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Tuesday, February 21, 2006
Mr. Ciongoli, Meet Mr. Tigar
I've very much appreciated the interesting comments on my previous post on Justice Alito's hiring of his former clerk, Adam Ciongoli. There's an extensive discussion in the comments and I've added some lengthy reactions. Thanks, too, to the folks at National Review Online and SCOTUSblog who linked to us and brought us many new eyeballs yesterday. Stick around, eyeballs! We welcome the additional company.
I asked one question at the bottom of my post that I'd like to ask here in the main body of the blog. Given that some folks still find the Ciongoli hiring troubling, I want to ask them whether they think Justice Brennan was right or wrong to withdraw his offer of a clerkship to Michael Tigar in 1966. Tigar had been a visible activist in his undergraduate days at Berkeley; had demonstrated against the House Un-American Activities Committee and ROTC; had "attended a left-wing youth festival in Helsinki," to quote one description; and was a public supporter of the Cuban revolution. His hiring became the cause of public controversy, up to and including the threat of a congressional hearing on the matter. Brennan had some second thoughts about his choice to withdraw the offer, but described it (in a New Yorker profile in 1990) as a decision to avoid a hiring that might "hurt the institution," given the public profile of the controversy.
So, was Brennan right to withdraw his offer to Tigar? Do the facts as presented meet, more or less, what I'll call the "Rhode criteria" -- namely, that it would have involved hiring, in circumstances in which the Court was surrounded by partisan controversy, someone "perceived to have an ideological agenda?" Should Brennan have withdrawn the offer the second he became aware of these activities, or only if a controversy arose over Tigar that created the "perception" of an "ideological agenda?"
Let me state that I'm not presenting all of the facts surrounding the Tigar incident, nor am I warranting the truth of the facts I've presented, although they are taken from standard accounts. And let me add that I'm not suggesting a one-to-one correspondence between the Ciongoli question and the Tigar question, or that the Rhode criteria offer the only basis for disagreeing with the Ciongoli hiring. With those caveats, I'll let the question stand: do you (especially those of you who criticized the Ciongoli hiring) think Brennan was right to boot Tigar out of his clerkship slot?
Posted by Paul Horwitz on February 21, 2006 at 01:30 PM in Current Affairs | Permalink
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Comments
Mike Tigar was my Crim Law teacher at Texas (90-91), and the first week of school one of the Texas newspapers (I believe it was the Dallas Morning News) ran an article about him. At the time, he was representing Nelson Mandela and I think Ivan the Terrible. The article retold this story, but I believe the reporter quoted Brennan as saying that he regretted his decision. Brennan later apologized to Tigar as well. Westlaw does not have the DMN past 1992, so I can't confirm this story, but that is my recollection.
Posted by: Christine Hurt | Feb 21, 2006 1:53:23 PM
I don't embrace the so-called "Rhode criteria," but, as I commented in your earlier thread, I think Alito's hiring of Ciongoli still demonstrates very poor judgment. I also think that Brennan's decision to rescind his offer to Tigar was a mistake. And there's no tension between those positions.
First of all, there's a difference between criticizing the taking away of a clerkship offer that has already been extended and accepted and criticizing the decision to extend that offer in the first place. It seems to me that there's a higher threshold to cross before breaking a promise to a future clerk in that way. (I know that clerkships are at-will employment, but still. We're in the realm of moral judgment, not narrow legalism.)
Even if we focus solely on the initial offer to Tigar, I think his activities (based on your description) seem pretty innocuous. What does it mean that he was a "public supporter of the Cuban revolution"? Did he break the law and take up arms at Fidel's side during the Missile Crisis? I don't think so. Or did he just wear a cool tie-dyed Che t-shirt? And being an opponent of the HUAC was hardly a crazy left-wing position in the late-50s/early 60s. If the activities you listed preclude someone from serving as a law clerk, then I assume working as a counselor at a socialist summer camp on Long Island (to steal a phrase from Woody Allen) would do so. I also assume that being a committed anti-abortion activist in one's undergraduate days would do so as well. That seems like a silly position to take.
In any event, as I commented on the earlier thread about Ciongoli's hiring, this is an experienced lawyer who was a high-level policymaker in Government and the inner sanctum of the biggest of big businesses. He *controlled* things and actually shaped important policies in the public and private sectors. He isn't just some low-level, over-enthusiastic young idealist who took himself too seriously as an undergrad. Big difference. This isn't just a problem of the ideological limits on clerk hiring, it's about power and potential conflicts. I mean, when this raises the eyebrows of Ronald Rotunda (hardly one to wear the tie-dyed Che t-shirt himself), you know there's a problem.
Posted by: snowball | Feb 21, 2006 3:54:40 PM
I had you in mind, among others, when I wrote that I'm not assuming everyone accepts the Rhode criteria, and that there may be other reasons to distinguish between the two cases, and that I'm not suggesting the two cases are identical. Where they do coincide, in my view, is that, at least if we take Rhode's criteria seriously, in both cases there was a "perception" problem, whether warranted or unwarranted. Indeed, on the facts, it seems to me the perception problem was greater in the Tigar case -- not necessarily justifiably, but there was more critical attention to Tigar's hiring and thus more "perception" at stake.
Posted by: Paul Horwitz | Feb 21, 2006 4:04:17 PM
Paul:
I'll grant you that the "perception" problem is similar in the two cases. I'll even grant you that Tigar appears to be a more dedicated ideological left-winger than Ciongoli is a dedicated ideological right-winger.
But one dimension of the perception problem that you're leaving out is the perception of clerk power. The concern about Tigar, I assume, wasn't really that Brennan was giving a plum spot to an undeserving young lawyer. Rather, it was that Tigar was an ideologue who could exert a negative influence on Brennan's decisionmaking--a pinko manipulating the levers of the law in the marble temple.
But taking an objective view, Ciongoli's hiring raises that concern to a far greater extent than Tigar's potential hiring did. A wet-behind-the-ears ideologue like Tigar, it seems to me, has less potential to influence a Justice than a seasoned, mature, and "plugged in" ideologue. Again, I don't rest my concerns about Ciongoli on the Rhode criteria, but I think that for that reason a reasonable person would say that Ciongoli's hiring is more objectionable on perception grounds.
Posted by: snowball | Feb 21, 2006 4:55:00 PM
Shorter Snowball: Conservatives are dangerous, liberals are not.
Posted by: thelawjoe | Feb 22, 2006 4:54:09 PM
No, lawjoe, more like: "Ciongoli is an influential policymaker, Tigar wasn't."
But nice attempted snark anyway.
Posted by: snowball | Feb 22, 2006 6:43:07 PM
Snowball,
So if Tigar had been more influential in his protests and demonstrations, it would have disqualified him from being a law clerk? I don't follow.
Posted by: thelawjoe | Feb 23, 2006 2:18:21 AM
Lawjoe:
Yes, it appears you don't follow. If you really believe that a high-level government lawyer, already graying around the temples, is comparable to a young fresh-from-school lawyer (even one who was an "influential" demonstrator--whatever that means), then we've come to the end of useful Socratic dialogue.
Tim Wu's new piece on Slate expresses many of my concerns, with different emphasis, and with much greater depth and clarity than I may have done.
Maybe he will persuade you that Alito's hiring decisions are indeed troubling.
Posted by: snowball | Feb 23, 2006 3:52:19 PM
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