Episode 122: Susan M. Carney
00:38:28
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Show Notes
Justice Susan M. Carney of the Alaska Supreme Court sits down with host MC Sungaila to discuss her road to Alaska, and to the bench. A post-law school clerkship with Alaska Supreme Court Justice Justice Jay Rabinowitz brought Justice Carney to Alaska, where she stayed, working as a public defender and for the Alaska Office of Public Advocacy before joining the court for which she clerked. Justice Carney shares how her athletic experience impacted her career, and the role that mentors and supporters played in her journey to the bench.
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About Susan M. Carney:
Justice Susan M. Carney was appointed to the Alaska Supreme Court in May 2016. A former athlete, she was encouraged to pursue law because of the opportunities it gives in terms of helping other people while being able to work with competitive trial lawyers and become more inspired to make a difference for others and for yourself!
Justice Carney was born and raised in Massachusetts and attended Harvard-Radcliffe College and Harvard Law School. After graduating from law school in 1987, she worked as a law clerk for Justice Jay Rabinowitz of the Alaska Supreme Court. From 1998 until her appointment to the Supreme Court, she served as an assistant public advocate based in Fairbanks and representing clients throughout the Interior and North Slope.
Justice Carney served on the Alaska Bar Association’s Board of Governors from 2015–2016, and she was a member of the Supreme Court’s Criminal Pattern Jury Instruction Committee from 2006–2016. She currently chairs the Supreme Court’s Child in Need of Aid Rules and the Fairness, Diversity, and Equality committees. She serves as a presenter and mentors for the Color of Justice youth program and the We the People high school civics competition.
Transcript
In this episode, I'm very pleased to have joined us justice on the Alaska Supreme Court, Susan Carney. Justice Carney, welcome.
Thank you.
Thank you so much for doing this. I'm interested in learning about your journey to the bench and your position. First, I wanted to start with the beginning. What drew you to the law? What inspired you to go to law school?
I didn't grow up wanting to be a lawyer. As I kid with my children, my veterinary career still hasn't taken off. After I graduated from college, I was trying to think of something that I wanted to do, and the law seemed attractive for a couple of reasons. One was to help people, and another was trial lawyers are competitive. I had been an athlete my whole life. Since I was not about to have a professional athletic career, I thought that might be a better way to channel some of that.
That's a good way of thinking, "I have a competitive spirit that's been quite honed by my athletics. How can I channel that for good and usefulness?" That's interesting. Sometimes people come to do what they do and study what they study for various reasons. Some of them are a little bit more self-aware about your own strengths personally rather than more of a theoretical approach to philosophy or philosophy of the law or something. That's good. That's a lot of self-awareness there. Does it turn out to be a good match?
It did. I was a public defender for many years before I got this job, so I was in court all the time.
That's something that can be difficult to have, those opportunities, particularly these days. If you go to a law firm, that's not as likely, especially early on. You enjoyed it. How did you decide to go to the public defender's office in particular?
First, I was in Alaska. The Public Defender Agency up here has a very good reputation. There's also a conflict public defender agency, which is called Public Advocacy, to differentiate it. I knew I wanted to be in court a lot. I didn't feel comfortable prosecuting. I had worked with some legal aid agencies when I was in law school doing various civil things, and I found the shorter timelines in criminal cases more attractive to me. I didn't want to be so much behind the scenes. Mostly through law school, I came out with a long list of jobs I had no interest in doing, which many of my classmates were eagerly headed toward.
It's the process of elimination. Sometimes that's a helpful thing in law school. You can find out the things that you're like, "That's not for me." Sometimes things that you have ideas about that you think would be good when you see what's involved, you're like, "That's not what I thought."
The reality doesn't match what you might have been thinking about.
The reality doesn't really match what you might have been thinking about.
When I went to law school, my initial idea was I was going to be an international lawyer. I then found out that's just a lot of contracts and things like that unless you're doing human rights work. That probably wasn't something I was interested in. It's good to find out what it means once you get there. I've heard my friends who have done both prosecuting and public defender or criminal defense say that, to them, the distinction between the two of them is, as the defense lawyer, you're focused on the individual and defending that individual against a larger government system coming against them, and there's a lot of satisfaction in being the advocate for that person.
