Wow. I was in a courthouse with a lot of judges for two years. The number of clerks who quit during that time was zero. I remember interviewing with a judge in PA who started my interview with "so, you're a Jewish fella". Far from his clerks quitting, after he was done they debriefed me on how, notwithstanding this judge's "quirks", it still was the best job either of them could imagine having (one of them was Jewish). The point is that Judge Cannon must be some kind of awful in some way for clerks -- plural -- to quit on her.
I clerked 20 years ago (in the A3G era), and I’m sure the world has changed a lot since then, but like everyone else, I do not know of a single clerk who left their clerkship early, including ones who were absolutely miserable and others who endured terrible personal tragedies. I had a great relationship with my judge (after a slightly rocky beginning) and wouldn’t trade my clerkship for anything, but I can easily imagine how miserable a bad one could be. Still, I don’t think I could have quit unless it was an absolutely existential issue. I can see how clerking for Cannon could qualify as such.
Getting a bit meta, but the attributed comment in update #10 comes across as too earnest to me. "The attacks on her are obviously being made by partisan bad actors with political agendas" feels like overdoing it. Politics obviously has some impact on all this. It would be silly to pretend no critic is affected by politics. But this complaint comes across as a tad too loud to me -- to the point where I'm inclined to discount what it claims, and maybe to think the heat and vociferousness (and, especially, being attributed directly rather than anonymously) is its own form of signaling, virtue signaling, rallying the troops, etc.
OTOH the things said in #10 and the tone feel more pitched to appeal to pro-Trump (or anti-anti-Trump) folks. Not to Trump-opposed people like me. So it's quite possible that some of what I'm seeing in the degree of wording in #10 is merely my own skepticism.
Here my take on Judge Cannon after reading this and reading what's available from sources I deem reliable. There's a lot I infer from my own legal career, so read this as informed speculation.
What can adequately explained by inexperience need not be ascribed to partiality. Let's review her career arc.
She grew up in the Cuban-American community in South Florida and went to Duke University where she studied the arts. At some point she decided to go to law school and had the superior qualifications necessary to get into Michigan, a Top 10 law school, where she graduated in the top 10% of her class ("Coif"). She was an articles editor on the University of Michigan Journal of Law Reform, one of the four speciality publications, not the main Michigan Law Review. In her first year she fell in with the local chapter of the Federalist Society, which often happens for non-ideological reasons. The first year of law school, in a new city and no social network, no mentoring, and fierce competition doesn't do much to relieve the profound shock of an educational experience where there are no right answers, only right questions. I can see a student turning there for shelter from the experience and I don't read anything into it from an ideological viewpoint.
She was off to good start in her first year, because when she returned for the beginning of 2L, she scored a summer associate offer for the following year at the DC office of mega-firm Gibson Dunn. She got the customary delayed start after later getting a circuit court clerkship for Judge Colloton on the Eighth Circuit. He had a pre-MAGA Republican establishment career. Aside from a stint with the Ken Starr special counsel team his only other political color is that he was said to be on Trump's shortlist for Supreme Court. To the extent that whatever Republicanesque feelings of political affiliation she left South Florida with, nothing in the atmosphere of his chambers seems likely to have done more than help settle that orientation.
After the clerkship, she was to to DC Big Law primed for appellate practice, which is what that office mainly does in litigation besides regulatory representation. The current chair of the department's litigation department has a bio that doesn't highlight any victories in jury trials. In fact, at that level, going to trial isn't supposed to happen in the first place. The only matter than I could find in which Judge Cannon made an appearance was as the most junior of a four-lawyer team in a broker-dealer disciplinary case before the self-regulatory body appealing an adverse decision.
