Episode 67: Molly Dwyer
Clerk of the United States Court of Appeals for the Ninth Circuit
00:56:45
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Show Notes
Molly Dwyer is the Clerk of the United States Court of Appeals for the Ninth Circuit. Prior to serving as the Clerk of Court, she served as deputy clerk and as a staff attorney with the Court. Prior to law school, she attended the London School of Economics and was an assistant to the author Doris Lessing. Molly reveals that fateful day she got off the bus across the street from the beautiful James R. Browning courthouse in San Francisco, and applied for a staff attorney position she saw posted on a bulletin board inside. She also provides insight into the role of both staff attorneys and the Clerk's office, and how they help lawyers and judges provide access to justice. Discover Molly's story, and gain insight into the Ninth Circuit, in today's episode of The Portia Project.
This episode is powered by Posh, LexMachina and LexisNexis.
Relevant episode links:
United States Court of Appeals for the Ninth Circuit, The Golden Notebook, Angle of Repose, Justice Durham – Past Episode
About Molly Dwyer:
Molly Dwyer, Photo Cred. Alex Clausen
BA St. Michael’s College, Vermont 1981
MA International History, London School of Economics 1984
State University of New York at Buffalo, J.D. 1988
US Court of Appeals for the Ninth Circuit 1988 to present – Staff Attorney, Supervising Staff Attorney, Chief Deputy Clerk, Clerk of Court
Transcript
In this episode, I'm very pleased to have Molly Dwyer join us, who is the Clerk of the United States Court of Appeals for the Ninth Circuit. Welcome, Molly.
I'm happy to be here. Thanks for having me.
One of the missions of the show is to talk about career paths or positions that people haven't thought of as something you could do with a Law degree or with legal training. I thought you would be helpful to talk about something that I do not think people think about in terms of being a clerk of court, what that involves, and how you come to that job. First, I wanted to start with the law in general in terms of how did you decide you wanted to go to law school and become a lawyer.
I lived in London for several years after college doing a variety of things but mainly, I was working for the author, Doris Lessing. As my career unfolded, I was her law clerk doing all the things that she did not necessarily want to do in aid of her accomplishing the thing she did want to do, which was to write multiple novels.
I needed to come back to the states at some point. I thought, "I will go to graduate school." I applied to a bunch of graduate schools. I had gotten a Master's in History from the London School of Economics while I was there and thought I would go on. I then realized, "I do not want to end up in Iowa." Not that there is anything wrong with Iowa but I did not want to do that, so I switched gears midstream and said, "I will apply to law school."
To make a long story somewhat shorter, I eventually went to the University of New York at Buffalo for law school. There were three attractions. One was my father had died, and I could live with my mother, who needed some help. Also, it was super cheap, and I could afford it. Thirdly, they would allow me to take History courses simultaneously with the Law courses. It would make it less mechanical, so I did that.
You could marry both of your interests in that way and still be involved in History.
Even then, honestly, I wasn't sure I wanted to be a lawyer but I saw that the education of laws that you get in law school would be valuable for something. I had no idea what I wanted to do, so it came together perfectly.
That is an interesting point, which I had no idea you were going to say like, "I was in London, and I was working with this famous author." How did that happen, and how did you come to go to London and do that? I'm curious.
I went to college at a tiny little Liberal Arts college in Vermont, Saint Michael's College. Coincidentally, one of my professors there had interviewed Doris for articles and books that she was writing and knew her. At some point, right around the time I was graduating and trying to figure out what to do, she needed someone to come, live in her house and take care of her cats.
She had two cats that only ate fresh food. One of my responsibilities was to cut up rabbit hearts. She was doing a lot of traveling at that time, and she needed to do something to take care of her house and stuff. I volunteered, and then one thing led to another. She sponsored me to go to the London School of Economics and paid for me to go there.
That is an amazing institution. That is a great opportunity.
Going into law school is a path that one way or another, you could figure out what to do.
For those people who are fans of Doris Lessing, I always tell the small story that one of my biggest claims to fame in retrospect was one super stormy night. She lived in a beautiful four-story townhouse in West Hampstead. There is pouring rain. She lives at the very top of the house, and she calls down, "The roof is leaking. It is flooding." My mission was to crawl under the eaves of the house and save what turned out to be the original manuscript of The Golden Notebook that was in little carrier bags underneath the eaves. For any feminists out there and the people from the ‘70s, that was my thing.
That is monumental. The Golden Notebook is very pivotal. At least, as far as I know, it is her most famous work.
I do not know what happened to it but I’ve at least got it to the next year.