That's true. It's very different in Alaska because it's a large state with a small population. Both the volume is different here, but also the relationships with the prosecutors are also important. Certainly, any attorney's focus has to be on the individual client at that time. Being able to work with the prosecutors too on a real personal though professional level to try and come up with a real just resolution to a case instead of fighting it out tooth was also something that I enjoyed. I worked with some very committed prosecutors who were seriously taking their obligation to seek justice rather than rack up a conviction record.
That can make a difference in the relations as well. I did for short while some white-collar criminal defense work. What I noticed was that, as compared to civil, both the prosecutors and the defense lawyers see each other a lot. You're working on all different cases, and there was a level of collegiality that was there because of that. Maybe in a larger Los Angeles market of civil lawyers, people were taught, "It's okay if I'm not so collegial in this case because I may not come across this lawyer again." It was nice to see that, too.
It's essential because, at some point, you're not able to represent your client as effectively if the assigned prosecutor thinks that the lawyer is someone who deserves to be punished. It will not be going to filter down well to the client.
What made you consider leaving that advocacy position to join the bench?
I'd never wanted to be a judge at any level. I did not intend to become a judge at any level. When the only woman on the Alaska Supreme Court retired, before it was known publicly, I was in court, and a judge called me to the bench and informed me and said, "You'll be applying, won't you?" I said, "No, I like my job. I'm not interested in that one." He was rather exasperated with me and sent me back to do the hearing I was there to do.
That set off a month or six weeks of what became an amazing and comical series of events where almost every time I turned around, someone said, "You're going to apply, aren't you? Please apply." Both state agencies in Alaska are statewide. The Public Defender Agency, Public Advocacy, and the department of law, with prosecutors and assistant attorney generals, are all statewide. I traveled a lot and had cases in a lot of remote villages. People from all over the state were contacting me.
I came out of a hearing a couple of weeks later, and there was a public defender from Juneau, our capital, which is hundreds of miles away in Southeast Alaska. He informed me that he was speaking for the entire public defender agency, and they were demanding that I apply. Police officers came up to me, and prosecutors wanted me to apply. I loved the job I was doing, and I said, "I don't want to do it."
This came to an end six weeks later. When my husband went out for Chinese food, he came back with way too much food for the two of us now that the kids are gone, and therefore had a whole bunch of fortune cookies. The one I grabbed said, "A great honor will be bestowed upon you in the coming year." I said, "Fine, I get the hint. I will apply."
I often think and have seen for women who have joined the bench that it is often a nudge like that. A judge comes to them and says, "Why didn't you consider applying?" Maybe there are a few nudges, but yours is more than I've ever heard, plus a fortune cookie on top of it. That's pretty amazing. Also, from so many different people in different quarters, which I suppose, it's a huge honor for people to think of you for that position, and to also have from so many different parts of the judicial system that makes you think, "They see something in me, and that something is a certain level of fairness because people from different parts of the system wouldn't all be suggesting that I do it."
My family was quick to point out that they firmly believed that the cops and the prosecutors wanted me to apply so they wouldn't have to deal with me anymore because the Alaska Supreme Court does almost entirely civil cases.
I was wondering about that. That's funny. That's a good one. I've also heard of some, where they say, "Everybody recommended me, but particularly people in my practice area because they were really glad not to have me be in competition with them anymore." That's all good. After all that, you got the message and applied, and here you are. Have you enjoyed it despite your initial reluctance?
It's interesting because the Supreme Court in Alaska does almost no criminal cases, maybe half a dozen a year. It's all civil. By and large, I had not considered it since I was in law school. It's an awful lot of homework and handing off particular assignments to my law clerks to have them dig in greater depth to try and help me understand it. After six years, I thankfully have more knowledge about a lot of things. It was still a little puzzling to me that I was appointed to the civil court after being a public defender forever and ever.
That's what I was going to say because typically, the refrain when you're applying to a court is, "You only have X kind of experience. This court does Y. We're not sure it's a good fit." Particularly in your case, you're like, "There's no overlap in what I was doing."
