Underneath Their Robes: The Roberts Nomination: And What About da Clerks?

In the wake of the Supreme Court nomination of Judge John G. Roberts, Jr., lots of people have been accessing UTR lately by running Google searches like john roberts clerks and justice roberts clerks 2006. The evident public interest in this subject is not surprising. As Tom Curry of MSNBC notes:

A Roberts [confirmation] would be significant for another reason. Justices hire four law clerks a year, sharp, ambitious graduates of the nation’s elite law schools.

A conservative justice serves as mentor and shepherd for future generations of conservative judges, law professors, and congressional staffers -- the people who write and interpret the laws.

Thirty years on the bench multiplied by four clerks a year equals 120 conservative legal stars.

Roberts himself clerked with Rehnquist in 1980 and 1981.

The true dimensions of Kerry’s loss last November are about to become clearer.

The Roberts nomination thus raises several clerkly questions. If Judge Roberts is confirmed to the Court -- which is looking reasonably likely, knock on wood -- whom will he hire as his October Term 2005 law clerks at the Supreme Court? And what will happen to the individuals that Judge Roberts previously selected to serve as his D.C. Circuit clerks for 2005-2006? Will his circuit clerks accompany him to One First Street?

The most accurate answer to these questions is the same answer to such recent, speculation-fueling questions as "When will Chief Justice Rehnquist retire?" and "Whom will President Bush pick to replace Justice O'Connor?" The answer: "Who the heck knows! We'll just have to wait and see."

But a lack of knowledge has never stopped Article III Groupie before from engaging in wild conjecture. So here are a few possible law clerk hiring approaches that soon-to-be-Justice Roberts might adopt.

1. Bring back some of his all-time favorite circuit clerks.

Let's look back to October Term 1994, Justice Stephen G. Breyer's first Term on the Supreme Court. That Term, two of Justice Breyer's clerks were gents who had previously clerked for him on the First Circuit: Henk J. Brands, now a partner at prestige-oozing Paul Weiss, who had clerked for then-Chief Judge Breyer from 1990 to 1991; and Jonathan T. Molot, now a professor at GW Law School, who had clerked for then-Chief Judge Breyer from 1992 to 1993.

In Justice Ruth Bader Ginsburg's maiden Term on the Court, October Term 1993, two members of her first crop of law clerks had previously clerked for her on the D.C. Circuit: David G. Post, who now teaches at Temple University Law School (and blogs over at the Volokh Conspiracy), and Hugh Baxter, who teaches at Boston University School of Law. Baxter also had prior Supreme Court clerkship experience, having clerked previously for Justice Brennan.

The strategy of bringing back former clerks has obvious appeal. It would allow Judge Roberts to work with clerks whom he trusts, brilliant young lawyers who have already proven themselves to him. And if these clerks were able to stay awake while reading the administrative records of painfully boring D.C. Circuit cases -- no small feat -- surely they can handle clerking at the Supreme Court!

It should be noted that unlike Justice Breyer and Justice Ginsburg, Judge Roberts has been a circuit judge for only a short period of time (two years). As a result, he has a smaller crop of former circuit clerks to pick from. So don't be surprised if one of his first clerks is someone who worked with him during his Hogan & Hartson days. The basic point here is that Judge Roberts will likely choose at least one clerk with whom he has worked closely before, whether on the D.C. Circuit or at Hogan & Hartson.

One former Roberts clerk with a decent shot at a SCOTUS clerkship, assuming he had a good working relationship with the judge: the extremely handsome Matthew D. McGill, currently an associate at the awe-inspiring firm of Gibson, Dunn & Crutcher (home of former Solicitor General Ted Olson). After clerking for Judge Joseph M. McLaughlin (2d Cir.) and Judge Roberts, McGill served as a Bristow Fellow. His stint in the Solicitor General's office gives Matt the added advantage of familiarity with Supreme Court litigation.

Finally, it must be noted that Matt McGill is the beau of the luscious Lori Alvino, who is clerking at the Court this coming Term for Justice Ruth Bader Ginsburg. Take a look at the happy -- and photogenic -- couple, pictured at left (click on the thumbnail for a better view). Judge Roberts, wouldn't it be nice to give Matt and Lori the chance to spend some quality time together?

So move over, Pale Male. Legal-eagle lovebirds McGill and Alvino might be making a nest for themselves at One First Street this fall!