I like your reasons for choosing the particular law school that you went to. Sometimes, there are some real pragmatic things and things that are happening in your life that you are like, "This makes a lot of sense because something that is happening in my family or the cost of it is affordable." We all have lives, and that factors into decisions that you make.
I have a couple of my own children now. My experience is more than just going to the best law school. Can you afford it? Do you want to do whatever it is that you will have to do if you owe somebody $100,000 or more when you get out? There are a lot of choices that people need to take into account when they make those decisions. At the same time, you also need to be standing in the right place at the right time for all things to come together.
One of the things that we considered in my time when I was choosing a law school was, "Where do you think you want to practice?" For example, if you are choosing between schools that might be relatively comparable in terms of their rankings or whatever, if you are planning to practice in Southern California, maybe UCLA is the place to go instead of Georgetown to think about where it is.
You might want to build some connections as well. The other factor being, at least in my case, that the UC at that time was a pretty good deal. That also worked out well. You mentioned that you thought that the skills would be useful but that you might not end up practicing. You thought about that already when you were in law school itself.
I was the first person in my family to go to college. I did not know any lawyers. I did not know what they did. I knew I wanted to keep going to school because I wanted to get a real job. I looked into it enough to know that the combination of the way they taught Law at Buffalo specifically and the access to other kinds of courses was more attractive to me because I had already been leaning towards grad school. It is partly about who you know.
My mother was like, "You are going to law school. This is great. You will be a lawyer." I do not know what I'm going to do. I also knew that I did not want to get an MBA because that seemed super boring to me. This seemed like a path that, one way or another, I could figure out what to do. In my first year of law school, I thought what I wanted to do was do Immigration Law, which is a point that relates to how I ended up with Ninth Circuit. We can talk about that later.
In your first year of law school, you are there, and it is so competitive, and everybody seems to already know what they are going to do. A lot of my friends in law school's parents were lawyers, so they already knew or at least imagined a path. I graduated from law school in 1988. I had already been out in the world post-college about five years by then. That was important, too. Going to law school right out of college, I do not know that I would recommend it and people do it obviously but between not having experienced much yet and the debt that you are accumulating, it may not be the first choice I had to make.
There is a corollary there. First, law school is hard, so you want to make sure that it is something you want to do so you can remain committed through the difficulties, especially the first year because you do not know why you are doing something. With at least some general signs of purpose and meaning, it is hard to stay with it and stay committed to it. I went straight to law school. I was pretty certain that is what I wanted to do, even though I did not have these lawyers in my family, and I did not know anything either but it seemed something I wanted to do. It had some skills that I would be good at if I honed them.
If you do not have that sense, it is a lot harder to stay through it. In terms of digital clerkships in our time, coming out of school, people would go straight into a clerkship out of law school. Now there is some time of practice in between it. I did have one clerkship that was direct and one that I had practice in between.
I learned so much more from the second clerkship. I had some orientation before I came to it in terms of practice that I had seen these filings, and I had done some of them. I brought a little bit more to that position. As a result, I was looking for more in terms of learning. I see that in terms of law school, too. You have some of that background. Your experience of law school is going to be different because you are attuned to different things.
I do not want to portray myself as completely clueless but that is the truth because I remember distinctly sitting in my Federal Courts class when all, whatever they were, got their clerkship offers. I had never heard of the clerkship. I did not even know it was a thing. I'm like, "Why are you getting a job already two years before you are even going to graduate?" It was so foreign to me to be that was like, "Wow." All these people were super excited about their Second Circuit clerkships. That was eye-opening to me that you could work for a court. I had no idea.
It is something I recognized or learned about in law school as well. It sounded pretty interesting, and it is a great way to learn. I always feel like I learned certain things in law school but I was trained to be aware by the judges I worked with. Once you graduated, did you practice? What did you do when you came out of school?
While I was a Law student, I did an externship for a local district judge in the Western District. His clerks encouraged me to apply for clerkships, which I did not do because I had already missed the cycle. It was too late. After my second year, I came to San Francisco to work for a sole practitioner who was doing Civil Rights work, specifically where she filed an ultimately failed lawsuit against dry cleaners because they were charging more for women's shirts than men's shirts. Her name was Mary Dunlap. She seems deceased but I had a great time working for her. She was also working on that gay Olympics case back then. I had a great experience with that. I went back for my third year of law school, and I wanted to come back to San Francisco.
It was that same summer in between 2nd and 3rd years. I drove cross country to Portland with a friend from law school. She had a summer job up there. I came down on that crazy Green Tortoise bus. I do not know if you ever heard of that. It is a dilapidated bus that brings you from Portland to San Francisco. It let me out across the street from this Browning Courthouse where I was sitting, which was then a Greyhound bus station.
