Hiding behind the robes

Lexington, VA • Monday, August 10, 2009

This commentary appeared originally in The National Law Journal on August 10, 2009.

The recent confirmation hearings of Judge Sonia Sotomayor for a seat on the U.S. Supreme Court once again illustrated how the Senate Judiciary Committee does little more than exhibit partisan proclivities by pandering to interest groups through attacking or defending nominees rather than raising more substantive, nonpartisan questions about how the structure of judicial institutions affect their decisions. Now that she has been confirmed, it is clear that one area that was in need of more attention was her plans for the selection and use of her law clerks.

A Supreme Court clerkship is a singular experience. For a short but exhilarating time, these young men and women have a front-row seat to the inner workings of the nation's highest court as they work shoulder-to-shoulder with Supreme Court justices on the most important constitutional and political issues of the day. What is also unique, however, are the lengths to which current and former clerks remain hidden in the shadows of their justices' robes. The Court's operations have become almost exclusively handled by law clerks, and the justices routinely require their clerks to prepare the first drafts of opinions (Justice John Paul Stevens is the lone exception), as well as the written memoranda that summarize the certiorari petitions filed with the Supreme Court and recommend whether the justices grant or deny each case.

A formal code of conduct forbids law clerks from discussing their job duties, a code that some justices have interpreted to extend beyond the clerkship itself. Yet on those few rare occasions when the justices discuss their staffs, they vigorously (if not dismissively) deny that their clerks wield any influence over the decision-making process. Thus we are left with a mystery: If clerks do not exercise undue influence, then why all the fuss and secrecy over their job duties? Such unnecessary concealment only erodes the public's confidence in its government institutions.

And yet the Senate is largely complicit in this secretiveness. Sotomayor's confirmation hearings provided another rare chance to pierce the judicial veil regarding law clerks, but — as in previous hearings — the few mentions of clerks were essentially casual and made in the context of larger discussions about other issues.

In fact, the only substantive question about clerks was raised by Senator Arlen Specter (D-Pa.), who asked whether the nominee would follow the traditional practice of joining the "cert pool" (a practice in which petitions for certiorari are divided among the participating justices and a law clerk drawn at random from the participating chambers reviews a petition and drafts a memorandum that is circulated to the other chambers) or whether she would follow the recent decision of Justice Samuel Alito Jr. to leave the pool and review all cert. petitions in chambers. (Stevens has never been a member of the pool.)

Sotomayor admitted that "I haven't decided anything," adding that "my approach would probably be similar to Justice Alito, which is experience the process…for a period of time, consider its costs and benefits, and then decide whether to try the alternative or not and figure out what I think works best in terms of the functioning of my chambers and the court." Despite Specter's question, there were no queries on clerk selection (including recent allegations of academic and racial bias in the selection process) nor on the crucial clerk duties of opinion writing and negotiation and bargaining that clerks routinely engage in on behalf of their justices.

Justice Louis Brandeis once observed that "[t]he reason why the public thinks so much of the Justices is that they are almost the only people in Washington who do their own work." This is clearly no longer true for justices, and law clerks who wield influence over the decision-making process — as well as the crafting of constitutional doctrine used to reach a result predetermined by a justice — arguably encroach on the judicial power granted to the justices under Article III of the Constitution.

Accordingly, the Senate Judiciary Committee must spend more time on the important topic of law clerks. Relevant questions that the committee could have asked include: How does Sotomayor plan on selecting her clerks? Will she look beyond the traditional handful of elite law schools relied upon by the current justices? Will she attempt to hire more females and minorities as her law clerks? Does she believe that the soundness of judicial decisions are affected not only by "wise Latina" judges but also by the ethnicity and gender of her clerks? And what job duties will Sotomayor assign to her clerks? Will she draft her own opinions, or will the newly minted justice rely on the best and brightest of Harvard and Yale law schools to select the words, phrases and doctrinal tests necessary to resolve the pressing constitutional issues of the day? As was true of her predecessors following their confirmation hearings, once again we do not know.

Todd C. Peppers is an associate professor at Roanoke College and a lecturer at Washington and Lee University School of Law. He is the author of Courtiers of the Marble Palace: The Rise of the Supreme Court Law Clerk (Stanford 2006). Artemus Ward is an associate professor at Northern Illinois University. He is co-author of Sorcerers' Apprentices: 100 Years of Law Clerks at the United States Supreme Court (New York University 2006).

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