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Sunday, September 23, 2007

Do Law Clerks Have a Duty to Gossip?

Yes, says David Margolick -- or at least that's his implication.  In his review of Jeffrey Toobin's The Nine, Margolick takes the media to task for complacency in their coverage of the court.  Although he focuses on Supreme Court reporting (Greenhouse, Greenburg, and Totenberg -- please stand up), he also takes law profs to task:

And scholars aren’t much help. Many top law professors once clerked on the court; cherishing their relations with the justices, along with the power to pull strings from Cambridge or New Haven or Palo Alto to land similar positions for their students, few dig deeply into court affairs. It all works very neatly; the only ones hurt are the American people, who know little about nine individuals with enormous power over their lives.

Margolick praises the "enterprising and intelligent" Toobin for shining "a much-needed spotlight on the place."  But he believes Toobin wasn't aggressive enough in his questioning of former clerks.  The clerks, according to Margolick, are the keys to cracking the joint:

Considering the secrecy shrouding the place, just about Toobin’s only remaining reportorial option was to try what Bob Woodward and Scott Armstrong did in “The Brethren” a generation ago: canvass former law clerks, three or four of whom pass through each chamber every year. They are, as Toobin writes, not nearly as important as they think they are; after all, they’re not privy to their bosses’ deliberations. And they can be very full of themselves, priggish and protective, even proprietary, about the court. Just ask Edward Lazarus, who in 1998 published an account of his year clerking for Justice Blackmun; for his breach of omertà, his fellow clerks shunned him at Blackmun’s funeral.

But there are many, many clerks; they heard — and still hear — a lot; and for all the sycophants and careerists, kingmakers and aspiring federal judges among them, some are surprisingly independent and outspoken, believing that excessive deference to even the most necessarily private branch of government ill serves our democracy. Toobin says he spoke to 75 of them, but anyone writing a book like this simply has to telephone them all, even if 9 of every 10 hang up in a huff. I wish Toobin had done this, because it would have made his book even better.

I would guess that the overwhelming majority of law professors believe clerks have an obligation to keep their mouths shut about court deliberations.  But Margolick seems to be making it one's patriotic duty to spill the beans, in order that the public be better informed.  I wonder what most law profs would think of this notion.

Regardless, as I mentioned in an earlier post, it seems that the growth and diversification of the media will lead to more scrutiny, analysis, and gossip in previously placid realms.  Margolick, for one, believes that such scrutiny of the Court is long overdue.

Posted by Matt Bodie on September 23, 2007 at 11:45 AM | Permalink


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