I'm getting off the bus. I said to the bus driver, "What is that beautiful building across the street?" He says, "I do not know. It is some kind of court." I had my little backpack and walked across the street. I had come into the Browning Courthouse. Outside my office is a bulletin board in which they advertise jobs. One of which was a job for a staff attorney with the Ninth Circuit Court of Appeals, which I applied for. I have been here ever since.
That was such a movie story, and the building is incredibly beautiful.
I applied for this job, came out, and had an interview. Back then, we hired staff attorneys for a two-year cycle. I’ve got the job despite committing every interview known to humankind. Specifically, at that time, they were engaged in one of the many political disputes in San Francisco about whether to build a baseball stadium. The guy I was interviewing with had all these newspaper clippings all over his office. I said, "Do you think we should build a stadium here?" He did. We hired him despite being an idiot. I came here for whatever that two-year cycle and managed to weigh that into a many-year career.
I do not know that people will necessarily know what staff attorneys do on the Ninth Circuit. There are, what we talked about in terms of clerkships, specific clerkship positions in particular chambers of the judges around the circuit. There are also staff attorneys. Maybe you can talk about what you did in that regard and what role they play.
If you know anything about the Ninth Circuit, you know, the laws are almost never clear.
All the circuit courts in the country have what we call a central staff. The most famous clerks are the clerks that work for the individual judge. The less famous members of the staff are the staff attorneys. We labor in anonymity. Different circuits have different approaches. Some circuits have career staff attorneys. Some circuits like ours have limited tenure staff attorneys. When you get into the workings of the court, you find out that lots of time and effort are put into the cases that we all learn and focus so much on in law school. The cases go to chambers and then get processed by the three judges. That is one track.
Meanwhile, there is another track of cases in every circuit court, which are the cases that are individual plaintiffs, where the law is well settled. The result is clear. If any of you out there know anything about the Ninth Circuit, you know the law is almost never clear. The result is maybe less. All pro se cases go this way. Most of our immigration and Social Security cases go this way. About many as 2,000 cases a year get decided by this process.
The process is, you, as the staff attorney, get a case and read through the briefs and the records in the case. In the Ninth Circuit, you orally present your recommendation to a panel of three judges. You say, "This is what the district court did. This is what your options are. I recommend you pick this one." They will talk about it with each other and you, and they will decide the case. At one of these sessions, a panel of three judges could decide as many as 100 cases this way.
That is the screening panel.
That is our screening panel. That is what we call our screen. All of our judges have to do that once a year. It is this endless parade in a dark, airless room of people telling you things. We do our motions practice that way. Staff attorneys also do that if you have a big motion to COVID regulations, pending appeal or something like that. One of the staff attorneys will be through the pleadings that the lawyers file and talk to the panel of three judges who may or may not have an argument.
It is a super cool way to dig into a complicated case and have a conversation with three judges about it based on your research and analysis of that issues. It is a ton of fun. It is very different from what law clerks do because a law clerk is devoted to their own judge for that judge. The law clerks do not go to the conference after an argument. This is a conference after an argument, "Here is what's happening. Here is my best guess and what you should do." It is a lot of fun. Staff attorneys stay at our court up to a maximum of five years, and then they cycle out something else.
One of the staff attorneys I know when I was clerking, we would get our packet of cases, and they would have the waiting on them. This is 5 or 10 best guess of how complicated and challenging each of the cases were so we can divide them up in some sense of evenness of workload between the law clerks. That is something that staff attorneys do, too.
That is another thing they do. We have a little group of staff attorneys. They are called the case management attorneys, and they assign these numerical weights, which are more of an art than a science. We never hear panels of judges complaining that we accidentally rated something at ten but you hear things complaints all the time, "This is not a three."
"That is underweighted." That was the biggest complaint because people are expecting something, and they are like, "My workload was larger than I thought." People remember that.
I spent six months on what we call the Lend-Lease working for Judge Bill Norris in LA early in my staff attorney career. I’ve got this big environmental case that had been weighted at ten. I figured out that there was no jurisdiction. The notice of appeal turned out to be untimely. It is the easiest kind of jurisdictional defect. I went around for weeks gloating about my ten-way bench. I'm guilty of it at most.
That is something you do not see coming. If you reach the merits, it is a ten but if we have a threshold problem, that is different.
