Law Clerks -- Now With Extra Seasoning!

Here's Adam Liptak at the Times with an article about Justice Alito's hiring of Adam Ciongoli, a former Alito clerk, as one of his new clerks on the High Court.  Ciongoli dropped his significant position at Time Warner to take the clerkship.  Before that, he was a counselor to AG Ashcroft and, according to Tony Mauro, "one of the architects of the Bush administration's post-9/11 anti-terror legal strategy."  (Liptak, incidentally, parrots this phrase almost exactly, calling Ciongoli "an architect of the Bush administration's legal strategy after the Sept. 11, 2001, attacks."  There probably aren't too many ways to say this, but it seems as if the phrase stuck in Liptak's head a little too much.)

Liptak rounds up various bloviators to comment on the hiring.  I found especially interesting the comment of Stanford legal ethics expert Deborah Rhode, who told Liptak, "It really indicates a lapse in judgment. . . . I just don't think it helps your reputation for nonpartisanship, particularly after such partisan confirmation hearings, to start out by hiring someone who is perceived to have an ideological agenda."   

Sorry, I can't agree.  [more after the jump] 

It's not that there's nothing to Rhode's complaint.  If we value the appearance of disinterestedness on the bench and among the judges' helpers, then naturally we might look askance at someone with a clear commitment to some side or another on various debates.  One assumes that Prof. Rhode agrees that if Justice Breyer tomorrow hired someone with years of high-level experience at NOW's legal arm (of which she is vice-chair of the board of directors) or the NAACP Inc. Fund, that might attract attention too (and, I dare say, as much or more venom among some sectors of the commentariat).

But, first of all, it's not clear why the "partisan" nature of the confirmation hearings is relevant here.  Most Supreme Court nominations these days are partisan.  Even the Roberts nomination, which was largely a coronation, and the Miers nomination, which was largely an insurrection, on both sides of the aisles, both sounded in partisanship -- largely as a result of efforts by groups such as NOW, and their counterparts on the right, who correctly see little strategic value in holding confirmation hearings in a quiet and nonpartisan environment.  But why pin that on the Justice?  To be sure, Presidents may be nominating more partisan Justices; but the environment surrounding their nominations and confirmations is little or none of their doing, and I'm not sure why they should feel constrained by the political atmospherics that are others' bread and butter and none of the Justices' proper business.  Second, while I have no particular reason to doubt that Ciongoli has an ideological agenda, I also see no reason to perceive him as having an ideological agenda, save for Rhode's self-evident invitation for us to perceive him in this way.

Then, too, there is an air of unreality about the whole criticism, because it suggests Ciongoli's long partisan experience (if we so describe his work for Ashcroft) makes him worse suited for the job of law clerk than an unstained, inexperienced juvie, a couple of years out of law school and with only a couple of clerkships under her belt.  Liptak's article does not suggest the value of having more experienced law clerks, but Mauro's does, a little.  We might add to the few observations there about the value of having a trusted clerk that there is something worthwhile in having an experienced one.  Most law clerks come to the Court with only a couple of law firm summers under their belt and one or at most two years in appellate clerkships, which are a good but decidedly incomplete and distorted place to learn about the law, either in its details or as a whole.  I think there is much to be said for having law clerks who have experienced a couple of years of practice before coming to the Court. 

That question need not be resolved here, for what I want to focus on is the air of unreality about suggesting that a person with a long partisan record is more likely to have an "ideological agenda" than someone with a short or non-existent record.  My sense is that whether or not one has an agenda that is likely to distort one's work as a law clerk depends on character traits having nothing to do with length of tenure, and everything to do with whether one sees the courts, along with everything else, as a proper site for fighting out a perceived political and jurisprudential war.  Some people just are that way, and some just aren't.  Indeed, experience might be more valuable here.  Having been seasoned by experience, and met a variety of lawyers, Ciongoli might well be more able to appreciate the limited role of the law clerk, and more humble about the nature of the judicial enterprise, than a law clerk whose only experience was one year in the chambers of an appellate court judge -- especially if that judge is himself or herself a partisan warrior.

Furthermore, if having experience in a seemingly partisan position is evidence of and leads to "perceptions" of an ideological agenda, it is just a fallacy to suggest Ciongoli is really that differently situated from many of the law clerks who enter their work on the Court only a couple of years after law school.  Take OT 2005 O'Connor clerk Amy Kapczynski, who, although only a 2003 grad, had found time to work with "Medecins Sans Frontieres, ACLU Women's Right Project, East Bay Community Law Project, Lawyers Collective, HIV/AIDS Unit, and the Bard College Human Rights Project."  I don't mean to single her out.  I just want to point out that judges or members of the public who are inclined to look for evidence of an ideological agenda can find one even in students who are not that far out of law school, but who have already formed their links with the political and jurisprudential left or right. 

And of course there are still other markers: Supreme Court clerks often come from feeder judges who may have their own ideological reputations, and who may make efforts to hire ideologically sympathetic clerks.  Did many conservative law clerks come out of the Bazelon chambers?  Or many liberals from (to take the 11th Circuit as an example; I don't know whether he's fed anyone to the Court) the Edmondson chambers?  These markers are very imperfect, but together they make the point that Ciongoli's experience may be different in extent from that of most law clerks, but it is not necessarily different in kind. 

Justices could of course look for clerks with utterly clean and uncontroversial records (like mine!  I'm still available!  Yoo-hoo!), but they need not, and I'm not sure they ought to.  I doubt Rhode thinks they ought to either.  So we are left where we always are, with the observation that what really counts is whether the law clerks have the integrity to do their job in a reasonably disinterested fashion, and whether the Justices have the integrity to make sure they do.  (I interpose the word "reasonably" because there is room for disagreement about exactly what is required here.  At the least, I assume it means that clerks should only aim to advance a chambers agenda, rather than a private agenda or a personal political agenda.)  The most I think we can say about the Ciongoli hiring, in this light, is what Professor Rotunda says in the Liptak article: that hiring someone with such a long record may be "just asking for problems that are unnecessary."  But against that concern must be balanced the virtues of having law clerks with genuine legal experience, and the practical wisdom that comes with it, and on balance I think experience wins out.  Certainly, pace Rhode, experience ought to be no more reason for fearing an "ideological agenda," given the often evidently partisan records of even the most inexperienced of clerks, and the very fact that their partisanship may not yet have been tempered by experience.