Joel Klein’s World Class Kinsleyesque Gaffe

 

 

          Joel Klein published a reflection on his experience clerking for Judge Bazelon (liberal) and Justice Powell (conservative). It was published as: ‘Ancient Wisdom: How a Supreme Court Justice Changed My Life,’ The Free Press (Sept. 28, 2025). Klein’s reflection is all the talk—even on academic listservs.

          Klein reports:

Time and again, [Justice Powell] would say things I found to be unexpectedly insightful and moving. I can vividly remember him once returning to the office after an oral argument and saying to me, “I just had an amazing experience with Thurgood,” referring to Thurgood Marshall, the only black justice on the Supreme Court at the time. “In the middle of the tax case we were hearing,” Powell continued, “Thurgood leaned over and said, ‘Lewis, I don’t know the first thing about a case like this, and I have no idea what the lawyers are talking about. I’m going to give you my vote.’ After I thanked him,” Powell went on, “Thurgood then said, ‘And, you know, Lewis, you don’t know the first thing about civil rights, so, when those cases come before us, you should give me your vote.’ ” Powell looked at me and added, “You know, Joel, I think he might be right.”

How, precisely, is this “insightful”? Or “moving”? Here, Klein is recounting how one judge solicited another judge’s vote in naked vote trading … across unrelated cases … with different parties. I am not going to say that such vote trading violates positive law or that such conduct has led to specific sanctions in the past in those rare circumstances where it has been ferreted out. But it seems to me, and it is just my opinion, that judicial vote trading, particularly, across unrelated cases, with unrelated parties, violates due process norms and the aspirational goal of transparent justice. What is the point of adversarial litigation if judges have secret deals which litigants are unable to respond to because they are secret? If judges are going to make such “deals,” then would it not be better to make them public, so that parties could avoid the time, expense, and heartache of bringing futile appeals? If this story really happened, and I have some doubts that it did, then I cannot fault Klein for telling the truth as he knows it. But then why does Klein tell his audience that there is something here “insightful” or “moving”? What? All this story shows is that Klein did not understand what was going on at the time, and he remains as blissfully blind now as he was then.

          And if Klein was not blind: Could not Klein have done something—proactive—about this event, at the time, rather, than just publishing it as part of a reflection long after the fact? Could Klein not have mentioned something—anything—to Powell (even on his last day clerking for Powell) or to Marshall’s clerks? Perhaps, something along the lines, that this is all a very bad look for the Supreme Court of the United States, as it would be for any court of record?

          Then there is this Klein story:

I went from being a favored clerk to a clerk in exile. Bazelon literally moved my office from the big one adjacent to his to a small one down the hall. For the next couple of months, he communicated with me through his executive assistant only. Then, in mid-March, he summoned me to his office and told me I should listen as he returned a call to Potter Stewart, a justice on the U.S. Supreme Court. To my surprise, without telling Stewart, he put him on the speakerphone and said, “Hi, Potter. I got a message saying you wanted to talk about one of my clerks, Joel Klein. You’re considering him for yourself?” Stewart started to say some nice things he’d heard about me, but Bazelon interrupted. “He’s no good,” he said. “One of the worst clerks I’ve ever had. Not very smart and doesn’t work hard.” Bazelon hung up the phone and told me that several other justices had called asking about me, and he’d given them the same report.

I was devastated. I was also astonished by what I saw as inexplicably cruel behavior by this great liberal judge.

          Let’s say Klein was right, and that Bazelon was wrong. What did Klein do about it—at the time? Did he resign? Wait a few days or weeks and, then, have a heart-to-heart discussion over a lunch? Send a written memorandum on his last day clerking, and explain that it is not right to surreptitiously have people listen in on telephone conversations between judges involved in official administrative duties? I know this might sound strange, but just perhaps, Klein could have helped Bazelon? Klein could have suggested that Bazelon take a vacation, take senior status, or therapy? Might Klein have warned (even anonymously) future clerks of the risks involved in working for Bazelon? Could Klein have appealed to Bazelon’s family? Friends? Colleagues? Spoken to the chief judge of the federal circuit court? Did Klein ever tell Justice Potter Stewart—who was on the Supreme Court when Klein clerked for Powell? Instead, Klein saved this story for when Bazelon is dead and cannot answer. In my mind, that’s a damn sight worse than what Bazelon is alleged to have done.

 

It is hardly news that each of us would have some difficulty evaluating our own accomplishments and deeds. The real issue here is not Klein, but rather, it is his Free Press editors and the many, many readers who did not see these stories for what they reveal: a world class Kinsleyesque gaffe (or series of such gaffes). Having read Klein’s article-as-memoir, and more than a few responses, I have come to two conclusions: Our political culture has more than some difficulty distinguishing cowardice from virtue, and the Supreme Court should not have any law clerks.

 

Seth Barrett Tillman, ‘Joel Klein’s World Class Kinsleyesque Gaffe,’ New Reform Club (Sept. 30, 2025, 8:35 AM), <https://reformclub.blogspot.com/2025/09/joel-kleins-world-class-kinsleyesque.html>;