Now, we are short-staffed because of national budgetary issues. We usually have around 80 staff attorneys we recruit year-round and hire when we have the finances to do it. When I started, most of the staff attorneys came right from law school. These days, they often come after another clerkship. Maybe they are at a point in their career where they want to do something that is more in their control rather than practice, which can be chaotic, especially if you are raising a family. They have been super great during the COVID. I think I will never see them again. They work from home almost. We have a Director of Staff Attorneys, Lisa Fitzgerald, who's great with them. She has been doing that for years. She manages that whole program, which has been wildly successful.
Even if you are staying for a few years, it is not truly a career. There is such a steep learning curve in the beginning that it is nice to have, especially for the motions, emergency motions, and things like that, to have somebody who's had at least a couple of years of experience, as opposed to a judicial law clerk who's coming in and may have been there a month. That is a totally different situation.
You get a lot of experience writing because you are writing draft decisions for the panels. Frequently, we will use staff attorneys to help out with bench memos for the regular argument calendars when the judge had otherwise indisposed law. You have learned this in a traditional clerkship as well but you learn that you can do the job of being a lawyer because I often say that law clerks and the staff attorneys see this all the time.
Given the amount of time law schools focus on oral argument, first of all, remember that in a quarter of the size of the Ninth Circuit, we only argue about 1,400 out of 10,000 cases. All that time and effort on that ten minutes of oral argument is not where you should be spending time. Where you should be spending your time is on the writing, "What do you want? Why do you deserve it? Why should I give it to you?" Here is all I needed to learn to tell you the answer to the question you are asking.
You do get a lot of experience writing and get a lot of experience with these panels of judges of what's important to them. They know a lot. Most of them have been on the bench for several years. These cases are not new to them. We always come in, "This is such a novel issue." To them, it is not. What's important to them? What sets them off? I had a case long ago where it was a mandamus petition. The petition was based on the trial lawyer complaining that the district judge, who I will not name, had blown him off in favor of a personal appointment.
He had rescheduled his personal appointment and trashed the trial judge in this mandamus petition. Shockingly, the 3 judges on the panel, 2 of whom were from the same district as this judge. I'm sure they were fair but they were so pissed that this guy was trashing this judge by name in his pleadings. There was no way he could have won. I do not see any legal way he could have won that argument.
You learn things like that. You watch a ton of arguments. You learn as we all should learn as lawyers. If they are sitting on the bench and asking you a question, that is the question you should answer. Not the one you wished they had asked, not the one you practice at the new court but the one they asked. My other tip to the uninitiated is do not roll your eyes when they ask you a ridiculous hypothetic. Many people do that. That is not a popular thing.
They are asking for a reason. Sometimes, there are things that you did not think about it but that is often why I like to get as many questions as possible from many smart people who it is not their case. They are not deeply involved in it. You come with a different perspective. Each person comes with a different perspective, just like each judge does. The more of those perspectives you can have from the questions, the better. You are going to be less surprised.
The three judges on your panel are wildly prepared. They have thought of the case from every which way, and they expect you to be prepared. It is one of the things you learn both as a clerk in chambers and as a staff attorney hanging around the court all the time. How many people show up, and they are not prepared? They have their little list of things they are going to talk about. That will help them if the judges go off-script.
It is okay to tell a judge, "I haven't thought about that. Let's work it through together." I would be interested in your perspective. I know you are supposed to be asking me questions. After two years of video arguments, the ones I have watched and the lawyers I have talked to have welcomed this weird intimacy that comes from this conversation, as opposed to the big courtroom with 6 feet between you and any live human beings and stuff. I wonder if some lawyers have actually done better in their arguments in this than in person. I do not know.
The one thing I miss, and I know that the judges miss, is the interaction with each other. I like to see that, so I can get a sense of body language or whatever. When they are in separate locations, that can be hard. On the other hand, you have a much closer visual connection to them than you would be if you were in the courtroom as people get comfortable with that method.
You want to be a staff attorney when you're at a point where you want to do something that's more in your control.
There is a little bit of something different to each of them that you can't necessarily say, "One has this, the other has that." Each is different depending on the particular argument, and you know how that goes. That is an important question now that we are more hybrid and are still doing video, and we are just starting to come back in person. Earlier, people would have said, "I totally want to be in person." I do not know if everybody would say that now, having had that amount of time.
I do not know what the court will ultimately do. I know they are going to have to think about it and make some decisions. Before the pandemic, they did not allow it at all. They allowed themselves to appear by video but they did not allow you unless there were wildly unusual circumstances. We had our first week of in-person arguments. We are sitting again in San Francisco and Pasadena. We have had a mixed bag.