2. Hire clerks with prior Supreme Court clerkship experience.

Newbie justices sometimes take this tack because they want someone in chambers with an intimate familiarity of the workings of the Court. Of course, in light of Judge Roberts's extensive knowledge of the Court, based on many years of practicing before it, as well as his own status as a member of the Elect, this may be less of a priority for him.

Still, it can't hurt to have someone around who "knows the robes [sic]." Even though Justice Breyer had also clerked at the Supreme Court (for Justice Goldberg), he still brought an experienced high court clerk along with him during his first Term: Henk Brands, who had clerked for Justice David H. Souter after his Breyer clerkship. And as noted above, one of Justice Ginsburg's clerks in her first Term on the Court, Hugh Baxter, was a former Brennan clerk.

If Judge Roberts does want to hire someone with past Supreme Court clerkship experience, one natural source would be the ranks of his fellow former Rehnquist clerks. Surely Judge Roberts has met many of the Chief's former clerks at WHR clerk reunions over the years, and he has probably developed good friendships with at least some of them.

3. Take his incoming circuit court clerks with him.

As a highly regarded judge on the venerated D.C. Circuit, Judge Roberts has managed to score some pretty hot clerk ass, i.e., extremely high-powered and impressively credentialed young lawyers. Indeed, one of Judge Roberts's clerks, the very cute Jeffrey Pojanowski, is clerking for Justice Kennedy this Term. (Pictured at right are Jeff Pojanowski and his lovely fiancee, Sarah Bennett, who are getting married next month. Perhaps their ineluctable New York Times wedding announcement will be covered by Veiled Conceit, where Judge Roberts's own wedding announcement was amusingly dissected.)

Given the rather high quality of Judge Roberts's D.C. Circuit clerks, it would not be surprising for him to take some of them with him to the Supreme Court. A3G knows that at least two of Judge Roberts's 2005-2006 clerks are very academically accomplished. Anton Metlitsky, pictured at left, graduated magna cum laude from Harvard Law School, where he served on the Harvard Law Review (as articles editor).

George W. Hicks, who landed a coveted job at the SG's office this summer, also graduated magna cum laude from HLS, where he was also a member of the Law Review (as well as the Harvard Federalist Society). George Hicks is pictured at right; he's the fellow on the left in the pink necktie. Quite good-looking! And his bowtie-sporting friend is cute too (but off the market, since this photo was taken at his wedding). (Click on the thumbnail for a closer look.)

More trivia about Messrs. Metlitsky and Hicks: they were in the same first-year section at HLS, and they both worked as investment bankers before law school.

Do incoming justices who previously served on circuit courts take their clerks with them? Sometimes yes, sometimes no. Let's return to the Breyer precedent. One of Justice Breyer's OT 1994 clerks was a clerk who was originally selected to clerk for him on the First Circuit: Lisa Schultz Bressman (Chicago/Cabranes (D. Conn.)), now a law professor at Vanderbilt.

When Justice Ruth Bader Ginsburg was elevated in 1993, she took Margo Schlanger along for the ride. Schlanger had been scheduled to clerk for then-Judge Ginsburg on the D.C. Circuit in 1993-1994. Schlanger, who is now a law professor at Washington University School of Law, served a two-Term clerkship with RBG. (Professor Schlanger is married to another member of the Elect and former RBG clerk, Professor (and blogger) Sam Bagenstos.)

Now, John Roberts is by all accounts an extremely nice man. (Heck, even liberals have stories of his kindness.) A3G would not be surprised if Justice Roberts, because he's such a kind and generous guy, offers his 2005-2006 D.C. Circuit clerks the opportunity to clerk for him at the Supreme Court in October Term 2006. This would allow them to get clerkship experience on a lower court in the meantime, so they would arrive at the Court for OT 2006 just like high court clerks coming from any other lower court judge. (Yes, most judges have hired already for 2005-2006, especially the top feeder judges. But last minute openings always pop up, especially if you're as bright and as talented as Anton Metlitsky and George Hicks.)

This would not be unprecedented. When Justice Clarence Thomas made the move from the Prettyboy Courthouse to One First Street (October Term 1991), Dan Himmelfarb, one of the clerks slated to clerk for him on the D.C. Circuit, was promptly dispatched to the chambers of Judge J. Michael Luttig. After serving as a Luttigator, while CT was completing his first Term as a justice, Himmelfarb went on to clerk for Justice Thomas in OT 1992. Dan Himmelfarb now works in the SG's Office. (And yes, Dan is related to (nephew) the noted historian Gertrude Himmelfarb, wife of Irving Kristol and mother of William Kristol.)

