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Law Professor Had a Unique Opportunity To Clerk for Not One, but Two Judges Nominated for the Supreme Court 11/10/16  11/10/16 9:34:13 AM Printer Friendly VersionPrinter Friendly Version

The University of Nebraska’s Eric Berger relishes his role as law professor, writer and consultant.
Law Professor Had a Unique Opportunity
To Clerk for Not One, but Two Judges
Nominated for the Supreme Court

By Julien R. Fielding
The Daily Record

Students love Eric Berger, associate dean for faculty and professor at Nebraska College of Law. Upper-class law students voted him Professor of the Year in 2008, 2010, 2012, 2015, and 2016. And in 2010, he also received the College Distinguished Teaching Award.
“It’s very gratifying,” he said. “It’s nice to be appreciated by students.” Humble about his accolades, Berger added that he teaches Constitutional Law, which is a required class, so that gives him a “large constituency.”
Berger joined the UNL faculty in 2007, moving here from Washington, D.C., where he was an associate at Jenner & Block, a firm with offices also in Chicago, London, Los Angeles, and New York. During his three years at the firm, he tackled a variety of challenging legal issues, involving lethal injection, same-sex marriage, federal obscenity law as applied to the internet, and the legality of military commissions created to try detainees at Guantanamo Bay.
Prior to that, he had the privilege of clerking for the Honorable Merrick B. Garland on the U.S. Court of Appeals for the District of Columbia Circuit. (Garland, of course, is President Barack Obama’s choice to replace the late U.S. Supreme Court Justice Antonin Scalia.)
The summer after his first year in law school, he also served as an intern for the Honorable Sonia Sotomayor on the U.S. Court of Appeals for the Second Circuit in New York. She was confirmed to the Supreme Court by the U.S. Senate in August 2009. How did he manage to work for two very prominent judges?
“It’s a crazy process,” he said. “You send applications to all the judges you want to work with – you apply to a lot of judges – and they narrow their list based on professors’ recommendations and your grades. They call only a handful for interviews; [Garland] hires just four a year. I was very lucky. My professors had talked about him as a highly respected judge who was great to clerk for. And because his court was the D.C. Circuit, he gets a lot of administrative law cases. That was interesting to me. And, of course, Judge Garland is really an exceptional judge and a devoted mentor.  I was very, very fortunate.  It couldn’t have worked out better.”
Berger didn’t get as long to work for Judge Sotomayor. “I was in law school, and it was during the summer for three months. It was less grueling; a fun experience. I think it actually might have helped me a little in my interview with Judge Garland, because I had a little bit of experience working with a federal judge, thinking about how to approach cases.”
Berger grew up with some knowledge of the legal profession: His father was a corporate lawyer. But as he explained, “What my father did, and what I do, have nothing in common, beyond the fact that we’re both lawyers.” Berger pursued a bachelor’s degree in history at Brown University.
“Some of my interest in the law came from my history classes, especially intellectual history,” he said. His college history thesis was on the Danish Resistance against the occupying Nazi forces during World War II.  
When it came to choosing a law school, he decided upon Columbia, primarily because even though he was born in New York, he had never lived there as an adult. “It was an exciting university and an exciting city,” he said.  
Berger enjoys constitutional law, because it deals with “big ticket issues,” including same-sex marriage, abortion, affirmative action, voting issues, and health care reform.
“One fun thing about constitutional law is that there are always new cases,” he said. “I recently found a casebook from nine years ago, when I first started teaching, and there are a lot of new cases that have really changed the landscape. Of course, some doctrinal areas haven’t changed much, but there have been more important changes in constitutional law over the last decade than there has in many other areas of the law. To that extent, constitutional law is fascinating, because there are usually new issues and new cases.”
Constitutional scholars pay close attention to the U.S. Supreme Court, because the justices hear some of law and society’s most important issues, and they usually take a good number of constitutional cases each year, he said.
The U.S. Supreme Court, he added, seems to be avoiding some controversial constitutional cases since Justice Scalia died in February.  Berger said it is impossible to know for certain what the justices are thinking, but they may want to hold off on some important issues until the court is back at full strength.  The Senate, however, has refused to hold hearings or a vote on Judge Garland’s nomination, so the court currently has only eight justices.
“An even number of judges isn’t ideal,” he said. “A small number of cases have had a 4-4 split, and that affirms the judgment of the lower court, but it isn’t binding. The ruling only affects that ruling. As a result, important legal issues remain unresolved.”
Consequently, certain issues may eventually return to the high court. For example, legal questions surrounding the executive branch’s immigration policy and public-sector unions’ ability to require non-members to pay dues remain unresolved.   
“The lack of a ninth justice has resulted in some decisions that lack precedential value,” he said. “Of course, at earlier points in our history, the Supreme Court had fewer justices and sometimes had an even number.  But the Court in the early nineteenth century didn’t play as big as a role in our government and society as it does today.”
Having clerked for Judge Garland, Berger knows the judge would make a fine addition to the Supreme Court. “He’s great,” he said. “He’s a careful, extraordinary judge. He’s brilliant, meticulous, fair and impartial. He studies every case so carefully and never decides based on ideology or the identity of the parties. He’s the kind of person we all should want on the Supreme Court. I think it’s reprehensible for the Senate not even to schedule hearings for him.”
Berger explained further that Republicans – who are currently refusing action – have said in the past that if President Obama were to nominate Judge Garland, a “63-year-old moderate,” that they would confirm him. President Obama, in fact, likely selected Judge Garland because Republicans had previously signaled that he would be acceptable.  
“I question the Republican Senators’ strategy on this,” he said. “It just plays into the message that Republicans are obstructionists. Whether that’s true or not, it feeds right into that narrative. Congress is not a poster child of productivity.”
Professor Berger, on the other hand, is. He is a prolific writer, and participates regularly in panel discussions, and delivers presentations, on a variety of subjects, including lethal injection.
“Just before I became a professor, I had spent over a year litigating lethal injection cases, so it was a subject I knew well,” he said. “It was also a subject that there wasn’t a lot of scholarship on yet. I thought I could make a contribution.”
More than just writing about the subject, he has also consulted – pro bono – with lawyers nationwide about lethal injection litigation and legislation for a number of years. In January 2009, he testified before the Judiciary Committee of the Nebraska legislature about a bill to institute lethal injection in the state.
“I love my job, and I’m fortunate to have it,” he said. “I get to wear many hats.”
At the University of Nebraska College of Law, he teaches Constitutional Law I and II, Constitutional History, Federal Courts, and Statutory Interpretation.
Berger and his wife, who teaches Classics at UNL, have a daughter and a son.
For more information regarding the University of Nebraska College of Law, please go to: law.unl.edu.

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