Quite a few lawyers showed up in person, which was great. We have a vaccine mandate. Quite a few lawyers, particularly government lawyers, not exclusively but a lot of them, did not make the trip. People said, "I will be on Zoom." I do not know what will happen. It will be interesting to see. It is going to become calculus. Lawyers and their clients are going to have to make it. It is super expensive to send a lawyer somewhere overnight to San Francisco for ten minutes. I do not know the answer. The judges have missed the arguments and being with each other.
Since the summer, they have been traveling and seeing each other, and you all have to continue to appear. We have 29 active judges and about 15 to 18 senior judges. It thrives on you knowing the other judges. It is not so much what their approach to the law is but it helps to know their families and what's going on in their lives. They need to be connected with one another on a personal level before the whole thing work. We have suffered as a court through the pandemic.
I remember as a law clerk thinking that one of the best things was being based in Pasadena and having other judges in their clerks come for the court to sit every month. If we were there too, then I would host all the clerks already come over for dinner and have that connection. It made it even easier between the clerks if we were working on another panel together later to be able to have that connection and know who it is you are coordinating with or asking questions. It made the circuit, which is quite far-flung, seem a lot smaller.
It is easy to sling arrows at somebody you do not know. You might put a little bit of padding on the arrows if you know the person you are spending at. That civility and respect for your fellow colleagues and law clerks that the in-person contact are critical to the success.
I want to get back to you and you are never leaving the circuit from the time you’ve got there. How did that happen? There is a limit on the staff attorney roles, so I'm assuming you had other roles before a clerk then.
I was a staff attorney, and then I became the Supervisor of the attorneys who do the motions practice for a while. It was 1996. I was coincidentally in Florida at a conference. It was when OJ Simpson and his Bronco were making their way through Los Angeles. I was watching that on the news at the end of my meeting when Cathy Catterson, the long-time clerk of the Ninth Circuit, called and offered me a job as her chief deputy.
I became the Chief Deputy Clerk in '96 and stayed. I love Cathy, and I would work for her forever. Sadly, she left me at some point and retired. When Judge Kozinski became the Chief Judge, he decided that the way he wanted to run the court was to have Cathy be the queen of everything, as we called her. I was the princess of quite a lot.
I became the clerk, and Cathy became the Circuit Executive at that time. We did that for seven years. When Judge Thomas took over, Cathy retired, and I came to clerk. You have a different arrangement now. We have a Circuit Executive, who's Susan. She used to be my Chief Deputy back in the day. She left me to become the clerk at the Northern District.
I knew that but I did not realize that connection. That is cool.
It is an even weirder connection. Soong was also from Buffalo and went to the University of North Dakota. We did not know each other at the time. There is a weird Buffalo thing.
There is a Buffalo connection to the Ninth Circuit in San Francisco, which you wouldn't think.
I loved it here from the minute I’ve got here as a staff attorney. I was happy to stay. It turns out that my talent is not so much being a lawyer but being a problem solver. That is what I'm good at. It turns out that is what I discovered. That is how I would articulate my skills. From your own clerkship, there are many problems that happen every day at the Ninth Circuit Court of Appeals, some real, some imagined, some big, some small. I try to make everybody happy. My codependent oldest child Irish Catholic thing turns out to be perfectly well suited to having 50 parents.
It is so challenging because you do have many individuals who are lifetime appointed and have particular ways to do things and reconcile all of that with each other, with the court operations, and all of the lawyers participating as well. There is a lot to work with.
I try to wake up every day and say, "What did the lawyers need? What did the judges need? What did my staff need?" We try to marshall everybody in the direction of our mission, which is to provide access to justice and swift decisions as fast as we can get them out. All those people are individuals. The mission is collective. The lawyers and judges are working together. Most of the time, it works. Sometimes I learned the hard way as we all do like, "That was a dumb idea," and then we will try another idea. It has been a lot of fun, and it still is fun even after all this time.
That is important. It has got to continue to be fun at least 70% to 80% of the time or else you start wondering why you are still doing some things. It is as long as it is enjoyable to that degree. You feel like you are contributing. You are keeping things moving and working towards the common goal of access to justice for everyone.
That is a different way of problem-solving, too. Justice Durham, who was on the show and others, said, "I wanted to become a lawyer because I thought that it would help me solve problems for individuals and in society. I could use a lot to help work those out." It is interesting that you say, "I'm a problem solver, too." When you say that, there is a little more pragmatism to that.