In 1993, when Justice Ginsburg made the same move as Justice Thomas, she also "took care of" the clerks that she had already hired to work for her on the D.C. Circuit (in addition to Margo Schlanger, who accompanied RBG to the Court). Justice Ginsburg helped her scheduled law clerks from the D.C. Circuit to find jobs for 1993-1994, and she eventually hired all of them to clerk for her on the Court.

David M. Schizer, currently the dean of Columbia Law School -- a post he assumed at the tender age of 35, making him the youngest dean in the school's history -- followed some classic advice: "Go West, young man!" He headed off to clerk for the #1 Superhottie of the Federal Judiciary, who had an unexpected vacancy in chambers that Schizer filled. After his clerkship with Judge Kozinski, David Schizer went on to clerk for Justice Ginsburg in OT 1994.

The third circuit clerk for Justice Ginsburg, Alisa B. Klein, went to work that year for Judge Louis H. Pollak (E.D. Pa.), the former dean of Yale Law School. (Judge Lou Pollak was, back in the day, that rara avis: a district court feeder.) Judge Pollak had an opening in chambers because one of his clerks had withdrawn at the last minute. Like Schizer, Klein also clerked for Justice Ginsburg in OT 1994. Alisa Klein now works at Main Justice (Civil Appellate).

4. Pick up an O'Connor clerk.

As you can see from A3G's profile of the three clerks that Justice O'Connor hired for OT 2005, before she decided to step down, they're all amazing, and they'd make great law clerks. Retired Justice O'Connor will get to keep one of them, as noted in this interesting article by Tony Mauro (link via How Appealing). So why not leave Amy Kapczynski with SOC -- with her pierced eyebrow and liberal politics, Amy's probably not your kind of gal, Judge Roberts -- and give some thought to hiring either Benjamin Horwich or Sasha Volokh?

Indeed, picking up the clerk of a retired justice is what Justice Breyer did in OT 1994. A3G has already accounted for three out of four Breyer clerks from that Term (Brands, Molot, and Bressman). The fourth SGB clerk, Deanne E. Maynard (Harvard/Harris (D.D.C.)), was already at One First Street, clerking for Justice Powell. Maynard, who used to be a partner in Jenner & Block's turbo-charged D.C. office, recently joined the Solicitor General's Office (per SCOTUSBlog).

5. Hire Article III Groupie.

Article Three Groupie is unforgivably sexy, but she's also pretty darn smart. She writes with impressive clarity and vigor. As she has demonstrated by balancing her running of a popular blawg with her day job as a law firm associate, she has an incredible work ethic. (Yes, she's writing this post at four o'clock in the morning...)

Her blog is admittedly permeated by a frivolity that belies her intelligence. But make no mistake about it: when rigorous analysis of complex legal questions is required, A3G can "bring it" (even though she'd much rather be "bringing" a Fendi "beggar bag" purse). You don't assemble this record of academic achievement, and score multiple Supreme Court clerkship interviews,* by being a dummy.

Finally, Judge Roberts, A3G has other positive qualities that many members of the Elect sadly lack. These include an encyclopedic knowledge of high and low culture, an unerring sartorial sensibility, and a remarkable ability to issue luxury hotel recommendations off the top of her head. So please, she begs you: email her and offer her a job!

* True, Article 3 Groupie didn't get a One First Street gig out of these interviews -- a tragic loss that will forever haunt her. She likes to think that while her impeccable paper credentials were up to snuff, her interviewers couldn't handle a larger-than-life personality (which people are unfortunately less willing to tolerate in women). But perhaps you, Judge Roberts, might be man enough to handle A3G!

Comments

Ruth McGregor (current Chief Justice of the Arizona Supreme Court) once clerked for Justice O'Connor on her first term. O'Connor wanted to hire someone she knew and trusted, so McGregor took the job, even though she was a senior associate (or maybe a partner? I forget) at the time.

I know someone on the wrong end of the promotion game. A certain magistrate judge at the District of Arizona hired his clerks. Then he was unexpectedly nominated (and confirmed) to the 9th Circuit. Thing is, 9th Ciruit is much more prestigious than magistrate judge. So the poor clerks in D. Ariz. were stuck while the judge hired people with better credentials for the 9th Circuit position.

Posted by: Anonymous | July 27, 2005 at 04:59 PM

Woohoo! I'd vote for you, if I had a right to an opinion. I *so* wish we had SCOTUS judges with a vague clue about technical issues. There's a big difference between churning butter and RSS. Duh.

Posted by: Terry Jones | July 23, 2005 at 12:37 AM