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Sunday, February 19, 2006

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. 

Posted by Paul Horwitz on February 19, 2006 at 05:00 PM in Current Affairs | Permalink


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I appreciate the comments so far, and the wider readership this post has had, through the good offices of SCOTUSblog and the National Review. A couple of responses, perhaps, are in order.

Jeremy, I think you read Ms. Kapczynsky's resume very charitably, and that's fine with me. I certainly am not saying that helping those in need is a "liberal" trait and not a "conservative" one. I would find such a statement belied by lots of available evidence. It seems to me that whether or not one engages in such work is determined by the extent of one's personal commitment to voluntarism more than anything else. I know lots of liberals and conservatives who devote their time to helping others, and lots of both varieties of individual who talk politics and live privilege. Of course, -how- one chooses to help may be a meaningful indication of one's politics, and that was my point: not that "helping those in need" is a "partisan" value, but that the choices one makes in carrying out this aid may offer clues as to one's broader politics. I should think for signaling purposes concerning a law clerk's politics that there -might- be some signaling value in the difference between choosing to work for the ACLU's Women's Rights Project and, say, Feminists for Life. Perhaps not. Folks are welcome to disagree about this.

In any event, forget Ms. Kapczynski; this certainly wasn't about her, and I find her work both perfectly laudable and perfectly acceptable in a law clerk-to-be. If folks want to take the time to dig through recent clerk bios to find other examples, that's OK with me. The basic point I was trying to make is that we shouldn't be naifs about clerkship selection. Mr. Ciongoli's record in the government presents a clear example of the work he's interested in doing (although it also depends on how much you treat his advocacy within government as client service, with the client being the AG, and how much you treat it as an indication of his own views), but a judge who is inclined to hire people with particular ideological baggage can select by using a variety of cues that may be present even in a greenhorn clerk (although, as Trevor points out, more and more Supreme Court clerks have at least a year or two of experience; I'm not sure how much of that experience has been outside things like the Bristow Fellowship or work in other government legal offices, though). If a clerk went from one liberal (or conservative) judge to another prior to interviewing for the Court clerkship; if she was active in her school's liberal (or conservative) groups; if she was associated with liberal (or conservative)groups; if she published a note indicating a liberal (or conservative) ideology; if her recommendations came primarily from liberal (or conservative) feeder professors; if she worked at a firm with a liberal (or conservative) orientation -- a judge can see all these things on a resume. Do we really think there aren't plenty of highly visible markers on clerks' resumes? If anything, my untested intuition is that we may find more of those markers on Supreme Court clerk resumes than at the lower court levels. One might argue that the extent of Ciongoli's work far outweighs such markers, and that's a fine argument to have. I was just arguing, as I wrote, that he presents a resume that is different in extent, but not necessarily in knid, from those of other clerks.

"Snowball" raises the question of the extent of Ciongoli's conflicts requiring him not to work on various cases. I hope others will weigh in on this; I looked over a Federal Judicial Center guide on the topic, and teach legal ethics, but I haven't invested much time in running down exactly the circumstances in which he might have to remain uninvolved in cases before the Court. It seems to me that he might have to remain uninvolved in cases concerning government policy in which he was involved at DOJ, and that this might involve a number of the war-on-terror type cases. I doubt he would have to remain uninvolved from all cases in which the DOJ is a party, since it is a former client from which he has been away for some time. He would have to remain uninvolved in cases in which he has a financial interest in the subject matter or in a party to the case or has more than a de minimis interest that could be substantially affected by the proceeding. It's the extent of the latter rule that would present issues for Ciongoli, and I'm not prepared to opine on the scope of the rule for him in commercial cases. But I doubt he would be required not to work on every regulatory case brought to the Court. It seems to me Ciongoli would still be able to work on a wide variety of cases, including most government cases, criminal cases, constitutional cases, etc. But I'm perfectly happy to leave room for argument on these matters. So I think "Snowball's" argument about the "extent of the baggage" has some weight, although I'm not sure precisely how much.

I'm not sure what to make of the claim that Ciongoli is different because he has signed on to the "Republican Party concept" of advancing the "creeping authoritarianism" of the unitary executive model. I find certain aspects of the argument for the unitary executive compelling, and I am neither a Republican nor a creeping authoritarian (I am "creepy," to be sure, or so my students tell me, but not "creeping" and not authoritarian, except in the classroom.) One may make claims about the authoritarianism of the extent to which the unitary executive model has been pushed by this Executive Branch, without utterly rejecting the concept. The unitary executive model, at least as currently pursued, may be indisputably anathema to many liberals, but that does not make it inherently anathema to them; it is not anathema to me, although I disagree with the claims made on its behalf by this Administration, and I am generally liberal in my orientation. I also would question exactly what you mean when you call it a Republican Party concept, for it is also an academic concept, although it has been picked up by a number of Republican office-holders; I note that it has also been disagreed with by other Republican office-holders. I don't know enough about Ciongoli's record to say whether he is "eager to advance" the concept, or whether he advanced it because he was eager to serve the AG, who in turn wanted him to advance the concept. And I don't know why this is a more inherently objectionable project to sign on to than, say, showing some eagerness to advance abortion rights, or some strong belief in aggressively extending the scope of some other provision of the Constitution, such as the Fourteenth Amendment.