In that environment she would have gone through what can be a brutal process of micromanagement, panicked deadlines, performative perfectionism doing a lot of law and motions practice and research. As she progressed to mid-level and then senior associate she would have move from the receiving end to the dispensing end. (Again, I'm describing typical experiences; I know nothing about the degree to which this was or was not true of her.) As the first pre-partnership culling came close, perhaps she looked into her soul and did not see a future partner. Or maybe she was homesick. By this time she was married and her husband has a portable career in franchisor restaurant management.
All this time, from 1L, she has been in the part of litigation that is furthest removed from trial level work. Her entire attention has been focused on the legal issues, not on factual issues, including discovery. Lawyers with her level of experience don't get hired as AUSA trial lawyers. They spend most of their time in the appellate division. She did go through the standard training routine of introductory trial practice before she began spending most of her time on appeals.
As part of her training she probably got to pitch a felon in possession of a firearm charge to a grand jury. If she had the bad luck to do it mid term, after the jurors had a steady diet, she may have been taken aback when she started to layout the elements of the crime and we all started chanting in unison. After that she probably caught on to the essential skill, which is keeping a straight face when offering evidence of probable cause, which is the opposite pole of beyond a reasonable doubt. In practice it means "not totally impossible." It was hard for me as a lawyer to get my fellow jurors to discard the attitude, "if he's innocent, he has nothing to worry about." For well over 95% of defendants an indictment leads directly to a plea deal, not a trial.
I found one jury trial that she delivered a closing argument for, but most of the work at trial level was case management and law and motions. There were a few oppositions to defendant motions. I didn't see any high profile cases. She did have one case that she handled at both trial and appeal that involved a career criminal who follows the Trump school of never admitting defeat. He was a felon caught at the scene of a burglary carrying a pillow case with a weapon and ammo. Tooth and nail doesn't begin to describe it. His petition for certiorari after losing on appeal was shot down but last seen he was still trying new theories about how he was screwed after all that due process. Judge Cannon should have taken a lesson from that experience is that bending over to appear fair will create only critics and ingrates, no admirers. I don't think she had anything much in the way of supervisory experience.
She was contacted by Marco Rubio's office about her interest in appointment to the bench and did what any AUSA who hadn't had the high-profile career that would lead to appointment as a U.S. Attorney, open political opportunities or a cushy law firm job would do. She said yes.
After confirmation, she would have attended the one-week orientation at the Federal Judicial Center initially and a follow-up one-week continuing ed course later in the year. Those are the tools provided to set up a judicial operation that is expected to be able to scale to several hundred concurrent cases, recruit staff, come up to speed on the whole matter of mechanics and attend to a host of other just stuff. Before you're ready, cases start being assigned and your former colleagues are beginning to game you, along with any defense counsel you have opposed. It's all very polite and above board, but if you don't quickly establish a bullshit-proof reputation, control of the courtroom will be hard to come by. Despite all the bowing and scraping trial lawyers can be vicious. When I became an administrative law judge for a utilities commission, they bar was used to jawboning all day and I knew that if I let them, I'd fall asleep, so I adopted an imperious attitude, cut speeches short and encouraged lawyers to put most of their effort into their briefs.
Finally, she has the judicial equivalent of the little red schoolhouse. The Fort Pierce Courthouse has one courtroom and one magistrate's courtroom. There are no other judges assigned there. No judge's cloakroom, dining room or even water cooler to hang out at and shoot the breeze (aka finding out how things are done). And her professional life is under a microscope. She would need to be a Royal to get any more scrutiny than she does. As it is, I'm surprised that the UK tabloids don't maintain a satellite office there.
So, yeah. Judge Cannon was assigned to the Trump cases before anyone could reasonably expect her to be ready. It's like the difference between book learnin' and street fightin'. They are not interchangeable. I feel for her. I agree with most of the adverse commentary on the legal quality of her rulings, but given the hand she is holding, I can see enough explanation not to have to assume political motivation or careerism.