We have an all-criminal intermediate Court of Appeals. As I said in my interview, there are two things that help that. One is I did go to law school, so I know how to do research and writing and draw conclusions from that. The other is there are five justices on the court. Everybody has areas they specialize in and areas they didn't touch at all. We take very seriously working together to come up with the right answer. We had a case that revolved a lot around a particular aspect of limited liability corporations. I spent 30 years representing people who have no money and no assets. It didn't come up, but one of the justices also has an MBA. In our discussions about it, he was able to make the issue very clear, not only to me but to the other justices who also don't have MBAs.
That's the value of having diverse experiences on a multi-member court. Even if you had all civil practitioners, there are different areas that we're familiar with in that as well. Appellate courts, in general, are still generalist courts to the degree that you're having all different areas come to you. The exciting part of having an appellate practice, too, is that there's variety.
We have extreme variety. The Alaska constitution gives everybody the right to an appeal. We have no discretion over whether we take them. Also, Alaska being Alaska and the land of the rugged individualists, we get a lot of pro se litigants even at the Supreme Court. Many of them choose to do oral arguments in front of us. In one set of conference cases or oral argument cases, we can go from unrepresented people very angry about something that, to outsiders, looks rather small to enormous corporations questioning how they're being taxed under a particular aspect of a long and complicated tax statute.
That's different from other states where there's a discretionary review, intermediate review, and all of that gatekeeping. The court gets to decide which cases it wants to decide, or thinks are important to decide at any point. That's a different way of operating than your court. That's important. The different approaches that the different state supreme courts take, whether there's an intermediate appellate court or not, is its own civics lesson and how the courts are set up in each state. I know Nevada, in the last few years, had no intermediate appellate court. Everything went to the Supreme Court. They've just, in the last few years, set up an intermediate appellate court for some things and are working through that because their population has exploded in recent years. It was a lot of work for the Supreme Court to do.
That's how our criminal intermediate court came about. It was on the heels of the Trans-Alaska Pipeline. Apparently, it was an influx of criminal cases.
It got busy.
Yes, it got too busy for the Supreme Court at that time, so they handed off the criminal cases to the newly created specialist court.
There are always the history and the movement of people in society that give rise to those changes in the court system in each state. What advice would you give those who are arguing before your court or Supreme Court in terms of oral argument or brief writing? What's the most helpful to you?
At different times, all of the justices on the court have given the same advice to the lawyers. They don't need to rehash whatever they wrote in their brief. We read the briefs. At least we require excerpts of the record. We read all of that depending on how complex the issue is. We may spend a lot of time digging through even voluminous records, but we look at all the records that are relevant to whatever the issues are on appeal. If people want to come and just rehearse what they already said in their brief in their allotted 20 or 30 minutes, they can do that, but it doesn't further their position. We don't generally let people go on that way. We have a reputation as a hot bench.
I would imagine there are a lot of questions, "I thought you had a hot bench." I figured that didn't last very long.
It doesn't last very long at all, but it's not a good strategy.
People struggle with that. As an advocate, what does that mean? You don't want to raise brand new arguments because you're not going to go beyond your briefs. What you argued in your briefs is not helpful either.
To go back to the issue is helpful. Assuming that we are familiar with the basic facts, as is clearly the other side, explain to us why your position on this issue is the one we should agree with. It helps if yours is clearly the one that all the precedent agrees with. Even if it's not, Alaska is still a young enough state that it's not uncommon for us to have first impression issues. It's critical for the lawyers if they have identified that this is the first time we're considering this, make that point, and explain to us why we should agree with you and not the other side.
Your level of court is not just why it makes sense in this case but why it makes sense as the rule of law in the stream of Alaska law and all of that. That must be neat to still have that opportunity for a lot of first impression issues still.
It is. It seems to be particularly enticing to potential law clerks. We depend on being able to entice them because we don't have a law school.
Do you have to entice them to the state to come for that?
We do. There's always a percentage of people that want to come up here because it's so exotic. They may be here for a year and go. We recognize that and appreciate that we have that attraction, but we also try to seduce people into staying because we like to have smart new lawyers to continue.
You're training them, and it would be nice for them to continue to practice their craft in Alaska. Also, you have clerks who are term clerks because that also varies between state supreme courts and even within the court. In California, our court used to be exclusively career staff attorneys throughout the court, but now there's a mix in the particular chambers with term clerks. That seems to be a nice happy medium now to have some fresh insights and new graduates every year together with people who have continuity about the court as an institution.
