Leah Litman is an assistant professor of law at the University of California, Irvine School of Law. She researches and writes about constitutional law, federalism, and post-conviction review. After graduating from the University of Michigan Law School, she clerked for Judge Jeffrey Sutton on the Sixth Circuit and Justice Anthony Kennedy on the Supreme Court. She currently co-hosts First Mondays, a popular podcast about the Supreme Court. You can follow her on Twitter here.
Where did you grow up, and what were your main interests?
I grew up in Minnesota outside of the Twin Cities. And I don’t know where or when you want to me to start with my interests, but I was very interested in horses. I think I wanted to be a horse until fourth or fifth grade. And then I was very interested in dolphins, and then math. So basically I was really cool for all of my life.
Who were your most important teachers or role models?
I had a few teachers that I can really remember. One is my math teacher when I was a junior in high school, Larry Johnson. He was the best math teacher I ever had. And he would just, in a kind way, try to find ways to trip you up by challenging you. When he knew you were smart enough to master the material, then he would keep giving you extra problems and kind of poking at it — but never in a way that was designed to make you fail. It was a way to help you learn. I loved that class.
I also had amazing government and history teachers, Mr. Simpson and Mr. Welckle. And they ran these amazing historical simulations. We were business owners or stock investors and they simulated the Great Depression and the crash of the stock market. They made us all countries and we would battle each other for natural resources, and I revolted and declared war on them (the teachers, who had the role of “World Council”). It was just like a lot of really cool learning that I remember getting really into and excited about.
Was it a hard decision to choose chemistry as your college major?
I started out thinking I was going to be a math major, but I decided that wasn’t how I wanted to spend four years of college. So I took an organic chemistry class, and I really liked it. But then I didn’t like the lab work. And I wasn’t interested in either becoming a doctor, which is what a lot of the chemistry or biochemistry majors were interested in, or getting a PhD and doing long-term research in a lab. It just wasn’t something I wanted to do forever.
Are there any mental models or things that you learned in chemistry that are still helpful to you?
I think chemistry helped with a few things. One is the degree of knowledge you need of the underlying material in order to apply it. In chemistry, you do a lot of equations where you’re synthesizing compounds or chemicals. In order to get to the final product, which is super complicated, you have to work backwards and work with all of the building blocks. This is similar to how well you have to know the ins and outs of cases in order to discuss them intelligently and apply them. Beyond that, I think the deductive reasoning that goes into chemical synthesis is also very similar to legal reasoning. You try one pathway, you see where it goes, you see where it stumbles — you try another and see if it works better. That way of thinking, both the degree of specific knowledge you need and also the analytical testing, is similar to law in some respects.
How did you get involved with the Harvard International Review?
I showed up at college having done debate in high school. And there happened to be this person at the Kennedy School who had written some of the evidence we used in debate. So I went over there and thought, would this person want a research assistant? He did. He did some work in international relations, so I got interested-ish in that field and then went to this international review journal.
As editor-in-chief, were you responsible for directly editing other people’s work, or was it more of an oversight position?
The editor-in-chief role was editing both student work and author work. It was a similar structure to how law reviews work. There were editors who were in charge of the student-written portion, and then editors who were in charge of the articles. They would do initial edits, and I would look at them after that and then send them back to the author. Then at the final stage, where we were fitting everything into print and doing final page proofs, I would also do further editing on those pieces.
Afterwards, how interested were you in a career in journalism or editing?
You know, I wasn’t really. But I don’t know if that journal was a particularly great window into how journalism might be. It was just two people kind of in the basement, fiddling with different softwares and trying to format all of the images. So… no. [laughs]
I kind of want to go back to one of your tweets from a couple months ago. I don’t want to freak you out…
Oh dear, which one? [laughs]
This tweet just popped into my head when I was thinking of questions. You said that you were petrified for the first half of law school, and nervous to talk for the second. I know it’s hard to pinpoint, but why were you so nervous? Was it talking in front of other kids, imposter syndrome, intimidating professors…
I think it was a combination of a general fear of failure and imposter syndrome. Whether that was directed at peers, whether that was directed at professors — unclear. But obviously a lot of it was coming from me and my obsessing over what other people thought of me — and perhaps, most importantly, what I thought of myself. Because I was always my own harshest critic. I remember I got an email from one of my former professors almost three years ago. In the course of that exchange, it became clear that I remembered an occasion where I had offered what I think of as a wrong answer. I had not answered some question to my satisfaction. Of course, he doesn’t remember this at all. He doesn’t remember anything I said. But almost eight years after the class, I can still remember questions that I think I struggled with. So why that was or why that is, I don’t know, but it is true.
