The politics of SCOTUS clerking

Looks like my guide on how to become a clerk on the U.S. Supreme Court is now at least a two-part series. In Part One, I told you the importance of coming from a top-10 law school. Today’s lesson: have the right (or left) ideology.

The New York Times reported this week that all 84 of Justice Clarence Thomas‘ clerks “have first clerked for an appeals court judge appointed by a Republican president.”

Thomas explained his reasoning a decade ago, according to The Times: “I won’t hire clerks who have profound disagreements with me. It’s like trying to train a pig. It wastes your time, and it aggravates the pig.”

Thomas is the extreme example of a growing partisan trend in clerk picking on the Roberts court, with the conservative justices almost exclusively following Thomas’ example while liberal justices largely pick clerks who served for appeals court judges appointed by Democratic president. Justice Stephen Breyer is the only member of the court who comes close to picking an equal number of clerks from both sides.

The Times also reports this doozy: More than half of the clerks who have served on the Roberts court came from the chambers of just 10 judges. Three judges accounted for a fifth of all Supreme Court clerks. So if you clerk for Judge Merrick B. Garland in D.C. or Judge Alex Kozinski on the 9th Circuit, you’re in luck!

A 2008 study found that clerks that identified themselves as Democrats increased the chances of a liberal vote by their judge in the same manner as a Republican clerk/conservative justice combination.

New Justice Elana Kagan‘s clerks for her first term, incidentally, show another popular trend – clerks who clerked for other justices. Kagan took former clerks of Justices Ruth Bader Ginsburg, Breyer and Anthony M. Kennedy.

Whatever happened to him?

Lots of people predicted President Obama would nominate Solicitor General Elena Kagan for the Supreme Court. Not me.

I didn’t see it coming or, more precisely, I didn’t want to see it coming.

After all, the last time I predicted that a solicitor general would become a justice,  I was wrong.

It was 1990. Justice William J. Brennan Jr. had just announced his retirement. President George H.W. Bush would get to pick Brennan’s successor.

Certainly, I thought, Bush would pick the solicitor general, a respected attorney who had stepped down from the U.S. Circuit Court of Appeals in Washington, D.C., , to take that post. An appointment to the high court would be the man’s reward for this loyal act, I thought.

But, alas, Bush appointed David H. Souter to succeed Brennan.

I wonder whatever happened to that solicitor general – a gentleman named Kenneth W. Starr.

Love is major

Just finished reading Adams v. Rice, the D.C. Circuit’s pronouncement that sex is, indeed, a “major life activity” under federal disability law. A story in this week’s Legal Times says Adams, and another case that bestowed the same status on sleeping, could lead to a lot more litigation.

If that’s true, we should be almost nine years into the surge already. The 9th Circuit decided that sex was a major life activity back in December 1999, in McAlindin v. County of San Diego. (Stop smirking, it was not a Kozinski opinion. It was authored by Judge Dorothy W. Nelson, former dean of USC Law - my alma mater – where her image smiled kindly from the wall of the main lecture hall. With her prim blue suit, her tilted head and her neatly folded hands, Dean Dottie looked like she was about to offer us all a nice cup of tea. What better person to declare that sex is a major life activity?)

But, back to the D.C. Circuit. Kathy Adams says she was turned down for a Foreign Service post because she’s a breast-cancer survivor. The lower court threw out her case because being a cancer survivor is not a disability.

Adams, while she’s “fit as a fiddle” otherwise, said she’s still disabled because “the prospect of dating and developing an intimate relationship is just too painful and frightening. While I have overcome the physical disease,” she said, “my ability to enter into romantic relationships has been crippled indefinitely and perhaps permanently.”

That, combined with Adams’ history of cancer, was good enough for the D.C. Circuit, which remanded the case. No matter that the government insisted it didn’t know Adams wasn’t interested in sex.

Curious, isn’t it? If it hadn’t been for her lack of a love life, the State Department would have been free to discriminate against her based on her prior battle with cancer.

I think I will have that cup of tea now.

BARBARA GRZINCIC, Managing Editor/Law