June 11, 2021 | Season 2, Episode 3 | 21:05
This episode is all about the value of clerkships.
Judge Andrew Oldham of the U.S. Court of Appeals for the Fifth Circuit and David F. Levi talk about the clerkship experience and how clerking can contribute to a fulfilling career in the law. Judge Oldham also talks about clerking for U.S. Supreme Court Justice Samuel Alito and Judge David Sentelle of the DC Circuit and the impact both judges have had on his life.
This transcript has been lightly edited for clarity.
David F. Levi: Welcome. Hello, and welcome to everyone. This is Judgment Calls. I’m David Levi. I’m Director of the Bolch Judicial Institute at Duke Law School. We are so fortunate today to have Judge Andrew Oldham from the Fifth Circuit Court of Appeals. His chambers are in Austin, Texas. He was appointed to the bench in 2018 and he’s had a very distinguished career. He’s done a lot in his, I would say, from my perspective, young life. Before his appointment, he had a varied career in government and private practice. He was general counsel to the governor of Texas. He served as the Deputy Solicitor General for the state of Texas. He was an attorney-advisor in the Department of Justice, Office of Legal Counsel. He was an appellate lawyer in private practice at one of the top DC law firms. He served as a law clerk to Supreme Court Justice Alito, and before that, he was a clerk to Judge David Sentelle of the US Court of Appeals for the DC Circuit. He has a BA from the University of Virginia with highest honors. He has an M.Phil, first class, from Cambridge University, which is quite a distinction, and he has a JD magna cum laude from Harvard Law School in 2005.
So, you do well in law school and you graduated in 2005 and then you had two clerkships and both of the judges that you clerked for have Duke connections because Justice Alito’s son, Philip, was a graduate of Duke Law School and Justice Alito has done quite a bit of teaching at Duke, and Judge David Sentelle is a North Carolinian. He went to UNC, we can’t fault him for that, but he was on the Board of Visitors of Duke Law School for a long time. He’s hired many of our graduates. And, of course, he can sing the entire Johnny Cash repertoire. They’re both remarkable people, and that must have been great.
Judge Oldham: Oh, it was incredible. I mean those two men and the impact that they had on my life is indescribable with words in the English language. I mean and not just because of where I am now. I would have said the same thing five years ago. The way they approach their jobs, the way they approach their families, the way they think about the law, the way they think about American history, English history. Their just deep, rich profound understandings of the rule of law, I just, I find both of them such inspirations.
I often tell my law clerks at the beginning of our terms together that I hope that one day I will be a 10th of the man and a 10th of the judge that those two are. In that if I can make their clerkship experiences a millionth as valuable as mine was that I will have considered the year a success because they just forever changed my life, touched my heart, inspired me every single day. I was just thrilled, thrilled to be in the office with them, have a chance to learn from them. They were amazing.
David F. Levi: Well, they must be so proud of you as well. Do you continue to have contact with them from time to time?
Judge Oldham: Oh yeah, well, you know, one of the great things about being on the Fifth Circuit is Justice Alito is now our Circuit Justice. I used to refer to him as my boss, but now he’s like my boss in multiple ways. It’s kind of neat. So yeah, it’s wonderful to be able to talk to him about things related to work and not related to work, right. It’s a whole new level of relationship and the same with Judge Sentelle. I still call Judge Sentelle from time to time, often it’s to say, “Hey, I had this case that involved whatever provision of the whatever application of the APA. It made me think of our time together. You might see I cited this opinion. Look at this that you may recall from our time together.”
And it’s just it’s a wonderful feeling of the kind of the connection of our lives. How closely they’ve been sort of interwoven. I feel like it’s only enriched my relationship with both of them that I was already completely enamored of them.
David F. Levi: So you may have other judicial role models, I don’t know, but it’s one of the questions that I often ask on the Judgment Calls program is whether there is a judge or a group of judges who you take as a model and who you sort of ask, “What would they do or how would they handle this situation?” or “am I sort of living up to what I most respect in those judges?” Is it fair to say they play that role and maybe there are others as well?
Judge Oldham: Easily, and I asked myself that question all the time about how they would approach these things. I think it’s one of the really neat things about clerking.
