Reading the Clerk Hiring Tea Leaves

Orin Kerr of the Volokh Conspiracy* poses the following question: "A Rehnquist retirement rumor seems to be making the rounds. I guess we'll find out tomorrow.  Assuming the rumors are true, anyone want to guess if there will be a third?" In the reader comments to Professor Kerr's post, one reader writes that "Stevens will be a justice until (a) there is a Democratic president or (b) he leaves the building feet first." Another reports that "[t]he latest rumor on the street is that Ginsburg will retire as well, but perhaps not until year end." As explained below, Article III Groupie agrees with the former statement, but disagrees with the latter.

Professor Kerr skillfully predicted Justice O'Connor's retirement based on her failure to hire a fourth law clerk (and he also wrote this funny post about the SOC retirement). Following in his footsteps, A3G will now read the clerk hiring tea leaves for clues concerning the future plans of Justice Stevens and Justice Ginsburg.

Justice Stevens has started selecting law clerks for October Term 2006. He recently hired Chad Golder (Yale '05/Garland (a.k.a. "the Luttig of the Left")), the co-author of this New York Times op-ed about judicial activism with Mr. Zoe Baird.** Chad's hiring suggests that JPS won't be stepping down from the Court anytime soon.

Justice Ginsburg has also begun her OT 2006 hiring. She has picked Kate Andrias (Yale '04/Bleeding Reinhardt) as one of her law clerks. Unless RBG's health takes a dramatic turn for the worse, A3G expects that Justice Ginsburg will remain on the Court through OT 2006, and probably for the rest of President Bush's term.

Finally, while we're on the subject of law clerks, some of you have asked about what will happen to the three fine folks who were hired by Justice O'Connor as her clerks for the upcoming Term: Ben Horwich, Amy Kapczynski, and Sasha Volokh. Article 3 Groupie must remind her readers that (1) as set forth in Justice O'Connor's letter to President Bush, her resignation does not take effect until "the nomination and confirmation of [her] successor"; and (2) as a still-active justice of the Supreme Court, SOC employs law clerks.

So expect Ben, Amy, and Sasha to report to One First Street sometime this month, the traditional clerk turnover month, to put in a bit of clerkly service before Justice O'Connor's replacement joins the Court. They'll sit around reading cert petitions for a few weeks -- and for that little bit of work, they'll get to call themselves Supreme Court clerks, i.e., members of the Elect, for the rest of their lives.

And what about life for the Three Musketeers after Justice Gonzales/Garza/Roberts/Luttig takes the bench? Well, who the heck knows! Obviously, given their tremendous talents, they'll have no trouble finding fantastic jobs (and probably OT 2006 clerkships too).

But maybe Ben, Amy and Sasha should take a well-deserved vacation before jumping back on the treadmill. A3G's suggestion: "You should all go to Disneyland!" (Amy, you may want to remove your eyebrow ring before going on Space Mountain...)

Update: For more on the likely fates of Ben, Amy and Sasha, check out this interesting article  by Molly McDonough from the ABA Journal eReport, "What Will Happen to O'Connor's Clerks?" The great story of how Judge Alex Kozinski landed a clerkship with Chief Justice Burger, after his clerkship with Justice Douglas fell through when Douglas announced his retirement, was previously recounted by A3G here (scroll down). By the way, the #1 Male Superhottie of the Federal Judiciary would make a superb replacement for SOC. In the words of one UTR reader, "It's time to start a 'Draft Kozinski' campaign!"

* Yes, lately A3G has been blogging extensively about items taken from the Volokh Conspiracy, a blogospheric must-read. But there is no truth to the rumor that UTR will be the subject of a hostile takeover by the Volokh conspirators.

** Mr. Zoe Baird would be Yale Law School Professor Paul Gewirtz, whom Baird blamed "for having failed to file Labor Department papers [for her household help] in a timely fashion," which ultimately led to the "Nannygate"-induced collapse of her 1993 nomination as President Clinton's Attorney General.

Comments

[YAZPJXKM]

eh, with rehnquist it's unlikely the court can get 5 votes to limit federal power. the senate is not a functional institution. this has led to the court having to take over legislative power. rehnquist is holding onto power - like the gov't generally.

[Amy Allen]

As you point out, O'Connor had hired, so that may not be the best acid test.

[Eh Nonymous]

YAZ:

thanks for volleying. Consistently? What about the so-called Federalist Revolution?

Okay, that doesn't pass the smile test. You're mostly right, of course.

Also: can you imagine a federal judiciary that intentionally minimizes federal legislative and executive power in all areas, by striking down Congressional regulation as violating the Commerce Clause, which would not also strike down state action as violating the Public Use part of the takings clause? Would such a court be able to follow the precept of judicial minimalism by limiting how far it reaches? I can't get my head around it.

Either a court will actively (and perhaps appropriately) strike down unconstitutional acts wherever it sees them, or it will limit itself procedurally so as to do as little harm as possible while still doing its job. Any other possibility would produce a useless court, as opposed to just a court open to criticism.

[YAZPJXKM]

Eh, In these times voting for either party increases federal control. Rehnquist's court also consistently favored federal control.

[anonymous]

i think garland is far less ideological thank luttig. i hope you're referring to his recent clerk placement track record.

[Eh Nonymous]

Dan: I can't prove it, but I suspect that elevated Justices may do one of three things:

1) bring with them current or former clerks
2) take on the clerks to the departing Justice, all but one of whom may be suddenly clerkshipless (don't retired Justices still get one clerk, if they choose to stay on? Or is that "senior" status or something?)
3) open the cattle calls, and draft A3G or thee or me to fill the spot.

YAZPJXKM: I'd agree with you, only it's Clinton's fault that we have such a large bureaucracy. Oh, and both Presidents Bush, and Reagan, and Carter. And Congress. Got a problem? De-elect them next time.

[YAZPJXKM]

Rehnquist has stayed a few years too long. His legacy is helping create the largest federal bureaucracy in the history of man.

[Dan]

What generally happens to the people that were signed up to clerk for an elevated circuit court judge? If, say, Garza is the nominee, what will happen to his clerks?