With the announcement of Justice Kennedy’s retirement, there will no doubt be many constitutional law commentators who will opine about his jurisprudence and impact. My perspective is more personal – I clerked for him 40 years ago when he was a relatively new and young judge on the Court of Appeals for the Ninth Circuit.
Let me begin by setting the stage with what the judicial clerkship market looked like 40 years ago. When I started law school, only about 25 percent of law students were women. But beyond that, it was a time when many legal employers, including federal judges on the Court of Appeals, thought it was completely acceptable to decline to hire women, solely because they were women. I know this because a Court of Appeals judge from the D.C. Circuit said this explicitly. I had interviewed with this judge, and following the interview he called for me at my home and ended up talking with my mother. He explained to her that he hoped I would apply for a different job in the clerk’s office (“We’d love to have some women applicants for this position”), but that he would not be offering me a job because he, “like many of [his] colleagues,” would not be comfortable having a woman as a personal law clerk. Against this backdrop, I headed to San Francisco for a summer job and while out there interviewed with then Judge Kennedy. Unlike his colleague on the D.C Court of Appeals, he was quite comfortable having a woman for a law clerk and offered me the job almost immediately.
Over the course of my year as a clerk, I saw a judge who was open-minded, and who understood that opinions were not merely expositions of legal doctrine but that they had consequences for real people. He was a natural storyteller and I think that sometimes he was more attracted to the “story” of the case than the details of the underlying legal doctrine. He was also a natural consensus-builder. He relished the cases that went en banc and would work the phones looking to garner a majority. He was more interested in building the consensus than in maintaining doctrinal purity. If the consensus required adding a fifth factor to a four-part balancing test or dropping a qualifying footnote, he would do so. The result was that sometimes the opinion lacked the analytic sharpness that some might prefer, but it reflected an innate pragmatic streak. His open-minded instincts extended beyond his approach to judicial decision-making. I remember well reviewing with him a stack of resumes for the next year’s clerks. I had pulled the resume of an applicant who had gone to Stanford as an undergraduate, followed by Harvard Law School and the London School of Economics. “He sounds like a copy of me,” replied the judge. “Do you have somebody different?”
Justice Kennedy is also a truly kind and thoughtful person. Nothing illustrates this more than a conversation I had with him about a year ago when he called me out of the blue. My son was clerking for him that year and the reason for his call, he said, was that he just wanted to tell me what a terrific lawyer my son was and how much he was enjoying working with him. Constitutional scholars will, appropriately, focus on Justice Kennedy’s judicial opinions and their impact, clarity, and consistency. But in a world of increasing coarseness, it is worthy of note when a person of exceptional power has chosen to comport himself with dignity, modesty, and kindness.