Nomination Nation

News, views, and gossip about judicial appointments. Please send your tips to Pozinski [at] gmail [dot] com or Senator [dot] Spectator [at] gmail [dot] com.

Wednesday, September 29, 2004

Friends of the Five Friends of Bush

One of the perks of confirmation as a life-tenured federal judge is the ability to select America's top law graduates each year to work as law clerks in your chambers. You can trust your clerks, because ethical rules prevent them from discussing pending cases and require them to disclose any conflict of interest between them and a pending case. The Supreme Court (SCOTUS) not only requires clerks to remain silent about pending cases, but also explicitly requires clerks to sign a confidentiality agreement. This vow of silence bars them from ever talking about anything discussed during their time at the Court. Edward Lazarus, author of Closed Chambers (a detailed account of his time as a clerk to Justice Blackmun), and inspiration for the rule, calls this vow a "rule of secrecy surpassed only by the CIA."

Vanity Fair magazine recently wrote an expose on Bush v. Gore, where they interviewed several former Supreme Court law clerks. Broadly stated, the article's theme was that Bush v. Gore was about politics, not law. Former clerks of the "liberal justices" offered a behind-the-scenes look at the case to support VF's thesis. As the magazine acknowledged, these clerks provided unprecedented access to decision-making at the Court. The clerks' justification for spilling the beans? Since the Court did not follow what they believed to be the Court's proper role in adjudicating Bush v. Gore, the clerks don't have to abide by their gag order. The clerks felt that the Court didn't live up to its end of the bargain.

This caused an uproar. Miffed that former SCOTUS clerks broke their vow of silence, several former clerks rallied and signed a statement of outrage provided to Legal Times:

Although the signatories below have differing views on the merits of the Supreme Court's decisions in the election cases of 2000, they are unanimous in their belief that it is inappropriate for a Supreme Court clerk to disclose confidential information, received in the course of the law clerk's duties, pertaining to the work of the Court. Personal disagreement with the substance of a decision of the Court (including the decision to grant a writ of certiorari) does not give any law clerk license to breach his or her duty of confidentiality or "justif[y] breaking an obligation [he or she would] otherwise honor." (emphasis added)
One would think that, in attempting to confirm their "differing views on the merits of [Bush v. Gore]," the statement's drafters would have amassed bipartisan support by soliciting ex-clerks from the chambers of both liberal and conservative justices. Additionally, this cross-ideology alliance would further show that Bush v. Gore is indeed about law, not politics.

Unfortunately, the opposite is true. Nomination Nation, inspired by A3G's investigative journalism, decided to track down all of the statement's signatories. We then matched each person with his or her justice or, if they are not ex-clerks, with his or her field or political connections.

The results were staggering. Of the 96 signatories (9 of which were never SCOTUS clerks), 65 of them clerked for one of the "five friends of Bush" -- the conservative majority in Bush v. Gore. 4 clerked for minority justices, and the rest of the ex-clerks' justices have retired or passed away, most if not all of which were conservatives (e.g. Chief Justice Burger, Justice White). Perhaps less surprising, the most common justice was Justice Kennedy, who coincidentally takes the hardest hits from the article.

Of those who were not ex-SCOTUS clerks, all are prominent conservatives. Among the signatories: former RNC General Counsel Jan Baran; Bush I Attorney General William Barr; Reagan and Bush I Attorney General Dick Thornburgh; Bush I White House Counsel C. Boyden Gray; Judge Kenneth Starr, who impeached President Clinton; former Solicitor General Ted Olson, who argued Bush v. Gore before the Court; and several high-ranking attorneys from the Office of Legal Counsel and Office of the Solicitor General in the Nixon, Reagan and Bush I administrations.

Not the most diverse group of viewpoints. So how did this list get assembled? One of the signatories, an ex-clerk of Clarence Thomas, tells Nomination Nation that (s)he received the statement from another ex-Thomas clerk and that it "just got passed around from one friend to the next." Either that, or someone has the Federalist Society mailing list saved in their Outlook Contacts.

The lady doth protest too much, methinks.

TO VIEW THE ENTIRE LIST, WITH NAMES, JUSTICES OR OTHER BACKGROUND INFO, CLICK HERE.
PLEASE CREDIT NOMINATION NATION WHEN CITING THE LIST.


_______________________________________________

Senator Spectator collaborated on this report.

_______________________________________________

For a list of the Supreme Court clerks who were there when Bush v. Gore was decided, check out this post at the blog Underneath Their Robes.

For more on the Vanity Fair article, check out this post at Life, Law, Libido.

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While I don't discount the possibility that the letter was motivated in part due by the signatories' respective political leanings, that does not undermine the substance of their position--i.e., that it was highly unethical for these clerks to speak on the issue.

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