Just listening to you during the introduction, I was just thinking, my lord, how, how have I been so blessed to be able to have these many different opportunities to work for these great many people? But I often will think about the times — when you’re on the staff side, whether you’re a law clerk or a staffer to an official or whatever, you get to see what a lot of people in the public don’t see. You get to see the moments of private wrestling. You get to see the way someone reasons the real problem. You get to see what genuine integrity looks like, and I just find it to be a constant reminder of what the public expects of us. I think both of my bosses, my judicial bosses, had this constant understanding that we are public servants, right. We are supported by the taxpayers. We are charged with an amazing public office of public trust as I know you know from your former life, and we are given this incredible opportunity to exercise the judicial power of the United States, and with that comes the amazing responsibility of doing it with humility, of doing it with an understanding of the limits, both of us as human beings and the institution of law. I constantly think about watching them wrestle with these sorts of problems because some of our cases are straightforward, but a lot of them aren’t, and it gives rise to a lot of internal dialogue.
David F. Levi: Well, I’m chair of the clerkship committee this year at the law school, so let me just put in a plug to the students who are listening. You really should consider the clerking opportunity for all the reasons that Judge Oldham has said.
You said one thing which I’ve heard from so many clerks, and I think I felt in the same way because I clerked for two judges as well, is that when you clerk just as you come out of law school it’s a time in life where this may be, for many people, their first serious employment, at least in the law. And these judges often have a perspective on — which is a demanding profession — on how to live fully in the law without giving up on every other part of life. You know, how to build a life in the law. And I think, you know, judges, they have that kind of relationship with their clerks that goes beyond just the analytic tools and the sort of philosophical approach, but more, almost like you’re part of their family.
Judge Oldham: Yeah, I refer to my clerks as my family constantly in emails, in conversation. And I don’t mean it as a rhetorical trope. I mean as a genuine heartfelt feeling. For the year that we’re together, we have this unbelievable bond because we get to work on things that other people don’t get to see, and we get to talk about these very issues that you’re just talking about how do we do this with our families, how do we do this with other priorities that we have outside of the office, and you have a chance, you’re not billing time by six-minute increments, you don’t have clients who are clamoring and calling you at all hours of the night. So, it naturally gives rise to a period of reflection. And I think you’re totally right that doing it right out of law school is a huge advantage because it provides you some form of foundation as you’re proceeding forward in your career. And you can always think back to, oh, well, that I remember that there was a time when I wasn’t taking client phone calls at midnight or whatever it is that you have to do.
David F. Levi: Let’s talk about your chamber staff, how you’re organized, and sort of how, let’s say, a real case that’s going to eventuate in an opinion that you write. How [does] that move through the process as you see it?
Judge Oldham: Yeah, so, I have four clerks and a secretary, or judicial assistant, because she’s way more than that. I don’t even know, she’s out on vacation this week, and it’s a miracle I’m even on Zoom with you because I can’t figure out how to turn on the lights without her. So, it’s six of us, here, and when a case comes in, Gina, my JA will take it, and she will assign it to a law clerk or the law clerks will divvy it up themselves. And I like to have one law clerk who I refer to as the quarterback, right, who’s sort of quarterbacking that case. But I’m a very firm believer in the idea that two brains are better than one and three brains are better than two. And so, I love as much kind of interaction, bouncing around of ideas, preferably clashing of ideas. There’s nothing that makes me happier. I constantly have my door open because I love listening to my law clerks talk, and I love hearing them say, “Well, I don’t know. Not sure we have jurisdiction” or whatever it is, you know, that they’re going to fight about, but when they disagree with each other that’s the real crucible of, I think, of cogent legal thought. If we all just sort of agree, I’ve always thought that’s kind of dangerous, right, because then we’re not examining the premises really rolling an idea around. And then I will work, but I usually work directly with the quarterback and whoever else is working to try to come up with an opinion. I desperately, I tell my law clerks I want you to have the same experience that I did when I was clerking. I want it to be as rich as possible. I didn’t get to work, you know, draft every first draft of every opinion and the cases when I was, I was working on. But I want my law clerks to have that experience because I want them to have a chance to sort of stretch their legs or flex their muscles or whatever. But also, to then work through with me with the art of the writing, right, so much of it is art when we’re trying to communicate an idea. We’re trying to communicate a judgment. And that’s an incredibly sensitive and delicate thing. And there’s just nothing in the whole world more invigorating than participating in it. So, I try to do is, not that I don’t want to do them all on my own, I quite frankly love doing them, but I like to delegate as much of it to them as I possibly can for the sake of their enrichment, their experience, and the iterative process of working together to make it perfect.
