Tuesday, November 05, 2013

Geoffrey Stone on Clerks

Jason Mazzone

Geoffrey Stone's latest criticism of "conservative" Supreme Court justices focuses on their practices in selecting law clerks. Professor Stone reports that of the twenty law clerks currently in the chambers of Roberts, Scalia, Kennedy, Thomas and Alito, eighteen previously clerked for a Republican-appointed lower court judge. Of the sixteen law clerks in the chambers of Ginsburg, Breyer, Sotomayor, and Kagan, nine clerked previously for Democratic-appointed judges. He concludes: "Whereas the more liberal justices were clearly interested in exposing themselves to a range of different viewpoints and having the positions challenged, the conservative justices went way out of their way to ensure that their law clerks were already in sync with their judicial ideology." Let's leave aside the laughably bad methodology here. Let's also leave aside the chutzpah of a liberal law professor who clerked for a liberal justice (Brennan) calling for the justices to hire clerks who will challenge their own views. The bigger problem is Professor Stone's conclusion. It takes a very strange word view to imagine that unless you get a 25 year old law school graduate right there in chambers to impart the truth, the seventy or eighty year old Supreme Court justice will be totally unaware that there exist different ways to approach and think about issues. It seems to me the influence is much more likely to run the other way. For, could a new law school graduate spend a year working closely with Chief Justice Roberts or with Justice Scalia or Justice Thomas or one of the other "conservatives" and not be shaped, perhaps fundamentally changed, by the experience? Perhaps that's the real argument for getting the liberal law graduate into the "conservative" chambers.    

Older Posts
Newer Posts