It has its pros and cons. I enjoy having new smart young people to work with every year from faraway places and maybe convince some of them to stay. One of the obvious differences between being a public defender and working in an appellate court is the contact with anybody outside my office. I went from people wanting to talk to me, see me, yell at me, whatever, every moment I was at work to my phone does not ring. It might ring once a month.
People don't generally wander back into judicial chambers as a rule, and even less so because the supreme court chambers are not right off heavily-used areas of the courthouse. Selfishly that's nice. The downside is, when it gets to late August to early September, when the law clerks are good and efficient at this, we're cruising along at highway speed, and then the new people come in and don't even know where they work yet. We then have to hit the brakes very hard.
There's always that in the learning curve of the new clerks. I remember when I clerked, it was like that one week of overlap where you had to absorb everything that the outgoing clerks were telling you. You're like, "I hope I remember 1/3 of this."
Our clerks get a day. It works a little better than that because arrival and departure times tend to be staggered over a week or two. One of the experienced clerks is likely to be around to help at least 1 or 2 of the incoming clerks for more than a day.
Some judges I know, as a result of that, will stagger the clerk. They'll have two-year positions, and at the one-year mark, a new person comes in, and that's a way of staving off too much shock to the system when there are new clerks coming in.
Ours are just one-year clerks, so everybody in, everybody out in a pretty short time.
That is an important point in terms of the difference. It matters which court you're on about what that experience is. When you're a trial judge coming from a trial lawyer position, you're still very active every day. There are still people coming wanting to talk to you. You're in court every day. An appellate court is a very different life. That's something to consider for people who are considering the bench and what it likes. Is that an adjustment you could make you're comfortable with? Do you prefer somebody wanting to talk to you every minute?
It is very different. I know a younger lawyer who was an appellate court clerk and thrived on that. He went to work at one of the public defender offices and couldn't make the transition. He ended up leaving. From what I can tell, it's the difference in the two kinds of jobs that appellate clerks and appellate judges are looking for the right answer to whatever this question is.
That can take, and often does take, days and weeks of research and thinking and distilling it down to what the correct answer under these circumstances to this question is. To move to, in particular, a public defender agency or a busy prosecutor's office, you have to be able to go by with the very best answer you can come up with in the next couple of hours before you have to be in court, and not be as assured that it's the correct one. If you can't give yourself the grace to not seek perfection, it can be extremely hard on a person.
It's because you have that instinct, "I still want to turn over every stone and make sure." That's the difference between appellate lawyers and other litigators. We enjoy that process of turning over all the stones and want to make sure we've done all of that.
Other people can't stand to keep looking at the same thing for the next two weeks.
It's like, "We're going to make our best decision and move forward with that." Let's go back to when you're thinking about what it is that you want to do or your highest and best use in the law that your personality, your skills, your inclinations, all of those factors into that.
It was clear to me in law school, and it's more clear to me now, having many years of practicing and seeing what other people do. There are some people that love working with the legislature and drafting and editing the precise language in a statute. There are other people that would simply rather not work than do something like that because it's so painstaking and such a library-based law rather than out working with people.
That's another aspect of how often and in what ways you are working with people as opposed to having a more monastic existence living with the books and things like that. It's neat, in a way. I don't know many other professions that are quite as broad as that in terms of the opportunities you could have if you have different skills, different personalities, different inclinations, and different things you like to do. You can do lots of different roles within the law with a Law degree.
That doesn't even touch upon all the things people do that aren't legal jobs, but they are better at them because they have legal training.
Some of the folks in the show have been quite eloquent about that in terms of how they can trace exactly what it is about the legal training that has helped them in nonprofit work, in leading museums, in fiction writing, and all different kinds of things with the critical thinking and the way they analyze issues in business being entrepreneurs. There are a lot of different things that it's helpful for.
The fiction writing doesn't seem to be a clear connection there.