David F. Levi: So, could we delve into the nitty-gritty here just for a second, if you’re comfortable with that? And probably all circuits are a little bit different. But let’s say that it’s a case that where the panel, maybe the panel has decided, or the senior judge on the panel has decided that there will be oral argument. So, we’re not dealing with cases where let’s say the staff of the court has prepared an opinion already. It doesn’t raise any real question, but it’s the case that they may have some difficult legal questions and, am I right, that before oral argument you don’t know if the case will be actually assigned to you, or is that different in the fifth?
Judge Oldham: No, we don’t know until we vote. Actually, we don’t know going into the sitting, yeah, who’s going to be the assignment. So, the presiding judge makes the assignments and we do it, so we’ll have a sitting that lasts a week. Even when we’re doing it on Zoom will have a sitting that lasts a week, and then at the end of the sitting, the presiding judge will go through and say there’s 20 cases. And we’ll go, you know, I’m going to assign this one to Judge Levi and this one to Judge Oldham and this one to whoever.
David F. Levi: So, what your law clerks will have done for you to that point is perhaps is to have written a bench memo and to help you get ready for oral argument.
Judge Oldham: Yeah, that’s right. I asked them to, we brief everything, memo everything, whatever you want to call it. I ask my law clerks to look at every case. It doesn’t matter how, you know, there’s certain areas of law that I know better than others, but it doesn’t matter, I treat them all the same. My theory has always been that as soon as you get comfortable and you think you know what you’re doing is when you’re going to screw it up. And the only mistakes I want to make are the ones that I thought about, right, like I try really hard not to make an unexamined mistake. Those are the ones that keep me up at night. If I look at it, and I think it’s orange instead of red, then okay, at least I tried. Right. We’re all frail. We’re all human. We’re going to screw it up, but I just do not ever want to screw it up for lack of effort, energy, focus, attention.
David F. Levi: Yeah. I think we call those “unforced errors.” You don’t want to make too many of those.
Judge Oldham: Yeah, I want mine to be forced. I want them to be on purpose.
David F. Levi: So the law clerk reads the briefs, writes a bench memo, and I’m sure you read everything and then what is your sort of approach to oral argument?
Judge Oldham: So, I, what I’ll do is I try to read everything a week ahead of time. And then in the court a couple of days before argument I sit down with the law clerk who’s the quarterback, and we go through the case. And I say, “Okay, let’s fixate on the flex points, like where do we think the weak points are in the various arguments and who gets the long and the short end of this battle?” And then I try to come up with a series of questions, but I don’t really write them down. I really just kind of get into my brain kind of the broad pictures and the themes, so, I think that in this case, there’s going to be a personal jurisdiction problem. It’s not completely obvious to me that there was purposeful availment for whatever it is we’re talking about. And so, I will sort of naturally in the argument itself just look for the opportunity to talk about that. I try really hard not to just like inject it into, throw the grenade into the middle of the room. Because I really think it should be, this is my own when I was an advocate, I kind of went to be conversation like you and I are having and not just some, like, you know, nothing more sort of unnatural about that.
David F. Levi: Well, and I think the point, and I can tell you that you’re going to agree with what I’m about to say it, it’s not an occasion where the judge has any need to show everybody how smart the judge is, you know, it’s really the lawyers time and your time to, if you’ve got some things you’re uncertain about, which often the judge goes into oral argument you kind of think you know where you’re going, but maybe you’re not sure about all the pieces of the argument, and it’s useful.
Judge Oldham: One is, you know, I mean, you had to make these tough choices, too, someone’s going to lose. Right, maybe both sides lose, but someone’s going to be more unhappy than the other. It’s such a rare case where both people walk away 50/50 like, you know, Solomon, or whatever. I mean, it’s really hard. And so, I always think about the fact that since someone’s going to lose we really owe it to both sides, we owe it to the law, but we particularly owe it to the one who’s going to lose that we really take it seriously,make sure that we’re right about that, and as you say, it’s the lawyer’s time to try to save the case, sort of rehabilitate the case or to mitigate the loss. And so, I mean, I think that’s just a sign of respect to the bar and also to the client.
