In the case to which Mr. Lazarus refers (see “Lazarus Rises, II“), Thompson v. Calderon, 120 F.3d 1045 (9th Cir. 1997) (en banc), the issue was whether what happened within the court justified recalling the mandate. The majority opinion relied on internal court processes and the dissent, 120 F.3d at 1066, quite naturally, also discussed what happened. Even then, the opinion did not use actual judges’ names to maintain confidentiality. There are several other important distinctions to keep in mind. (The Supreme Court, by the way, reversed, based largely on the facts disclosed in the dissent. 118 S.Ct. 1489.)
First, law clerks are not judges. It is one thing for JusticeMarshall to give his papers to the a library, or for a judge to writean autobiography. It is quite another matter for a law clerk to takeit upon himself to reveal conversations of a judge or discloseinternal memoranda of a judge. The purpose of the confidentialityrule is to protect a judge’s reasonable expectation of privacy, anda judge can waive that privilege. It is not for the law clerk tomake that decision.
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