Clerkship memoir describing Judge David L. Bazelon's opinion drafting process

4.2.12 WC: 191694 agencies—the so called “alphabet agencies”—such as the FCC, FPC, SEC and FDA. The rest were run of the mill criminal cases—murder, robbery, rape, assault and other street crimes. It was a perfect combination for a budding law professor who was interested in constitutional and criminal law. Our task began with a case record, which consisted of the appellate briefs filed by the lawyers and an “appendix,” which included relevant excerpts from the trial transcript and motions filed before the trial court. Some records were relatively short, perhaps 300 pages in total. Others were humongous, as many as 5,000 pages. Then there was the complete trial transcript—a verbatim account of every word spoken during the trial, as well as during the pretrial and post-trial proceedings. Judge Bazelon would often ask me to read the entire transcript in search of errors or particular issues that were of interest to him. When we completed the review, we would discuss the case with the judge, who had read the briefs and perused the appendix in preparation for the oral argument in court. Occasionally, we were permitted to listen to the oral argument, especially when leading lawyers were arguing (which was rare), or when issues close to the judge’s heart were being considered. But generally, we were required to remain in the chambers working while the judge presided over the oral argument. Since Bazelon was the Chief Judge, he always presided and got to assign the opinion to one of the three judges on a panel (or nine when on rare occasions the entire court heard the case “en banc”). Following the oral argument, there was a conference among the judges during which a tentative result was reached and the case assigned. Bazelon always assigned the most interesting cases to himself, or to a judge whose decisions he wanted to influence. When the conference was over and the case assigned, we would meet with the judge and he would tell us which clerk was to work on the opinion. I always got the interesting cases (at least the ones that interested the judge). My co-clerk, who the judge didn’t much like, got the dregs. This was fine with him, since he didn’t much like working closely with the judge. Then the real work would begin. Draft after draft was submitted, marked up by the judge and rejected with the admonition, “You can do better,” or sometimes “start over, this draft isn’t right.” After many drafts, and some pressure from the other judges on the panel, the opinion was released to the public. Generally, they were majority opinions, often unanimous, but frequently they were dissenting or concurring opinions. This was a deeply divided court and the dissenting opinions pulled no punches in criticizing the majority, and vice versa. At the end of the year, the clerks would prepare bound volumes of all the opinions we worked on during our clerkship. One was given to the judge and the others to us, as mementoes of our year. As I write these words, I have in front of me the maroon volume engraved with the following words: “Chief Judge David L. Bazelon 54 HOUSE_OVERSIGHT_017141