David F. Levi: So, we do have some questions and I better ask some before we run out of time. And I can tell that we’ve got some people on the program in the audience who are thinking about, “Gee, I’d be great to clerk for you.” So, one question is, do you like your law clerks to have had a year or two of experience before they come to you? Or do you care? How do you see that?
Judge Oldham: Well, let me say first, although my dad like Judge Sentelle went to the University of North Carolina, and I can sing the Tarheel fight song, I do love Duke, and my first year on the bench, I had a Duke Law clerk, and she was amazing. So, I would love to have applicants from Duke. It makes me so happy, so, I know professors. I know you obviously, and so many people I know and I trust there, so I feel very comfortable hiring, so I’d love to have more Dukies. How do I sort of think about the clerk hiring process?
David F. Levi: Well yeah, I think particularly because some judges now want their clerks to have worked in private practice you know for a couple of years.
Judge Oldham: No, I, my view, I, I have no preference, one way or the other. I have clerks, who are straight through. I have clerks who have clerked for other judges before me. I have clerks who are going to clerk for me and then another judge, I have clerks who came from private practice. I’ve got all kinds of clerks and I think the thing from my perspective, I tried to make each clerk class round, right, so I don’t want four people straight out. I don’t want four people who’ve had a year out. I try to have sort of a variety of different perspectives because you know, people who come straight through they have a handle on all kinds of stuff in law school, they think about these problems the way I used to think about them, obviously, when you’re a 3L in law school that means a lot about the law review literature, you were probably articles editor on your law journal. So, you know, like the sort of ideas that are in circulation. That’s a great skill, but it’s different than somebody who’s been at a law firm for a year and knows the difference between 12b6 and rule 56 in practice. Right.
David F. Levi: Yeah, definitely. Well here’s a question from someone who has figured out that, “Gee, you’d be a great mentor” and they want to know what, what advice do you have for a 1L.
Judge Oldham: That’s a great question. So, I hate to say this. I hate to say this because I’m not really a grade snob, like I don’t have some sort of weird arbitrary GPA cut off or whatever. But I would say, particularly 1L year, to focus as much as you can on getting the highest marks that you can because it really does matter for all kinds of things. Each one of these incremental steps in your career builds on the one that immediately preceded it. And so, I think the best thing you can do as a 1L is to really focus on your classes and to really take it as seriously as you possibly can and keep your marks up as high as you can because it’s going to set you up for success down the road.
David F. Levi: And I think you’d agree that not everybody comes out of college ready for the, let’s just say, the unique experience of the law school exam. And so, I think employers, including judges, like to see people who maybe it was a little rough their first semester but you can tell every semester after that they’re getting it.
Judge Oldham: Right.
David F. Levi: You’ve lived in a lot of different communities. How do you see… how would you compare these different communities or how important is it to be in a community that resonates with you?
Judge Oldham: You mean geographically.
David F. Levi: Geographically, yeah.
Judge Oldham: Yeah, so I can’t imagine anything more important. One of the greatest things I love about Austin is that it is a little bit of everything. In some ways it’s like a little bit of every one of the various places that I have lived. It’s not quite the Anglophilia of living in Cambridge, England. That’s its own thing. But we have obviously the University of Texas is here, so it has that, which I’m sure you would sympathize to. It’s a little bit like the Triangle. It’s got a ton of the intellectual vigor of higher education. It’s got an arts community. Obviously, this is the music capital, we call it the music capital of the world, Nashville disagrees with us. But, you know, there’s a ton of that sort of artists community. There’s tech, and all kinds of the sort of vibrancy that comes from that. And it just makes it… so it reminds me a lot of living in Northern Virginia, right, we have professionals. We have all kinds of just an incredible melting pot, and it’s always resonated with me because obviously, it’s a little bit weird by design and proudly. But I just think it’s life-affirming to be in a place that really sort of supports you in that way and makes you feel like there’s a little bit of all the things you find important.
David F. Levi: We could talk for hours, and I hope sometime we’ll have that opportunity in person. We can’t thank you enough. Thank you so much for joining with us here today. This has been Judgment Calls, a program of the Bolch Judicial Institute. Goodbye, everyone, and thank you, Judge Oldham.
Judge Oldham: Thank you so much.