I certainly appreciate giving everyone (especially a purported public servant) the benefit of any reasonable doubt. But despite the hearsay you’ve heard about Judge Cannon’s qualifications or character (not “unintelligent” and, in general, not “evil”), the proof of what she is doing is in her writing. That’s all that’s even relevant regarding a presiding judge. Justice Scalia (writing the official opinion of SCOTUS) addressed the relevant "evil" in Allentown Mack Sales and Service, Inc. v. N.L.R.B., 522 U.S. 359, 374-375 (1998).
A “decision that applies a standard other than the one it enunciates” (or different from a standard in the law that was known even if not enunciated) is an “evil” that “spreads in” multiple “directions, preventing both consistent [correct] application of the law” and “effective review of the law by the courts.” All “adjudication is subject to the requirement of reasoned decisionmaking” and it “is hard to imagine a more violent breach of that requirement than applying a rule of primary conduct or a standard of proof which is in fact different from the rule or standard formally announced. [Even] the consistent repetition of that breach can hardly mend it.”
Let's wait before speculating. Also, why do you think she is out of her depth? Because she is taking her time to go after the former president? Joe Biden got away with keeping classified documents for years which he had no right to as VP. The documents were not secured. He read the classified info to his "ghost" writer. Double standard-for sure. The left is disgusting in the blatant disregard for the rule of law. I don't want to regurgitate the Antifa vs. January 6th "insurrectionists" treatment here, but everyone can see the double standard.
I don’t disagree with you. Having been a district court clerk myself, I do remember the pressure to get things right and punt on matters whenever possible. It didn’t help that my judge, who kept photos of every law clerk in his library, threatened to turn around the photo of any clerk who had 5 or more decisions reversed. I don’t think any one factor could explain any judge’s actions and the overly simplified narratives that get pitched in the mainstream media (by both sides of the aisle) are designed mostly to whip up emotions and prey on the ignorance of the general public. I will say that over my now 20 year career (damn — I’m old) I’ve never met a federal judge who (1) wasn’t intelligent and (2) didn’t care about being perceived as fair. I think the overwhelming majority try their best to get it right, and the carping they get is for the most part entirely unfair. I also think that Cannon - for whatever reason - is clearly leaning one obvious way in this case. That doesn’t mean she’s a bad person or a bad lawyer, but the bias is unmistakable. Perhaps it’s loyalty to the person who appointed her, perhaps she’s afraid of his supporters, maybe she’s angling for a promotion to the 11th Circuit in a second Trump administration, who knows. My only point is that there is, at this point, no indication that she’s trying to rule down the middle. To the contrary, there’s been a clear and consistent skew in one direction. I tried really hard to give her the benefit of the doubt at first, I even thought the special master order was defensible, but at a certain point you go beyond a string of coincidences to something that looks like a clear, intentional effort and that is where I believe we are today. I have no problem with anyone who sees things differently.
First, as your updates indicate, it was the common practice in SD Fla when I interviewed back in George W Bush’s first term for clerks to start a few days early unpaid. It was also the practice in CD Cal. It seems odd to me that any prospective clerk would take issue with it, it’s not like you clerk for the money. That strikes me a pretextual at best.
Second, I’m afraid I have to differ with your read on Cannon. If she was acting like a pointy-headed appellate judge, you’d expect overly wrought opinions that cut in both directions. We haven’t seen any where she’s worked herself into knots and come out on Smith’s side. It’s frankly not believable that someone would make this many almost-universally-derided orders, all of which favor the same litigant, without a measure of bias. I clerked for a very liberal judge and a very conservative judge and neither was ever this predictably offsides in favor of one party (who coincidentally was the party that appointed them to the bench). When Judge Luttig, Judge Pryor and Larry Tribe all agree you’re off the reservation, you’re probably off the reservation.
I’d love to believe that Cannon is an honest judge doing her best to get it right but overthinking her way into too-clever-by-half decisions. I just don’t see any reason to suspect that’s true. Everything says she’s consistently ruling for one party in spite of overwhelmingly clear law to the contrary.