You say that if Ciongoli won't recuse himself from certain cases, it must be true that his choice signals Alito's desire to have a fire-breathing advocate for the executive branch at the table, and that we therefore shouldn't kid ourselves that this choice has nothing to do with ideological agendas. Of course, everything in those sentences proceeds from the assumption, quickly forgotten in a stream of dependent clauses, that he won't decline to work on those cases; we don't know whether he will or won't, so we can't say anything about Alito's choice to hire him on that basis. Of course, there are lots of other credible reasons to hire Ciongoli that have nothing to do with politics. In any event, my basic point has been that lots of clerks can come to the Court with agendas, even if they lack much experience; if Alito wanted a clerk who was a fire-breathing advocate for executive power, not on the basis of his prior work in the Administration but on the basis of his jurisprudential and political beliefs, he would have no problem finding one. So I can't concede that Alito made a "statement" by hiring Ciongoli, or that his hiring has everything to do with ideological agendas. In any event, my point is that clerks with great talent -and- ideological agendas are easy to come by, if the Justices want to hire them. I agree that we shouldn't kid ourselves, but I disagree about exactly what we're supposed to be clear-eyed about. It seems to me we shouldn't kid ourselves that judges who are looking to hire clerks with ideological agendas can't find them, even on a relatively sparse record. I acknowledge the interesting disagreements, however, about whether the extent of Ciongoli's experience raises different concerns, while not yet finding myself convinced by them.

Having been through this whole exercise, I'm left with a question for my readers who are especially disturbed by the Ciongoli hiring: How many of you also think Justice Brennan was right to fire his prospective clerk Michael Tigar?

Posted by: Paul Horwitz | Feb 21, 2006 12:54:58 PM

I think your comparison of Ciongoli to Amy Kapczynsky is pretty inapt if you're trying to demonstrate a balance of partisanship among the Court and its clerks. When you're talking about an "ideological agenda" that a clerk would be itching to fight out in the judiciary, Ms. Kapczynsky's experience just doesn't lend itself to such characterization the way that Ciongoli's does. None of her activities are part of the partisan food fights at large today; they are all about bringing needed services to those that cannot otherwise obtain them. (The ACLU's Women's Rights Project, unlike the Reproductive Freedom Project, is not a fighter in the abortion wars.) If you want to contend that helping those in need is a "partisan" or "ideological" value, I think you have to take the position that it is anathema to conservatives, in which case you should probably come out and say it; otherwise, I think your argument needs some better support. The creeping authoritarianism of the "unitary executive" model, in contrast, is explicitly a Republican Party project, stretching from the days of Richard Nixon through modern-day conservative legal policymakers like John Yoo and, yes, Ciongoli, and it is indisputably anathema to liberals.

Coming back to the main thrust of your point, experience does matter, but it can also speak volumes about the priorities, capabilities, and tendencies of the people who have it and those who seek it out. Kapczynski's experience says she believes in helping those less fortunate than herself. While a laudable professional and personal quality, this does not speak to her ideological or judicial temprament (unless you contend that conservatives as a matter of principle reject the concepts of charity, pro bono work, and public service). Ciongoli's experience says that he is a lawyer who believes in, and is eager to advance, the "unitary executive" principle, and that the Court's newest Justice thinks that such a lawyer should hold a position of trust, confidence, honor, and influence within the highest judicial authority in our country. If Ciongoli isn't going to recuse himself from separation-of-powers and commander-in-chief-authority cases, I don't see how you can't consider his appointment as anything other than a statement by Justice Alito that a "partisan warrior" for a radically self-aggrandizing executive deserves a seat at the table within the judiciary. That in itself may not necessarily be an inherently bad thing (unless you cling to some belief in a non-ideological black-box model of the judiciary), but we shouldn't kid ourselves that what's going on here has nothing to do with ideological agendas, and we shouldn't indulge ourselves in straw men to minimize its significance.

Posted by: Jeremy | Feb 21, 2006 11:05:24 AM

This is a classic post under the heading "How to make meaningless comparisons between apples and oranges." The question isn't whether (1) law clerks could come to the Supreme Court with certain ideological predispositions, or (2) some "seasoning" in the real world of law could make a better clerk. Yes and Yes. Who could disagree?

The real question is whether it shows good judgment to hire a law clerk with *substantial* experience as a very high level legal policymaker in the Government *and* as a high level executive in one of the largest conglomerates in the country. I don't think it does show good judgment. A clerk's previous do-gooder work with Doctors Without Borders or some other clerk's prior clerkship with Judge Edmonson doesn't compare to that kind of baggage.