If you're a good writer, it's there, also, in terms of discipline and organization, when you're embarking on a novel over a year-long period. There's that. You have to have that creativity too. That's on top of the legal skills. In that regard, a couple of them have said that it helps them because they're a business, too, in terms of they have contracts and having to negotiate things with publishers. They have an understanding of what's going on there and can negotiate knowledgeably.
I originally had this thought that I would be a poet when I was quite young, and I thought, "That might not be the best way to keep a roof over your head, so you might want to do something else." Law turned out pretty well. They're still writing, but writing for a purpose. That's what I love. What I love about appellate work, too, is that we can make a difference for not only our clients but for a lot of other people. We get a published opinion that embraces a certain approach to the law that's helpful to a lot of other people. It's rewarding.
Law is still writing, but writing for a purpose. It can make a difference not only for clients, but for a lot of other people.
You might be able to work poetry into an oral argument.
That's what I was going to say. You want to bring something new. That's right. We can work that in some way. A lot of good writing and storytelling principles are very helpful for appellate brief writing also.
The same dry recitation of facts is not going to be engaging reading.
We want to integrate those principles because good writing is good writing. There's that too. I know it seems like an accidental almost position that you're in. You had never thought that you would be a Supreme Court Justice. Looking back, is there any advice you would give to someone who might be considering joining the bench?
They should think about what level of bench they want to do and where their interests really lie. They should talk to current and former judges to get an unfiltered impression of what it is. Certainly, from the outside, looking at the judge up on the bench creates an impression that is intentional, but it doesn't let you know what goes on when they're back in their office working. That's valuable, so the applicant has an idea of what the job entails as opposed to what they may see for an hour at a time in the courtroom.
I think back to what we were talking about earlier, being professional and collegial matters. Alaska has a fairly elaborate application process where anyone that meets the qualifications can apply. The entire bar is surveyed about that person's qualifications, including their temperament, experience, and aptitude. All of the applicants are interviewed by our judicial council, which is the constitution sets up as half lay-people and half lawyers with the chief justice the way the vice president presides over the senate who only votes in the event of a tie. There have been very few ties in our history.
Ultimately, a list comes out of the judicial commission to the governor, who must pick from one on the list. People who have taken a scorched earth approach to all of their cases with everybody are not likely to fare well either in the survey or in an interview with the judicial commission because they may be smart, but if nobody likes them, no one's going to want them to become a judge and control what happens in their cases.
To that temperament point, there's advocacy, but there are ways to do it.
It's a shift there. I was very aware of that, but I also am quite aware that despite all the support I got, many prosecutors and people that worked in agencies that had been on the other side of me for years were very concerned that I would automatically not side with them because I had been a public defender for so long. I don't think I did that. I tried very hard not to do that.
Those are good practical pieces of advice in terms of what the job actually entails, which role you are in, trial or appellate, doing well in whatever position you are in as an attorney, and also treating people well.
Do your job. Experience and competence also come in.
Those are all good things. What I was hoping to convey through the show, too, was that you have to think about those things. How do you get to the bench? What is the process in your state? Are you elected? Are you going through this commission process? You have to think about that. Is that something you're comfortable with what you feel and do?
Each court is a little bit different in terms of what you'll be doing day-to-day also. I know some of my friends who have young children. They're on the trial bench, and they're like, "My days of going to the afternoon soccer game are over because I have trials. I know where I'm going to be from 9:00 to 6:00 and probably before and after that." There's that. I can control my schedule somewhat and have court on different days, but it's not the same as having that flexibility during the day. Thinking about that, what does this mean?
I have no doubt that I could not have done this job when my kids were younger. Simply, the way our family worked would not have been possible. I'm grateful that they are grown now. With that said, I have younger colleagues who still have little kids, and I marvel at their ability to balance the extreme demands of this job with being parents and spouses.
All of those things are considerations and thinking about timing and what's appropriate for you. I know that a lot of new attorneys and law students hear about mentoring. It's good to have a mentor, but they don't know what that looks like, what that means, or how that works. I was wondering if you had experiences with mentors in your law career and what that looked like for you.