Wow. I was in a courthouse with a lot of judges for two years. The number of clerks who quit during that time was zero. I remember interviewing with a judge in PA who started my interview with "so, you're a Jewish fella". Far from his clerks quitting, after he was done they debriefed me on how, notwithstanding this judge's "quirks", it still was the best job either of them could imagine having (one of them was Jewish). The point is that Judge Cannon must be some kind of awful in some way for clerks -- plural -- to quit on her.
I clerked 20 years ago (in the A3G era), and I’m sure the world has changed a lot since then, but like everyone else, I do not know of a single clerk who left their clerkship early, including ones who were absolutely miserable and others who endured terrible personal tragedies. I had a great relationship with my judge (after a slightly rocky beginning) and wouldn’t trade my clerkship for anything, but I can easily imagine how miserable a bad one could be. Still, I don’t think I could have quit unless it was an absolutely existential issue. I can see how clerking for Cannon could qualify as such.
Getting a bit meta, but the attributed comment in update #10 comes across as too earnest to me. "The attacks on her are obviously being made by partisan bad actors with political agendas" feels like overdoing it. Politics obviously has some impact on all this. It would be silly to pretend no critic is affected by politics. But this complaint comes across as a tad too loud to me -- to the point where I'm inclined to discount what it claims, and maybe to think the heat and vociferousness (and, especially, being attributed directly rather than anonymously) is its own form of signaling, virtue signaling, rallying the troops, etc.
OTOH the things said in #10 and the tone feel more pitched to appeal to pro-Trump (or anti-anti-Trump) folks. Not to Trump-opposed people like me. So it's quite possible that some of what I'm seeing in the degree of wording in #10 is merely my own skepticism.
Here my take on Judge Cannon after reading this and reading what's available from sources I deem reliable. There's a lot I infer from my own legal career, so read this as informed speculation.
What can adequately explained by inexperience need not be ascribed to partiality. Let's review her career arc.
She grew up in the Cuban-American community in South Florida and went to Duke University where she studied the arts. At some point she decided to go to law school and had the superior qualifications necessary to get into Michigan, a Top 10 law school, where she graduated in the top 10% of her class ("Coif"). She was an articles editor on the University of Michigan Journal of Law Reform, one of the four speciality publications, not the main Michigan Law Review. In her first year she fell in with the local chapter of the Federalist Society, which often happens for non-ideological reasons. The first year of law school, in a new city and no social network, no mentoring, and fierce competition doesn't do much to relieve the profound shock of an educational experience where there are no right answers, only right questions. I can see a student turning there for shelter from the experience and I don't read anything into it from an ideological viewpoint.
She was off to good start in her first year, because when she returned for the beginning of 2L, she scored a summer associate offer for the following year at the DC office of mega-firm Gibson Dunn. She got the customary delayed start after later getting a circuit court clerkship for Judge Colloton on the Eighth Circuit. He had a pre-MAGA Republican establishment career. Aside from a stint with the Ken Starr special counsel team his only other political color is that he was said to be on Trump's shortlist for Supreme Court. To the extent that whatever Republicanesque feelings of political affiliation she left South Florida with, nothing in the atmosphere of his chambers seems likely to have done more than help settle that orientation.
After the clerkship, she was to to DC Big Law primed for appellate practice, which is what that office mainly does in litigation besides regulatory representation. The current chair of the department's litigation department has a bio that doesn't highlight any victories in jury trials. In fact, at that level, going to trial isn't supposed to happen in the first place. The only matter than I could find in which Judge Cannon made an appearance was as the most junior of a four-lawyer team in a broker-dealer disciplinary case before the self-regulatory body appealing an adverse decision.
In that environment she would have gone through what can be a brutal process of micromanagement, panicked deadlines, performative perfectionism doing a lot of law and motions practice and research. As she progressed to mid-level and then senior associate she would have move from the receiving end to the dispensing end. (Again, I'm describing typical experiences; I know nothing about the degree to which this was or was not true of her.) As the first pre-partnership culling came close, perhaps she looked into her soul and did not see a future partner. Or maybe she was homesick. By this time she was married and her husband has a portable career in franchisor restaurant management.
