What's the appellate lawyer's dream beach-read? How about a novella where the plot turns on an untimely notice of appeal? And what about characters remarkably similar to judges we know? David Lat's Supreme Ambitions is that book.
The set up goes like this (spoiler alerts!): A law clerk for a 9th Circuit judge realizes that an important appeal is jurisdictionally defective (the classic untimely appeal issue), but the clerk's judge wants to publish a decision in the case to further her candidacy for a Supreme Court seat. It all comes to a head in Chapter 39, where the law clerk lays out her key points to consider in resolving her ethical quandary, more or less like this:
"1. Jurisdiction is an abstraction and a technicality. It does not go the merits of a legal issue."
2. The issue in this case will reach a court at some point, and it's an important issue that would be better for public to be decided "sooner rather than later."
"3. I am merely a law clerk. ...."
"4. As a law clerk, I perform a 'clerical' role...."
"5. My paramount duty as a law clerk is to carry out the will of my judge. I am an extension of my judge."
"6. As [a] law clerk, I owe [the judge] a duty of confidentiality." I have been directed to keep the jurisdictional flaw confidential.
7. Issuing an opinion in a case where there is no jurisdiction is arguably inconsistent with "the law" -- "but as I've learned during my clerkship, 'the law' is simply what judges happen to say it is."
"8. The notion of 'the law' as pure and objective, as an independent identity--as something divorced from considerations of power, politics and personality--is a theoretical construct. The real world works in far more complex ways."
9. My judge is an excellent judge and would make an excellent justice.
10. If I keep silent, it will advance my prospects for a Supreme Court clerkship.
What does the clerk ultimately do? You'll have to read Supreme Ambitions to find out.
Apart from the appellate law and geekdom inextricably intertwined in the story line, the description of clerking at the 9th seems very accurate. And readers of this blawg will have no trouble identifying the models for Judges Polanski, Gottlieb, and the other fictional 9th Circuit Judges, or for California Justice Sherwin Lin, Scotus Justice Hannah Greenberg, and other characters. At only 280 pages, you'll finish this treat faster than it takes to read some splintered Scotus opinions. This ditty is plainly worthy of judicial notice (and your notice too): We rate it at five "affirmances."