In the end, it goes back to my point. I applied specifically to work at the Ninth Circuit because the problems I wanted to solve were immigration-related problems. I thought I would become an identity immigration lawyer. In law school, I loved it. I enjoyed my clients there. I thought that was the direction I was going to go in.
At the time, Judge Betty Fletcher had decided an important immigration case. I was so in awe of her and her decision that I thought, "I had never heard of the Ninth Circuit Court of Appeals." I have never left Buffalo, New York, in my life. I came out here for that reason and found out that the way I could help solve problems was not through the law but becoming, for all intents and purposes, the COO of the court. It was both deliberate and accidental. That is the key. In your own career, you have had situations like that. It was a plan but it did not turn out the way I had imagined it but it turned out great nevertheless.
It is one of those many things in retrospect where you put together all the different pieces of experience, particular gifts or skills that you have and go, "It makes complete sense. This is the way I would serve. This would be the most meaningful way," but at that time, it is not that organized.
Life decisions come into play. At that time, I became the Chief Deputy. I had been interviewing with firms but I also had a couple of young children. It just made sense. I already loved this job. It was an opportunity to do different things here. I know people love it but discovery is not my thing.
When a judge asks you a ridiculous hypothetical question, do not roll your eyes.
I can understand why you are saying that. I recall when I went from litigation to doing appellate full-time. At the time, there were angry faxes on my chair when I came back from lunch. There aren't faxes like that anymore but it was the angry emails now.
It is the general messiness and all that stuff. A lot of it is keeping your mind open and listening to other people. My network turned out to be not so much my friends from law school but former law clerks that I had engaged with here at the court. I'm now at a terrible place in my career where the former law clerks that I engaged with the court became judges. I'm like, "I could be your mother."
I do not know that I could have predicted any of the most recent appointees would-be judges but it doesn't surprise me. The law clerks, as a group, are super talented and ambitious in a good way. We ended up with a number of people coming back to us as judges. It is cool. That is the way this system should work.
It is like a constant renewal in that way too, which is cool. It is being ambitious in the way of wanting to contribute and serve. That was my impression for most of my fellow clerks when I was there. The Ninth Circuit is innovative in a number of different ways in terms of the Appellate Mediation Program, commitment to the pro bono cases, and the law school clinics that also litigate through the pro bono program. Those are great initiatives in the Federal system, at least where it started in the Ninth Circuit. There are other circuits that have them now but it was pioneering in that way.
There are many people over the years who think, "The Ninth Circuit is too big. We need to split it up." Anybody reading may be familiar with all the many efforts to split the circuit always fall apart because California is big enough to be its own multiple circuits. I'm a firm believer that the circuit is run well. I suppose I'm biased that way.
I believe that the judges, over time since Judge Browning's days, have done everything they could to be on the cutting edge of technology and understanding that not every case is Apple versus Microsoft, that every case doesn't need the same attention that you need to do triaging. We have very active staff who manage the cases with a single goal to preserve our most limited resource, which is the judge's time.
We only give them cases that are ready to be decided, novel, and raise issues of publication value that are complicated in some way. We use our staff to mediate. They mediate and settle about 1,000 cases a year. We process our cases aggressively upfront to remove all the cases that are jurisdiction deficient or otherwise suspect. We have been live streaming our arguments for years. We have video conferencing everywhere. We have, for years, locked in a box. If you had an Arizona case, you always had to come to San Francisco to argue it.
We have opened the flood gates, and we are sitting in Phoenix now or Las Vegas. We are trying to be more accessible to people. We are big but we think that we are able to handle that caseload. Most people think it makes sense to have the whole West Coast be a single circuit. Your commerce and environmental issues are all directly related to each other up and down from Montana down to Orange County or whatever the Southernmost part of LA is. The thing that we are doing now, I need to put in a pitch for it.
As much to the dismay of my employees, I like change, new ideas, and gadgets. We did one of those Myers-Briggs tests once, and I was the only one who was not whatever the thing that all lawyers are. I'm more of a perceptive person. My awesome IT Director, Ryan Bean, my Director of Staff Attorneys, Lisa Fitzgerald, and my entire clerk's office are engaged in a project to develop new case management that will replace the electronic filing system that you all use where you are filing immigration cases and second in successive petitions in there. We are working with the Second Circuit to do that.
It has been a ton of fun to try new things. We found all kinds of these digital things that we do because we have always done them that no one cares about. Any institution like this is a big bureaucracy. One day, a judge yelled at me about something. Now I have a whole policy about it. It turns out we do not need that. It has been a lot of fun. It is exciting. We are going to be able to carry on with it. The lawyers that are using it seem to be happy.
