Monday, March 31, 2003

Howard Bashman links to the first published opinion by Michael McConnell since being confirmed to the 10th Circuit.

I'm reminded of a story about opinion-writing that McConnell told in his class at Harvard, when he was a visiting professor there 4 years ago. What prompted the story was that we had read some judicial opinion in which the judge used a word like "clearly" or "obviously." McConnell recalled that when he got out of law school some 20 years earlier, he had gone to start his clerkship with J. Skelly Wright of the D.C. Circuit, a big-time liberal and Supreme Court feeder judge. When he got there, one of Wright's outgoing clerks was explaining the duties of the job to McConnell. McConnell asked how extensively Wright edited or rewrote drafts of opinions written by clerks. The response: "Ha! The only thing he will do is find the most dubious proposition in the entire opinion, and then put the word 'Clearly' in front of it."

Moral of the story: Be wary when a judge, or any other writer for that matter, uses "clearly" or "obviously." Sometimes those words are justified, and often they're just bluster.

In any event, I'm sure that McConnell will be quite a bit more involved in composing the opinions that appear under his name.


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