All this time, from 1L, she has been in the part of litigation that is furthest removed from trial level work. Her entire attention has been focused on the legal issues, not on factual issues, including discovery. Lawyers with her level of experience don't get hired as AUSA trial lawyers. They spend most of their time in the appellate division. She did go through the standard training routine of introductory trial practice before she began spending most of her time on appeals.
As part of her training she probably got to pitch a felon in possession of a firearm charge to a grand jury. If she had the bad luck to do it mid term, after the jurors had a steady diet, she may have been taken aback when she started to layout the elements of the crime and we all started chanting in unison. After that she probably caught on to the essential skill, which is keeping a straight face when offering evidence of probable cause, which is the opposite pole of beyond a reasonable doubt. In practice it means "not totally impossible." It was hard for me as a lawyer to get my fellow jurors to discard the attitude, "if he's innocent, he has nothing to worry about." For well over 95% of defendants an indictment leads directly to a plea deal, not a trial.
I found one jury trial that she delivered a closing argument for, but most of the work at trial level was case management and law and motions. There were a few oppositions to defendant motions. I didn't see any high profile cases. She did have one case that she handled at both trial and appeal that involved a career criminal who follows the Trump school of never admitting defeat. He was a felon caught at the scene of a burglary carrying a pillow case with a weapon and ammo. Tooth and nail doesn't begin to describe it. His petition for certiorari after losing on appeal was shot down but last seen he was still trying new theories about how he was screwed after all that due process. Judge Cannon should have taken a lesson from that experience is that bending over to appear fair will create only critics and ingrates, no admirers. I don't think she had anything much in the way of supervisory experience.
She was contacted by Marco Rubio's office about her interest in appointment to the bench and did what any AUSA who hadn't had the high-profile career that would lead to appointment as a U.S. Attorney, open political opportunities or a cushy law firm job would do. She said yes.
After confirmation, she would have attended the one-week orientation at the Federal Judicial Center initially and a follow-up one-week continuing ed course later in the year. Those are the tools provided to set up a judicial operation that is expected to be able to scale to several hundred concurrent cases, recruit staff, come up to speed on the whole matter of mechanics and attend to a host of other just stuff. Before you're ready, cases start being assigned and your former colleagues are beginning to game you, along with any defense counsel you have opposed. It's all very polite and above board, but if you don't quickly establish a bullshit-proof reputation, control of the courtroom will be hard to come by. Despite all the bowing and scraping trial lawyers can be vicious. When I became an administrative law judge for a utilities commission, they bar was used to jawboning all day and I knew that if I let them, I'd fall asleep, so I adopted an imperious attitude, cut speeches short and encouraged lawyers to put most of their effort into their briefs.
Finally, she has the judicial equivalent of the little red schoolhouse. The Fort Pierce Courthouse has one courtroom and one magistrate's courtroom. There are no other judges assigned there. No judge's cloakroom, dining room or even water cooler to hang out at and shoot the breeze (aka finding out how things are done). And her professional life is under a microscope. She would need to be a Royal to get any more scrutiny than she does. As it is, I'm surprised that the UK tabloids don't maintain a satellite office there.
So, yeah. Judge Cannon was assigned to the Trump cases before anyone could reasonably expect her to be ready. It's like the difference between book learnin' and street fightin'. They are not interchangeable. I feel for her. I agree with most of the adverse commentary on the legal quality of her rulings, but given the hand she is holding, I can see enough explanation not to have to assume political motivation or careerism.
