In a beautiful essay on The Free Press, Joel Klein provides a harrowing account of how his “dream” clerkship with D.C. Circuit judge David Bazelon, one of “the most iconic liberal jurists of the time,” turned into a nightmare. Klein shared Bazelon’s deep interest in law and psychiatry. But “after a few exhilarating months” of his clerkship, Klein discovered that Bazelon had no answer to the elementary question of what should be done with a criminal defendant who was found not guilty under the “irresistible impulse” defense that Bazelon was advocating:
[The defendant] couldn’t be committed to a mental institution because he wasn’t mentally ill. But setting him free seemed like a terrible idea. If he once had an irresistible impulse and killed, might he not have a second or third such impulse resulting in harm to others?
Klein, after intensive study, informed Bazelon that he couldn’t find a solution to this problem:
That was it for me. I went from being a favored clerk to a clerk in exile. Bazelon literally moved my office from the big one adjacent to his to a small one down the hall. For the next couple of months, he communicated with me through his executive assistant only. Then, in mid-March, he summoned me to his office and told me I should listen as he returned a call to Potter Stewart, a justice on the U.S. Supreme Court. To my surprise, without telling Stewart, he put him on the speakerphone and said, “Hi, Potter. I got a message saying you wanted to talk about one of my clerks, Joel Klein. You’re considering him for yourself?” Stewart started to say some nice things he’d heard about me, but Bazelon interrupted. “He’s no good,” he said. “One of the worst clerks I’ve ever had. Not very smart and doesn’t work hard.” Bazelon hung up the phone and told me that several other justices had called asking about me, and he’d given them the same report.
Klein reports how he ended up clerking for Justice Lewis Powell, whom he regarded “as public enemy number one, a conservative corporatist hell-bent on protecting his privileges and those of his rich clients and friends.” But he soon discovered that Powell “was thoughtful, measured, and willing to listen to others, including his clerks,” and “a rare and admirable person in other ways as well.” Powell became one of the three heroes in his life. The contrast between the two experiences taught Klein some elementary but important lessons that too many of us ignore: “there’s a hell of a lot more to a person than his or her political views,” and “looking at hard issues with a fresh eye can be enormously invigorating, while clinging to certainties can impede learning and maturing.”