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Sunday, December 24, 2023

What is Missing From This Story?

I have in the past written critical as well as positive things here about Clarence Thomas.* And I have written at greater length elsewhere about why we should be leery of the clerkship-as-family approach to clerking, especially when it so frequently turns into the lamentable condition of former-clerk-as-hero-worshipper. So obviously my attention is bound to be drawn to a story titled "Clarence Thomas's Clerks: An 'Extended Family' With Reach and Power." Of course it would be. It was the intention of the story's writers, editors, and graphic artists that the story draw attention. But the story--which has two reporters' bylines, a credit to a third reporter and a researcher, and two people credited for having "produced" it--is striking mostly for what it lacks. With one fairly unexceptional exception, it quotes no "experts." And without exception, it offers no quotes from former clerks for any other past or present Supreme Court Justice. 

In fairness, "expert" quotes in newspaper stories are often worthless, since they frequently are used by the reporter to provide an outside voice for the point they wish to make or viewpoint they wish to share, are used for that reason, and may or may not reflect either the actual expertise of the source or the actual consensus of the field. But given the vast number of former law clerks out there, many of whom are slavishly eager to be of service to the press--even on the record--the absence of quotes from a single one of them is startling. I can't think of similar examples in other "takeout" news features. I don't think it reflects on the universe of former clerks; I think it reflects on the reporting. It's a bizarre absence that surely can't be put down to lack of knowledge or resources on the part of the reporters.

Obviously, what those clerks would have brought as sources to a story on a vast "army" or "network" of "like-minded former clerks" who have become "influential acolytes," occupying positions in "the nation’s law schools, top law firms, the judiciary and the highest reaches of government," is perspective. They might have noted, as the story does not, that six of the nine current justices were Supreme Court clerks and that three of them replaced the justice for whom they clerked. They might have said that most former clerks these days are "like-minded" to their justice and to each other, give or take. They might have said that many of them have sought to advance those like-minded views in a variety of ways, including Supreme Court advocacy, highly paid and otherwise, on the bench, in a variety of influential positions, and also as legal academics.** They could have talked about all their own reunions, gatherings, contacts, and the like. Some of these points are noted in the piece, of course, although generally without examples or illustrations. But actually talking to and quoting former clerks for other justices would have added names, color, and emphasis to those points. Even if they had only trawled the literature of law review tributes to retiring or deceased justices, they would have had no trouble, for example, finding references to the justice's spouse as chief cheerleader, a vital part of the clerk-justice-community, and so on.  

In the end, their presence could have helped the reporters, and readers, in three ways. 1) They could have identified those aspects of the Thomas clerk community and its practices that they think really are unusual, and whether they think any of those aspects are irregular or problematic or corrupt--or are simply what other justices' former clerks do, only more so. I don't suggest they wouldn't have found any unusual and problematic aspects. But the story's nut graf--its version of a law review article's paragraph explaining why the article is important or justified--says only this: "What makes Justice Thomas’s clerks so remarkable, in large part, is their success as loyal standard-bearers of his singular ideology." That is, at best, an "only more so" justification. 2) They could have talked about all the ways in which the aspects of the Thomas clerk community highlighted by the story are not exceptional, how common they are, and whether any other justices' former clerks exceed them in any way--for instance, by occupying more powerful positions. 3) To the extent that other justices' former clerks suggested that at least some of the things highlighted in the story, if not most of them, are common--for instance, former clerks occupying influential positions, or advancing their judge's jurisprudential or political "projects," or spending their careers defending, celebrating, justifying, or practically deifying their former boss--they could have led some readers to wonder either why this story focused on Thomas, or what is wrong and corrupt about this culture as a whole, as a general ecosystem of power rather than as a matter of one particular justice. 

Three reporters, two "producers," one researcher, and 3,431 words. That is epic-novel-length for a newspaper story, and more than the Times generally devotes to a justice, clerk, or former clerk. unless that clerk is marrying a quondam Internet influencer. All that, and just one unexceptional quote from one expert and no quotes from former clerks for other justices. That is just weird, and poor journalism, and a glaring absence.

* One of my posts talked about the complications involved in the modern norm of Supreme Court justices with successful spouses who are active in law or politics, a norm that reflects a larger world of two-career spouses in Washington and elsewhere. It did not suggest that such situations are de facto unethical. It did not quarrel with the extremely abstract and thus almost entirely unhelpful proposition that a justice's spouse has a "right" to "be active in politics," any more than I would say that the President's spouse does not have the "right" to be the chief lobbyist for a major corporation or the "right" to be president pro tem of the Senate. But it suggested that some such situations surely raise broader moral or ethical questions; that in some such situations questions of honor are involved; and that if a justice or other office-holder decided that their spouse's interests should come before their own, it would not be dishonorable or evidence of corruption for that office-holder to give up the office. To the contrary, it might be the honorable thing to do, just as it might be honorable for the spouse to give up his or her desire to be active in politics, for the sake of the honor of the office-holder spouse. I don't see what "rights" have to do with it. Talking about rights is simply a distraction. It doesn't tell you what you ought to do as an honorable person. (In my view, it is not honorable for a judge to decide that he or she is going to stay on the bench for decades and quite possibly until death, although that seems to be a common modern practice. But that's a question for another day.) 

By the same token, it is equally a distraction to talk about whether a justice has a "right" to "accept gifts from wealthy friends." And it is a distortion to suggest that a justice has somehow earned such a right because he or she is underpaid or "incorruptible." This gets things exactly backwards. An office-holder does not gain the "right" to accept gifts from wealthy friends because he or she is incorruptible. Rather, a justice is incorruptible because he or she does things like refuse to accept gifts from wealthy friends, regardless of whether he or she has the "right" to do so.

** The story notes that a "cluster" of former Thomas clerks has ended up at two schools that are described as "centers of conservative scholarship:" George Mason and Notre Dame. It does not say why, other than the enviable talent-spotting and opportunity-grabbing skills of those two schools, that might be. The general suggestion in the story seems to be that this is a project of the schools and/or the clerks, and not a problem with other law schools.   


Posted by Paul Horwitz on December 24, 2023 at 01:43 PM in Paul Horwitz | Permalink


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