I certainly appreciate giving everyone (especially a purported public servant) the benefit of any reasonable doubt. But despite the hearsay you’ve heard about Judge Cannon’s qualifications or character (not “unintelligent” and, in general, not “evil”), the proof of what she is doing is in her writing. That’s all that’s even relevant regarding a presiding judge. Justice Scalia (writing the official opinion of SCOTUS) addressed the relevant "evil" in Allentown Mack Sales and Service, Inc. v. N.L.R.B., 522 U.S. 359, 374-375 (1998).
A “decision that applies a standard other than the one it enunciates” (or different from a standard in the law that was known even if not enunciated) is an “evil” that “spreads in” multiple “directions, preventing both consistent [correct] application of the law” and “effective review of the law by the courts.” All “adjudication is subject to the requirement of reasoned decisionmaking” and it “is hard to imagine a more violent breach of that requirement than applying a rule of primary conduct or a standard of proof which is in fact different from the rule or standard formally announced. [Even] the consistent repetition of that breach can hardly mend it.”
Let's wait before speculating. Also, why do you think she is out of her depth? Because she is taking her time to go after the former president? Joe Biden got away with keeping classified documents for years which he had no right to as VP. The documents were not secured. He read the classified info to his "ghost" writer. Double standard-for sure. The left is disgusting in the blatant disregard for the rule of law. I don't want to regurgitate the Antifa vs. January 6th "insurrectionists" treatment here, but everyone can see the double standard.
I don’t disagree with you. Having been a district court clerk myself, I do remember the pressure to get things right and punt on matters whenever possible. It didn’t help that my judge, who kept photos of every law clerk in his library, threatened to turn around the photo of any clerk who had 5 or more decisions reversed. I don’t think any one factor could explain any judge’s actions and the overly simplified narratives that get pitched in the mainstream media (by both sides of the aisle) are designed mostly to whip up emotions and prey on the ignorance of the general public. I will say that over my now 20 year career (damn — I’m old) I’ve never met a federal judge who (1) wasn’t intelligent and (2) didn’t care about being perceived as fair. I think the overwhelming majority try their best to get it right, and the carping they get is for the most part entirely unfair. I also think that Cannon - for whatever reason - is clearly leaning one obvious way in this case. That doesn’t mean she’s a bad person or a bad lawyer, but the bias is unmistakable. Perhaps it’s loyalty to the person who appointed her, perhaps she’s afraid of his supporters, maybe she’s angling for a promotion to the 11th Circuit in a second Trump administration, who knows. My only point is that there is, at this point, no indication that she’s trying to rule down the middle. To the contrary, there’s been a clear and consistent skew in one direction. I tried really hard to give her the benefit of the doubt at first, I even thought the special master order was defensible, but at a certain point you go beyond a string of coincidences to something that looks like a clear, intentional effort and that is where I believe we are today. I have no problem with anyone who sees things differently.
Follow up comment: I have a few thoughts.
First, as your updates indicate, it was the common practice in SD Fla when I interviewed back in George W Bush’s first term for clerks to start a few days early unpaid. It was also the practice in CD Cal. It seems odd to me that any prospective clerk would take issue with it, it’s not like you clerk for the money. That strikes me a pretextual at best.
Second, I’m afraid I have to differ with your read on Cannon. If she was acting like a pointy-headed appellate judge, you’d expect overly wrought opinions that cut in both directions. We haven’t seen any where she’s worked herself into knots and come out on Smith’s side. It’s frankly not believable that someone would make this many almost-universally-derided orders, all of which favor the same litigant, without a measure of bias. I clerked for a very liberal judge and a very conservative judge and neither was ever this predictably offsides in favor of one party (who coincidentally was the party that appointed them to the bench). When Judge Luttig, Judge Pryor and Larry Tribe all agree you’re off the reservation, you’re probably off the reservation.
I’d love to believe that Cannon is an honest judge doing her best to get it right but overthinking her way into too-clever-by-half decisions. I just don’t see any reason to suspect that’s true. Everything says she’s consistently ruling for one party in spite of overwhelmingly clear law to the contrary.