You have no idea how good that is to hear, because I often feel the same way. Do you have any advice for how to deal with that — to curb your own self-criticism?
I wish I had a great answer, because that’s still kind of behavior that I can feel myself falling into at some points. I would say a combination of things. One, it is really helpful to keep in mind that a lot of this is just coming from you and your own standards. No one is going to remember anything you say that is good or that is bad, right? No one’s going to remember that except for you some amount of time after that.
Another thing is to find people in your life who can tell you when you’re engaging in those kinds of tendencies. For example, I have a wonderful former professor, who, when we are going back-and-forth over email or on the phone, will notice when I start to say things that are reflective of my own self-skepticism. She will point that out and say, “Why are you doing that? That is not going to make it better.” She’s right. So having people identify when you are doing that is helpful.
I think I mentioned in the tweet you’re referring to that part of what helped is that every semester for the first three semesters I had some amazing professors who also happened to be women—Professor (now Judge) Larsen, Anna Rose Mathieson, and Eve Primus. And the last two also graduated from Michigan! So having those role models helped.
Something else that’s helpful is to find people you’re close enough with where they will tell you when you do well, and they will tell you when you don’t, in ways that aren’t negative or hypercritical, such as “Here’s something you could do better.” This group of people may be a combination of peers and mentors who support you. You should feel like you can make mistakes in front of them, and they will still think highly of you anyways. All of that is really helpful to becoming more confident and feeling less nervous about not being perfect in every second of your life.
How long it take for you to develop this kind of support group?
I didn’t necessarily have that in high school. In college, I can think of three friends who I became really close to. They were good at supporting me. But I could also go to them and say, “Oh, I don’t know if that was a good thing to do,” and they would be like, “Yeah, maybe you could have done this instead.”
Something else I do, which is silly and everyone will kind of have their own thing, is I love RuPaul’s Drag Race. And I have gifs — I have these images on my phone. They’re just images that in my mind project someone’s confidence and success. I look at them, and I then I feel the emotions that I felt when I watched them doing it for themselves. That can be helpful in some ways, when I start feeling negative.
I also think it’s helpful to find a hobby that gives you fulfillment, but is sufficiently different from work that you can get a high that isn’t just tied to the way you tend to evaluate yourself. For me, it’s swimming. I’m really into outdoors and competitive swimming. I can say, “I’m doing really well there,” and that can give me a pick-me-up if I’ve maybe faltered elsewhere.
How long have you been swimming?
I’ve swam since I was super little. I quit when I was in ninth grade because my younger sister was a lot faster than me, and I couldn’t handle it. But then I picked it back up in law school.
In college, you changed your mind about going into chemistry. When you were in law school, did you ever have similar moments of doubt about becoming a lawyer?
No, that never really crossed my mind in law school. I spent a year at a small firm after college before I went to law school, so I had a pretty good sense that I enjoyed the practice of law. There were a lot of points where I just wasn’t sure what kind of law I wanted to do or what kind of lawyer I wanted to be. But never during law school did I think, oh, maybe I don’t want to be a lawyer.
Why was your year at the law firm so appealing?
I really liked the iterative process that the firm engaged in, whether it was in litigation or a kind of public relations management issue that they got involved in. I liked all of the different questions that they found themselves asking. I liked the long-term planning. We were always thinking, “If we make this argument, how is it going to play out? How is that going to affect this other aspect of the representation?” All of that I just enjoyed.
You said that you weren’t sure what kind of lawyer you wanted to be. Which law school classes helped you make that decision?
I loved classes where there was a lot of law: areas in which there were a bunch of doctrines or procedure, a lot of rules. It’s complicated. The rules are in tension with one another. So you have to step back and figure out how to reconcile them, and figure out which ones can be reconciled and which ones can’t. Where is the tension, and how can I resolve that tension in various ways that are more or less satisfying? So, those classes for me were Criminal Procedure and Federal Courts. They probably stuck out to me the most when I was like, “Maybe I want to do this kind of law after law school.”
Were there any classes you expected to dislike or felt ambivalent about that you ended up really enjoying?
Let’s see. I was a bit ambivalent about Evidence and Employment Law, and it turned out that Evidence had enough rules that I liked it anyway. Employment Law I was unsure about because it seemed like it spanned so many different areas, like it’s some contracts, it’s some torts, it’s some statutory law, it’s some constitutional law. But I ended up really liking it. We also did a bit of arbitration stuff, but it was really just a survey of so many different possible questions that might arise in the context of employee-employer relationships.
