November 2012 Bar Bulletin
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November 2012 Bar Bulletin

How It Used To Be: The Supreme Court's Law Clerks


In December, we concluded John Rupp's history of the Seattle-King County Bar Association. In February, we launched a new series, also written by Mr. Rupp, in which he recalled his stint as one of the first law clerks to the Washington Supreme Court. Again, we present it unedited, as he wrote it. The editor wishes to thank his colleague Ken Rekow for discovering this old jewel and dusting it off for publication in these pages. Mr. Rupp (or perhaps his secretary) typed out this opus in March 1977; so, the story begins in 1937. Enjoy.

(Fourth in a series)

[Editor's Note: When we left you in August, John Rupp was introducing us to the justices.]

Governor Hartley was famous for making appointments swiftly. This took off a lot of the pressure that builds up on a Governor when he has an appointment to make. Say you're the Governor and a vacancy occurs in a State office. Pretty soon you start getting letters and telephone calls from your friends or from influential people urging you to appoint their favorite candidate.

The pressure builds. And, if there are twelve candidates, you know that the proportion between the people you will disappoint and those whom you will satisfy is bound to be eleven to one. And even the successful candidate and his sponsors won't necessarily be particularly friendly because all you did was appoint the person who, in their eyes, was obviously the best candidate anyway. So Governor Hartley didn't wait. Then when the letters and 'phone calls came he could say, "Why Charley, how nice to hear from you. I appreciate your recommendation and I have always admired Cliff, but I filled that vacancy yesterday." A fait accompli. What can you say?

Judge Millard and I always got on well together. To me, however, he was a tragic figure; tragic in the classic sense that he did not become what he could have become. His appointment to the Supreme Court was a strange fluke - a person who has been a male stenographer, a law clerk and a law librarian does not usually become a Supreme Court judge. But he had a good mind and if he had buckled down and studied and applied himself, he could have become a fine judge. But he didn't do it and he frittered away his considerable talents on petty feuds and fiscal and social foolishness so that he never realized his potential.

Judge Millard used a gamesmanship ploy that used to amuse me. When an opinion had been written it was circulated to all the judges - first to those in the department which had heard the case, and those judges either signed the opinion or concurred in the result or dissented or added a concurring opinion. Then the opinion went to the other four judges, for they had a say as to whether the opinion should be filed or whether the case should be reheard en banc. A circulating opinion had attached to it a paper called a "passing sheet." Each judge signed or initialed this paper to show that he had seen the opinion. A judge could also write comments on the passing sheet, e.g., "I think that this should go en banc. Main, J."

But Judge Millard, being a former stenographer, was much given to writing passing-sheet comments in shorthand. Naturally, the other judges couldn't read these comments, so they would seek help from the secretaries. "Miss Spivis, you know shorthand. What does this say?" But no one but Judge Millard could read Judge Millard's shorthand, and he would never elucidate. I am sure that he hugely enjoyed the situation.

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