I came to Alaska for a one-year clerkship in 1987. It has turned into a rather long year. I clerked for a Justice of the Supreme Court, Jay Rabinowitz, who I didn't know at the time but was absolutely legendary in Alaska. The courthouse where I am now is the Rabinowitz Courthouse. He was very instrumental in both exposing me to Alaska and introducing me to people. I have a sense, in retrospect, that he simply called the Public Defender Agency and told them to hire me, which they did. The head public defender that hired me at the time was the justice who retired and whose place I have taken. It's a small legal community here.
She was instrumental in mentoring me, letting me know why she thought I should apply for her job and what the job was. I've tried to do that, both in the legal field but also just in the community too. As much as I enjoy having new law clerks, I also know that I have an obligation to them to help them make the transition from the last step of their formal legal education into being actual lawyers, to help them not only gain research and writing skills, maybe more than they want to certain days and weeks, but also to help them figure out how to be a professional. I enjoyed doing that, and I take it quite seriously.
I feel from my clerkships that's where I learned how to be a lawyer and practice law, as well as all of the research and writing skills, but I learned so much from the judges I clerked for. It felt like I learned how to think like a lawyer in law school, but I got the nitty-gritty training from the judges I worked for. It's an important transition year or two and an important role that the judges take on.
In a bit of a secret society, as a law clerk, you can see what goes on when no one else is around and looking.
A law clerk can see what really goes on when no one else is around, when no one else is looking.
That forever impacts your approach as a lawyer in terms of what you know is effective in terms of how you make arguments and approach the court and what things the court is concerned with. It goes into your bones, and you have what feels like an instinct, but it isn't. It's a lot of exposure and hard training. You don't have the opportunity to have that perspective again. You're not on that side unless you join the bench after that. It's a unique opportunity in that regard, too.
I probably should tell you that you are being drawn into my mentoring of my current group of law clerks, who are all sitting in my office here, along with my husband and my assistant.
That's great. I'm glad to be in a virtual part of the mentoring. That's very cool. How did it feel to be on a court that you clerked on? Some of my friends have clerked for the court, and now they're a judge on the court. That seems surreal.
The most surreal part was early on, one of our retired justices was on a panel in a case because, for some reason, one of the current justices couldn't. He had been on the court when I clerked. He's well into his 80s, but he continues to take cases. In our conference, he disagreed with me and started out by saying something like, "Susan, I don't think that's right." For a minute, I felt like I'd been called into the principal's office.
You're immediately down to the law clerk level or whatever it is, and you're like, "All right."
"Did I do something wrong?"
That's what some of my friends have said when their judge is still on the court that they're now judges on, and they're like, "It's a little challenging to keep that colleague level as opposed to clerk-judge."
One of our newer justices clerked for the current chief justice. That's interesting to watch. They're both very excited about that because it's very uncommon.
Speaking of mentoring someone and then reaching that position with them, that's pretty cool.
It must have been a good job of mentoring.
That's what I was to say. There's a sense of, "I did something right. It helped." They probably were working with some good raw materials, too. It's always nice to see somebody you have helped grow and become the best they can be. To see them accomplish something great and use those skills in a good way is always nice. Thank you so much for doing this and for chatting and participating in the show. I appreciate you sharing some of the civics lessons from Alaska also, which I really appreciate. Normally, to end, I'll ask a few lightning-round questions if you're prepared. The first question is, what talent do you wish you have but don't?
To pick up other languages more easily.
For what in life are you most grateful?
My family.
If you had a dinner party, who would you invite as dinner guests? You can invite anyone in the world.
The Boston Celtics.
I see that the sports aspect and competitiveness are coming out. That's a nice full circle. Why the Celtics, in particular?
It's because I grew up in the Boston area. I grew up watching the Celtics.
Any particular era of Celtics?
In the early to mid-70s is when I started watching.
Who are your favorite writers?
I don't know if I have a favorite writer. I know I spend so much time reading and writing here. The amount of time I spend reading anything else has dropped precipitously.
In law school, there was a precipitous drop in reading anything other than legal cases and things like that. I was wondering if that was the same effect from being on the court. It's a lot of reading and writing. Last question. What is your motto if you have one?
I don't.
Don't you have a motto?
No.
Thank you so much again for joining and having this chat. I enjoyed it. I hope that perhaps we can encourage more law students to consider applying for clerkships at the Alaska Supreme Court as well.
I would love that too.
Thank you so much.