I have engaged immigration practitioners to help me fend offenders. These are all the reasons I'm still here. How long do I last? I do not know but it has been fun. We have had fourteen new judges since President Trump first took office. We have two more judges who announced they are going to take senior status when they get their replacements appointed.
The court has changed a lot since I have been here. Judge Fernandez remains one of my favorites. If you are in the Seventh Circuit, you've got all the judges right with you. You see them all the time. Maybe it is great. I like the idea that we are everywhere. I never know who's going to walk in my door because I never remember who's sitting. Judge Kristen popped in. I'm like, "I did not know she was here." It is fun to see people again. I have been here at my station for a few years, pretty much by myself, with my handful of staff delivering mail. Everybody else has been working at home, so it is nice to see people.
It is nice to have that again and connect with people in that way. I do not know if you want to or not but to talk about the pro bono cases and the opportunities to do that. That is a great opportunity for Law students who do not take Ninth Circuit clinic classes, which would allow them to have a case in the Ninth Circuit during law school and to argue before the court. The next best opportunity as a newer lawyer is the pro bono cases the circuit has. Maybe you could talk about that.
Several years ago, we developed a pro bono program. I feel bad talking about it because you are all going to think it is great and want to do it. The problem is we have more people who want to do it than cases.
There is that challenge. Unless you put your name in the hat, you never know.
You do not get what you do not ask for, so you put your name in the hat. We have cases, often immigration cases, and other types of cases as well, where we appoint pro bono lawyers to represent usually the petitioners but appellants. You write the brief for them. The reason we have so many people is because you are automatically guaranteed argument, which is pretty hard to come by ordinarily. You will come and argue the case.
The pro bono lawyers have a super winning record. They are victorious in more than 50% of their cases, which is a lot higher than the average appellant's lawyer. It is a great program. We have expanded it slightly because now, sometimes, we want you to do a pro bono mediation. If you are into that kind of thing, you could try that. We have opportunities for people to write briefs that do not get documented. Still, it is a good thing to put on your resume. Honestly, we are thinking of limits. Maybe you would write us two briefs, and then we would give you an argument or whatever. Every law clerk who leaves puts their name on the list.
The judges get a little crazy because oftentimes, these cases wouldn't be argued. They would be submitted on briefs, so they find their hands tied at the last minute. We try to help by putting those cases, not necessarily on a Friday where you might have people wanting to submit more of their cases. It has been great. Everywhere I go, people want to do that. I wish we could have more opportunities. I do not know off the top of my head how many we do a year. I'm going to guess and say it is 25 or so. As I say, if you are reading and you want to be on the list, send your name to me, and I will get you on the boat.
That is what I say. You do not know if you do not ask, so you’ve got to do that. When I was co-chairing the Appellate Practice Committee for the ABA, we did a handbook on each circuit and the opportunity for pro bono appeals. That was a couple of years ago. Even then, still, the Ninth Circuit has the most robust program.
There were still other circuits that had them but they were not as many cases at one time as you mentioned, more of an ad hoc way of getting people involved with them. If you are reading, there are other circuits that have this, and there is an ABA guide that focuses on those opportunities. If you are admitted to other circuits and want to have those opportunities elsewhere, you can do that, too.
In terms of other ways for lawyers, not necessarily newer lawyers but lawyers throughout the circuit to get involved, we have Appellate Lawyer Representatives, a program that has been dormant for the past couple of years because of the pandemic. I will be advertising for new appellate lawyer reps at some time in early summer. Those are people that the court selects from people who apply for the job. The job insists on being an advisory council to the court. I would guess that a hot topic for that group would be when and whether lawyers and judges should be able to appear by video, for example.
They often talk about issues related to how to make you look better on an iPad because judges read your brief, so you should think about that. We have a rules committee where we take names from practicing lawyers for positions on that committee. The circuit executives office has tons of different committees, education committees, and jury instructions. NC probably knows more about them than I do. There are a lot of ways for lawyers to get involved at the circuit level and the district court level. All the districts have a process in place for selecting the district lawyer representatives.
Pro bono lawyers have a very good winning record. They are victorious in more than 50% of their cases.
In my time, the Appellate Lawyer Representative was most proud of the handbook that we put together. That is on the website and has since been updated. It is a nice overview of different procedures that makes the court's life easier in terms of as many questions as you get. It is a great handbook.
In your time, we also have a mentor program. People like yourself volunteer to mentor a newer attorney. One of the weird things about the Ninth Circuit is that we have a bar that is 50,000 people. Most people come for one case, and then they do not do it again for ten years. Each time, it is a new beginning. It is helpful to have somebody who practices here regularly to run the questions. That has been helpful.