On a scale of one to ten, how hard did you work in law school?
I would say I worked pretty hard. I guess I’ll put it at 7.5 — that seems like a reasonable number. But what does a 7.5 mean to me? I worked hard, but that was not to the detriment of being able to travel, see friends, take up swimming, do yoga. But during the days I was pretty diligent. I came off of working a 9-5 job, so it wasn’t that strange to me to be working during working hours, whether that was doing the reading or outlining. On that kind of schedule, I didn’t find it particularly difficult to do all the other things I wanted to do.
When did you become interested in habeas law?
Michigan had a class on habeas that I actually never took, and it’s one of my great regrets.
What! That’s crazy.
I know, it’s astounding. It is crazy. After law school I clerked on the Sixth Circuit, and the Sixth Circuit hears a lot of habeas petitions out of Michigan and Ohio, as well as federal sentencing cases. And that was where I really became interested in habeas, in part because that’s also an area of law where there are so many flipping rules. People don’t like to keep track of them, it’s kind of messy, and I gravitate towards that. Whether that’s the chemist in me, or just the first child who likes a lot of rules, I don’t know. But it was really during clerking that I became interested in and immersed in habeas. Also, partially because my co-clerks found it less interesting, and they were happy to allow me to take those cases. Which I did.
And then when I went to my second clerkship, that was also a point where the co-clerks weren’t as interested in habeas as me. A lot of the clerks in the building had clerked on the D.C. Circuit — they don’t get habeas petitions involving state criminal convictions, and so were less familiar with it. Again, over the course of that year, I became more interested in and immersed in it. By the time I emerged from my clerkships, I thought habeas was really cool.
You’re known on Twitter for writing really quickly. Something will happen, and then a couple hours later you’re like, “Here’s my New York Times op-ed.” So what does your writing process look like when you have a tight deadline?
I think part of the reason why I can turn around stuff quickly is because I get to write about what I want. I’m not given assignments that say, “Write about this issue. Do it in twelve hours.” I only write about things when I have an idea and I already know what I want to say about it. So once you have that, then the process of writing for me is just putting down all of my thoughts on paper. And the way I write is, I will try to get a draft out so I can put my thoughts down on paper and then refine it. That takes a while when writing something that is longer, because I don’t want to lose track of my thoughts. A thinking process for a 25,000 word article is, in my world, like 50,000 words. I need to figure out what I’m thinking, and I do that by writing.
When I’m writing something like a blog post or an op-ed, and it’s just one point on a case or an argument, then the iterative process of figuring that out and refining it doesn’t take as long. That’s why I think it maybe takes a little bit less time than it might if I was writing like an assignment. I think it’s also a matter of practice.
I don’t exactly know when I started writing quickly. I remember getting comments when I was working like, “This was fast.” And I just didn’t really have a sense for what the right pace was. I think that a big part of why I can do it now is that I just write whenever I want to, on what I want to, and so I’m only writing once I know I have something to say. That is where a lot of the time goes.
That’s interesting what you said about drafts. Sometimes my own self-criticism will manifest itself in my writing, and I’ll just have to keep editing and editing it. Drafts are great because you can get all the bad stuff out one page and refine it — but it’s hard!
Everyone is different. Sometimes I wish I could be the person who will just take a long time, and then the first draft is like a polished symphony because every paragraph is perfect. I can’t do that because it’s not the way my mind works. I’m like, “Well, what about this? If I say that, then this happens…” I need to map out all of my thoughts in order to refine them. And again, when I’m shooting for a 1500 word blog piece, I can bang out 3000 words of thoughts pretty quickly. Once I have my thoughts, I refine them and figure out what I actually think. It just kind of goes from there.
How do you organize your thoughts?
I’m an outliner, so I don’t do full paragraphs of outlines, but I will structure an idea with Roman numeral subheadings. Subheadings are below that — I want to address this point, I want to respond to that counter-argument, etc. That’s just how I think, in a kind of numbered, structured fashion. When I get that out, that will put me a long way to where I want to go.
Which writers have influenced your writing style or outline method?
