<< News Scan | Main | Mirandizing the Bomber >>

Former Clerks and the SCOTUS Short List

Jess Bravin has this informative but depressing story regarding how judges get on the Supreme Court shortlist. Having former clerks in key places in the Administration is a significant factor.

"It's not what you know; it's who you know," cynics have long maintained. The depressing reality is that there is a lot of truth in that statement.

I was genuinely astonished when the news broke that Ninth Circuit Judge Sidney Thomas was under consideration. I could not think of a single good reason why. "Geographical diversity" has been mentioned, but a very large number of judges fit that bill. Thomas's travesty of an opinion in the Summerlin case, discussed here, makes him an easy political target and makes untenable any claim that he is a great intellect. So how did he make it to the very select list of persons to be personally interviewed by the President? According to Bravin, "Yet although he is a lifelong Montanan, he has his own connection on Pennsylvania Avenue: Former clerk Ian Bassin now works in the White House counsel's office."

The influence of former clerks in this process is undesirable for multiple reasons. First, it gives an advantage to federal appellate judges as opposed to other candidates, especially state supreme court judges. Many states wisely have their appellate judges assisted by career staff research attorneys rather than wet-behind-the-ears recent graduates. Even for those that do emulate the federal system, the state clerkship is less prestigious and thus its alumni are less likely to land the Administration positions from which they can lobby for their former bosses. The Supreme Court presently has too many former federal judges (9) and too few former state judges (0), and it doesn't look like this is going to get better any time soon.

Second, even among federal circuit judges, the fact that one judge's clerk rather than another's landed the key administration spot is irrelevant to merit. It simply ought not be a factor. But apparently it is.

Leave a comment

Monthly Archives