That is also a great program. You are right. It doesn't necessarily mean you are a newer lawyer. You could be practicing for quite some time but it may have been a while since your last Ninth Circuit case or maybe it is your first Ninth Circuit case. It is nice to have someone bounce questions off and ask, "How do you do this?" Thanks so much. I did not realize we were going to learn as well about the staff attorney role. An important thing for people to consider also is another option to work. That is an added bonus to this discussion, Molly.
There are others in terms of pitching things. The clerkships individual judges get the most attention but there are magistrate judges who need clerks. They are pro se law clerks at the district courts. There are Capital Case Law clerks at the district courts. They are not the most transparent opportunities out there in the Federal system for people to come and learn more about the court system as well as in the administrative office.
In one of the first episodes, we had a magistrate judge on the show. One of the things I wanted to do was open up both for people in terms of what judicial positions they might consider seeking but also, "This is another opportunity for clerking." You would see a different part of the Federal system. Are you ready for the lightning round of questions?
As ready as I will ever be.
Which talent would you most like to have but do not?
I had like to be in more than one place at a time.
That sounds very useful, particularly for your position.
I do not know how many places I would need to be in but I would like to be in more than one.
What is the trait you most deplore in yourself and others?
Procrastination in myself. I get energy off on the deadline. If it is so far in the distance, I get no energy, so I do not do anything. Also, dishonesty in myself.
I did not know that I had been procrastinating but I have something in terms of writing. I'm not someone who writes a ton of drafts and finds the ultimate product to the drafts. It got to filter through first, and then it all comes out organized. Until that processing has happened, it is not going to happen.
When driving, that is when I do my best writing.
It all gels, and you are like, "Now I see what I'm going to do." This will be interesting in terms of the way we started. Who are your favorite writers?
Hands down, Faulkner always has been my favorite author. Sadly for me, my first-year Research and Writing instructor claimed that my writing was a bad process between Faulkner and Virginia Wolf, which I took as a compliment but she did not mean it. Acculturation is not my specialty. I guess it is what she was trying to tell me. I have read all Doris's books. She was great.
That is funny that you would say that. I do remember being completely broken down in terms of my writing the first year in law school and thinking, "That is what I do," and then they are like, "No."
My favorite book of all time is the Angle of Repose. I have read it multiple times, and I have made my children read it. It is brilliant.
What do you like about it?
I love the whole way he evokes California, the nature of it. I can't look at one of those little Oak trees without thinking of that book. I love everything about it, and the history, memory, and its importance.
I'm going to go and look at that book now that you reminded me of it. Who is your hero in real life?
There are so many. I'm going to be a zap and say my children. Both of whom have gone through significant health challenges. To me, my success as a parent is their resilience. I will give them the nod as heroes.
Depending on the day, sometimes I can be with parents and children. For what in your life do you feel most grateful? It might relate to your earlier answer.
There are so many things I'm grateful for. The obvious answer is my family, extended and immediate. The thing that I'm most grateful for related to this conversation is I have been super lucky to be in the right place at the right time, be able to do interesting, meaningful work with smart people, and have a lot of fun doing it for so long. I'm a dinosaur. I have had the same job for many years. I am grateful for that every day.
You’ve got them off the bus at the right spot. That is amazing. Given the choice of anyone in the world, who would you invite as a dinner guest?
I watched The Warriors game before, so I'm going with Steph Curry. It would be a lot of fun. If I could, I would dream on and play, too.
You can have more than one guest if you would like. That is cool. It is all mythical. It could be however many you like.
I'm curious about their lives. Their lives are so fantastic. They have access to so much stuff. I'm just curious about those sports celebrities.
Last question. What is your motto if you have one?
My kids will tell you that is easy. I repeat it all the time, "You do not get what you do not ask for." You might not get it anyway.
You won't get it if you do not ask for it.
It is also this conversation. I have applied for lots of jobs that I did not get over the years but I wanted them, so I tried to get them. It doesn't make it a mistake. A lot of people play super cautious. They just want to do what they think they can do but that deprives you of all kinds of opportunities.
An opportunity to grow too and see other things that you are capable of if you are pushing the envelope a little bit. You won't always be totally comfortable. That is a good one. That is a good way to end in a good admonition for folks as they move forward with their day and their choices. I appreciate you doing this and chatting and having this discussion, Molly.
I'm honored to be asked, and I am grateful to you for all the help you have given to the circuit over the years. I wish you luck with this endeavor. It is cool.
Thanks so much, Molly.