said, would get better.

They didn’t.

The Ultimatum

Our judge continued to deteriorate. He came to work less often. He drank more when he attended. He cancelled or delayed vast numbers of hearings and delayed ruling on more and more matters. I’m not sure how his court clerk handled the criminal cases with Speedy Trial Act issues, but I know we simply kicked civil cases down the road. It was clear that it was growing more and more difficult for him to face taking the bench, that he dreaded it. We had more conversations with him. We begged. He kept on. I reached out to the first judge we’d spoken to, and the Chief Judge. They said they’d check into it. I don’t know if they did anything.

Finally a fateful Monday arrived. Civil motions had been piling up and the hearings on them delayed, and at the judge’s request we’d moved them all to one day. We worked long hours to draft memos on each motion and to be responsive to our judge’s wishes. The week before, he almost seemed to look forward to the day of hearings, to working through the backlog and making good decisions. But on that Monday he was late. A courtroom packed with lawyers awaited him. When he arrived, he was reeling drunk. We tried, unsuccessfully, to convince him not to take the bench. He angrily insisted. I heard murmurs in the courtroom. The judge, like many who suffer, was very practiced at maintaining and pretending, but his inebriation was noticeable.

I called the Chief Judge’s chambers, reached his secretary, begged her to let me talk to the Chief Judge, begged him to come and do something. The Chief Judge arrived. He peeked into the courtroom. He listened for a while to proceedings, the audio of which were piped into chambers. He shrugged. The judge seemed okay to him. What, exactly, did we want us to do?

We couldn’t think of anyone else we could talk to. We couldn’t talk to lawyers in the community because they might have a case before the judge and an obligation to report the situation. I spoke with a trusted mentor who told me I shouldn’t throw my career away and that if I tried to do something, judges would think I was a traitor and overly judgmental, that they’d snipe at me about it every time I was in a courtroom.

We young staff members talked, and made a decision. The next day we told the judge that if he didn’t go on leave and get treatment we were quitting. Because of the way chambers operate, losing us would make it almost impossible for him to manage his calendar without replacing us, which would call attention to the situation.

He was angry. But he wasn’t even angry in a defiant way; he was angry in a beaten-down hurt way, a kicked-dog way, a helpless way. He told us this would be the end of our relationship. It would be the end of him. We were throwing him away, he said. We left his chambers, shaken. I called his wife and told her what we had done. She wept. I vomited into a trash can in the bathroom down the hall from his courtroom.

Before we confronted the judge, we told the Chief Judge what we were planning to do. Well, he said, if that’s what you think you need to do, so be it.

Life Goes On

Our judge took leave and never returned full time. I don’t think he got help. I don’t think he improved. If that was our goal, we failed. I worked for a variety of other judges as a relief clerk, including for the judges whom I had begged for help. My clerkship ended, and I moved on. Fortunately I already had a job. I tried to forget it. I tried not to think about it. It was hard when I appeared before those judges, his colleagues, his friends, who had promised to help. I wondered what they thought of me, how they judged me. Was I a traitor? Was I some kind of busybody?

They’re all dead now. My judge died fairly soon after my clerkship. Alcohol was a factor. I saw the judges I had begged for help at his funeral, black-suited instead of black-robed, and shook their hands somberly. They’ve since passed, which is one reason I feel I can tell the story. I spent many years and many hearings in their courtrooms before they died.

I don’t know if we did the right thing. I don’t know if we should have done it a different way. Did we have his best interests at heart? Was this self-dramatizing, self-indulgent? Did I take someone else’s problem and make it about me? Did I have an obligation I didn’t keep? I don’t know.

These were men of the Mad Men era, for whom drinking meant something different. A liquid lunch and a buzz in the afternoon were more socially acceptable. A man, it was understood, could do his job two or four drinks in, if he knew what he was doing. Somewhat too frequent drunkenness was a foible, like a loud laugh or a temper. It wasn’t something that friends would confront each other over. It wasn’t something that would lead you to exercise your authority, perhaps as Chief Judge, to address. Friends wouldn’t do anything to threaten another friend There was a social consensus about how to handle these things, and it was gentle suasion, and you couldn’t expect men of a different generation to escape a lifetime of social norms to do otherwise. You can’t impose the values of one time on another.

Those are the things I tell myself.

I tell myself those things because if I don’t, it get too angry. I get angry that these judges — these incomprehensibly powerful and influential people — left this situation for kids to navigate, let kids risk their careers, left the ugly dirty work and the hard decisions for kids. Sometimes, when I think about what a privilege and pleasure it can be to train and mentor young lawyers, the memory surges back and it makes me angry. I remember the men’s room in the hall on Spring Street, the flickering light on the ancient black and white tile, the art deco fixtures, the feel of the rusted rim of the metal trash bin on my palm as I vomited into it, wondering what would happen next, to my judge, and to me.

And sometimes I get angry when I encounter public discussion of judicial misconduct, and especially discussions of whether and how judges should police themselves.

Police themselves? Police themselves? I don’t even know what the fuck you’re talking about.