Think about the number of cases from which Ciongoli may have to recuse himself. Should he recuse in cases involving the Government's war-on-terror policies? I should hope so. From other cases involving DOJ policy? I would think so too (God knows how many cases that could be, but I'm sure it's plenty). This guy was Ashcroft's counsel, not just an eager young lawyer at the bottom of the totem pole. He was the one helping to craft DOJ policy. It's almost as though John Roberts hired Alberto Gonzales as a law clerk. (I can imagine Paul saying, "He has great real world experience in private practice and in government at the federal and state level. Why should we hold that against Alberto?")

Even if Ciongoli recused from all criminal cases, there are the civil cases in which he'll face potential conflicts. I'm sure he has a ton of stock options as GC of Time Warner Europe. Should he recuse from cases that could affect Time Warner's stock value? I would think so. What about other civil cases in which the Court's decision could substantially benefit or harm Time Warner's interest? I would think so too. But that category is huge. It could include a wide range of securities law cases, telecom cases, and even seemingly non-relevant administrative law or civil procedure cases.

What a mess. Maybe Alito was trying to make a kind gesture to a former clerk who had never gotten the chance to clerk "upstairs."

Even so, bad hire and bad judgment.

Posted by: snowball | Feb 20, 2006 6:08:35 PM

One quick question -- pace Sunstein's work on group polarization, isn't there a strong argument that someone who has spent a long period of time among like thinking individuals (say a lifelong ACLU or Institute of Justice attorney) would be more ideological in their thinking. Not necessarily someone of diverse experience -- working at Time Warner isn't the same thing as working at the DoJ -- but it does not seem like an outrageous belief that a long-time member of a cause would be more committed to it than a short-term member.

Posted by: BuddingProf | Feb 20, 2006 12:51:43 AM

Nice post, Paul. As for trends, it might be worth mentioning that the preference for clerks with more "seasoning" has also been in evidence over the last several years at the Supreme Court. During the 2002 Term, for example, something like 20 or 21 of the 35 clerks had at least one year between their first clerkship and their Supreme Court clerkship, and at least five clerks had three or more years between clerkships.

Posted by: Trevor Morrison | Feb 19, 2006 8:31:04 PM

Thanks, md. I have noticed this trend especially with respect to district court judges. It seems to me this makes sense, because those law clerks both labor under a significant caseload burden and benefit from some experience and sense of how the paper trail of litigation actually operates. It also seems to me the ideological "heat" of the work of the courts, like hot air (very much like hot air, in fact!), rises, so judges at the district court level may feel less need for happy warriors of the ideological variety. I would love to know if this intuition is empirically accurate, because it seems to me to raise all kinds of interesting points and questions -- about the effect that law clerks' prior experience has on judges' propensity to ideological judging (of whatever stripe); conversely, about the effect judges' propensity to ideological judging has on their willingness to hire experienced law clerks; about the effect on the judicial process if experienced lawyers sit at the lowest, district court, level, while less experienced lawyers sit at the appellate levels, and whether this has any effect on, e.g., the kinds of appeals that higher courts take and/or devote the most attnetion to; and about judges' vision of their jobs at different levels.

Posted by: Paul Horwitz | Feb 19, 2006 8:06:30 PM

Wonderful post. Though this is somewhat tangential to your principal points, it strikes me that many judges (particularly the newer federal breed) are interested in hiring clerks with more "seasoning" -- one or two years in a law firm or other "real-world" legal environment is increasingly being seen as a plus for clerking. Happily for me, the two judges for whom I've clerked were interested in experience and I've heard tell that this is a trend that's catching. In part, I believe that your point about the ideological 'cooling' (if I may paraphrase) that experience can bring to the table is an attraction for judges (or at least, in my view, the great majority who aren't interested in overtly ideological adjudication).

Posted by: md | Feb 19, 2006 7:49:36 PM

Very commendable, Paul. Yes, I think it works better as a normative approach than a descriptive one.

Posted by: Rex | Feb 19, 2006 7:38:06 PM

Let me put it differently: "One ought to assume, given her statement, that Prof. Rhode agrees that..."

One of the virtues of Prawfsblawg, I think, is that we try to operate in good faith and with an assumption that others are also acting in good faith (and I know of no specific reason why I should assume otherwise about Prof. Rhode). We may call on others to reason in good faith, we may criticize those who act in bad faith, and -- as in this post -- suggest that one has an obligation to take a consistent view when the shoe is on the other foot -- but we don't take pot shots based on -assumptions- of bad faith. Of course, we're only human, and subject to error, but we try. Hence our proud and illustrious motto.

Posted by: Paul Horwitz | Feb 19, 2006 7:28:31 PM

Great post. One quibble:

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).

What's the basis for this assumption? Most law professors would think such a hire would be terrific; it would demonstrate Justice Breyer's ability to think freshly and to bring on someone with considerable experience fighting injustice. Ciongoli's problem is that, well, he is one of them.

Posted by: Rex | Feb 19, 2006 5:54:33 PM

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