I don’t know if I really got the outlining method from anyone or any place in particular. As far as writers who I particularly liked… Gosh. I remember someone telling me, “Oh, you want to become a good legal writer? You read the best legal writers.” I read Supreme Court opinions and briefs a fair amount. I don’t know if I can say that there’s X person I’m trying to emulate, or this is where I got my idea from. But I love reading Michelle Goldberg and Lindy West. They just have these voices, and a flow to their arguments and craft that I really like. They’re more op-ed columnists, but I really like reading them.
What are your tips for working through writer’s block (if, in fact, you ever have it)?
It depends on what you mean by writer’s block. If the writer’s block is that I have an idea and I can’t bring myself to actually start implementing it, then… gosh. I don’t really know that I have any great techniques. I have a heavily scheduled Google Calendar that is very color-coded, and when I’m busy I will carve it up into blocks of time. And I’ll say, today, you’re going to work on Part 2A-1. Then, I feel really crappy when I look at my Google Calendar, the time is up, and I can’t check something off the list. So that helps a little bit, having general goals.
Sometimes it’s allowing myself to take breaks or do things that will put me in a writing mood. I’m more of a morning person, so I’ll go for an early swim and go into the office. Then I’ll have three hours, and during that time I’ll be able to write more than if I’d lollygagged around in the morning and then went in in the afternoon.
Getting beyond writer’s block is sometimes knowing when to quit. If I sit in front of a computer and mess around and go down rabbit holes for a day, I lose energy, I get frustrated, and then it’s harder to pick up the next day. So when that happens, I think I’ve gotten better at learning when to cut bait and just say, “Today is not going to be a full-time writing work day. I’m going to leave, I’m going to go for a bike ride, I’m going to go read this book or article, or do something else where I’m getting in a different gear instead of dragging myself and not getting stuff done.
You’re in California, where I assume the weather is perfect all the time. How hard is it to resist the temptation to be outside instead of focusing on your work?
Not at all. Because it is nice all the time, I know that it will always be nice tomorrow and the day after that and the day after that. It’s not like I need to spend today going for that bike ride and enjoying the weather, since it’s also going to be mid-70s and sunny and no clouds tomorrow. I know, not to rub it in or anything. It does have that going for it. Other than that, not wanting to get sunburned because I’m super pale; I probably do not belong in the sun all day long in Southern California.
Okay, here’s a question I’ve also asked Ian Samuel. When you clerked for Justice Kennedy, how much did you struggle with being deferential to the justice and being assertive enough to make your points?
I didn’t really view my role as being assertive to make my points. I think that in general, it was easy insofar as the general rule is that they’re the principal, you’re the agent, and your job is to do the best job you can. One difficulty with that particular clerkship was that Justice Kennedy was so nice, he would not always make clear — “No, this is what I decided to do, and it’s not what you seem to think I should do.” It wasn’t always clear when the justice had made his decision.
Huh. That’s weird that he wouldn’t always communicate his decisions to you guys.
He wouldn’t always clearly communicate when he had made a final decision. He would communicate, “Oh, I’m thinking about this,” or “what do you think about that.” But then he wouldn’t say, I have definitely decided to do X. And so you didn’t know when your responsibility was to kind of engage in this iterative process to help him decide what he wanted to do, versus refining the decision that he had made.
When you say a “final decision,” does that mean he’s ready to start drafting an opinion? What do you mean by that?
It depends! Sometimes he had made up his mind after argument before votes, and sometimes he would defer a final decision, wanting to see how things wrote. Sometimes he would revisit what he had maybe said would be his final decision. So the final decision was really just the moment at which he had decided he was going to vote one way. But that final decision might happen after he suggested he had already made a decision.
I’ve heard different things about writing during clerkships. Neal Katyal says that he didn’t write very much for Justice Breyer, and that his writing didn’t greatly improve. Ian Samuel said that he wrote all the time. What was your experience?
I think that maybe how much writing you do depends on who you’re clerking for. On the Court of Appeals, I think I did a fair amount of writing. I would do memos on all of the cases that the judges participated in, and just the volume of cases the Court of Appeals hears is perhaps a bit more than what the Supreme Court hears.
That particular year, I feel like my writing got a lot better because of the way that the judge I clerked for did edits. He would make his edits in a different font in the same document, and then I could see the changes that were made. The judge I clerked for was a really great writer. I could see where he had improved my writing, how he had improved my writing, and that was really helpful to learning as a writer.
When I got to the Supreme Court, there was a similar writing aspect. You write memos about the cases the Court hears, and then the cert pool memos about the cases the justices might hear. I still feel I was doing a fair amount of writing in that clerkship. Some of the writing was in the cert pool — that can be a different style of writing. It’s a bit more formulaic than other kinds of writing you might do in the clerkship. And so that feels perhaps like less of an opportunity to develop a voice as a writer, or do a bit more stylistic stuff than you might do in the other aspects of writing. But I still feel like I did a good amount of writing in that second clerkship.
Supreme Court law clerks are petrified that their memos may be DIG-ed [dismissed as improvidently granted]. I know the Court of Appeals doesn’t have cert memos, but were there any analogous fears when you clerked for Judge Sutton?
I’m trying to think of an embarrassing thing you might do as a court of appeals clerk that’s sufficiently analogous to recommending a case that’s dismissed as improvidently granted. And I don’t know that there is a certain thing you can do that’s super embarrassing beyond not preparing a judge for a case or getting something wrong and missing a case that might be relevant.
Right now, people are talking about Brett Kavanaugh’s law review articles, his opinions for the D.C. Circuit, the gender of his law clerks and even his baseball tickets. In your view, is there anything in his life or career that should be getting more attention?
I think that maybe some things deserve a bit less of a focus. Some things deserve a bit more. I don’t know if there are things that are not getting any attention that need to be discussed. For example, I don’t think the testimonials of former clerks — “This person is nice, and I like him” — are that relevant. There’s a super-strong norm against saying anything bad about your judge. If anyone is willing to break that norm, that is very relevant because that suggests the degree to which that judge was not a good boss or behaved poorly in some ways in chambers. But the norm of not speaking poorly about your judge is so strong that having people say nice things about a judge after having clerked for him or her is just not that relevant. So that’s one thing that maybe should be getting less attention.
I don’t think there’s much to be gained by having a bunch of people who travel in similar circles say this person is smart, well-qualified, and well-credentialed. I am kind of more of the view that, let’s talk about this person’s ideas about their law and their substantive and interpretive visions for the law. How might those play out, and are they visions that we want to defend or criticize? I think that that’s probably a more useful thing to do, particularly when you’re talking about someone who’s been a judge for over a decade.
If you were elected president, who would you appoint to the Court?
I would appoint Merrick Garland to fill the seat that he was appointed to fill and never got a hearing for. That would be where I would start.
Which qualities would you value most in a Supreme Court nominee?
I think belief in the proper role of courts — that courts shouldn’t be in everyone else’s business. So some preferably strong view of judicial restraint and judicial limits, particularly when reviewing Congressional legislation. I think someone who has had the experiences that are a little bit different than the typical mold of a Supreme Court justice. I think it would be great to have someone who has done public defense work. I think it would be great to have someone who’s represented tort plaintiffs. I think it would be great to have someone who’s done more trial level work, and who hasn’t grown up being a lawyer in this very narrow group of lawyers on the Washington, D.C. scene. Those are attributes I think would add value to the current bench, and that’s what I would look for.
Chief Justice Roberts has talked about addressing sexual harassment in the judiciary, but it’s hard to feel optimistic about anything other than a report coming out. How optimistic are you about the situation?
It’s hard to feel optimistic when I saw what emerged from the judiciary’s working group in the last several months. There has been no appetite to ask what happened. I think knowing what happened is an important part of figuring out how you can prevent it or fix it. I think another big part is asking, why did the system fail? What enabled Judge Kozinski — and there’s no reason to think he is the only judge who abused and harassed his clerks and others — what enabled that to continue? Those questions, to my mind, have not been asked, much less answered, and before there are indications about doing that, I don’t have a ton of faith that there’s going to be some big solution that emerges from all of this.
Some of my concern also stems from the fact that a lot of the dysfunction that contributed to the problem is the underlying social and cultural norms that make it easier to value a harasser who has accumulated a lot of power over time. It’s easier to value that person at the expense of people he is minimizing, people he is abusing, and people he is kind of walling off from certain circles. Until we adjust our ability to assess who we can empathize with and who we value, then it’s always going to be difficult for systems, peers, and supervisors to make a judgment about valuing a young woman or man who’s trying to break into certain circles but is being excluded because someone is mistreating them. Seeing the kind of general inability of people to ask — “What could I have done to make it better?” — and then doing that thing is not super encouraging.
Other interviews conducted by Anna Salvatore: Lawfare editor-in-chief Benjamin Wittes, former Solicitor General Neal Katyal, New York Times Supreme Court correspondent Adam Liptak, SCOTUS court artist Art Lien, First Mondays co-host Ian Samuel, Fix the Court Director Gabe Roth, and litigant extraordinaire Fane Lozman.