Transcripts For CSPAN3 Former Law Clerks On Supreme Court Experience 20240713

This took place at the George Washington University Law school in washington, d. C. Ladies and gentlemen, welcome to our symposium celebrating the 100th anniversary. 100 years ago today, not today, but 100 years ago this year, Congress Passed a tat chute authorizing each justice to have a stenographer and a clerk and ever since then, the clerkships have developed into a superb institution and the National Institution center in philadelphia is honored to bring together former Supreme Court clerks for the first time in history for an all clerk reunion. Representi ining clerks from 25 justices over 50 terms. To come and celebrate this great anniversa anniversary. I am jeffrey rosen. Also a professor here at George Washington law school and im so happy both these institutions i care so much about have united for this important ak dcademic symposium. The Constitution Center in philadelphia has a very Inspiring Mission from the u. S. Congress and that is to bring together citizens of different perspectives to educate themselves and celebrate this great document of human freedom which binds us, the u. S. Constitution, and we do that by assembling panels and podcasts and most importantly, education materials that bring together leading thinkers in america to explore areas f agreement and disagreement about the constitution. The most exciting platform for our educational efforts is called the online interactive constitution. It is a remarkable platform where the Federalist Society and the American Constitution Society have nominated scholars to write about every clause of the constitution, describing what they agree and disagree about and its thrilling this amazing platform which has gotten 25 million hits since it launch ed in 2015 has 30 former Supreme Court clerks among the more than 125 contributors and youll be hearing from some of them this evening. This morning, Gw Law School brought together clerks associated with gw. Both former students and current faculty and one of the clerks talked so powerfully about her clerkship taught her about justices and clerks can talk about without being disagreeable. Having debates without descending into partisanships. Thats why its so inr spiring our panels today bring together clerks of different views and years to share their experiences and to respectfully engage in civil dialogue, the essence of the american experience. We have three panels. The first is b about peoples experience during the clerkship. The second is about life after the clerkship and the third is is is a really wonderful opportunity to hear from two of americas greatest. Judge wood and sutton and how their experiences clerking on the court influence the way they interpret the constitution and the way they influence their hole rol roll has judges. We have a first Panel Moderated by canon and he is chair of the Supreme Court court. An Appellate Practice Group at paul weiss and clerked for Justice Scalia. He is going to introduce the panel. Take it away. Fwraet, well thank you very much, jeff and the a great pleasure to be here at Gw Law School. Just a couple of blocks away from my office. So this is very much the local law school. But it is a great pleasure to be here. Thank you to gw for hosting us and thank you to the national Constitution Center for putting together this program. Its really my great privilege to be the first of this afternoons panel and we have a great here to talk about the broad subject of clerkship experiences and so very briefly to introduce the panel, starting on my immediate left, john elwood, who is a partner and head of the Supreme Court and appellate practice at arnold and porter and john clerked for Justice Kennedy. Justice krueger to his left, a member of the california Supreme Court who clerked for Justice Stevens. Rory little, a professor at Uc Hastings College of law who is currently visiting at yale law psychological who clerked, who was originally hired by Justice Stewart bhthen basically clerke for the entire Supreme Court. Talk about that in due time, then finally jane, a member of f the Civil Liberties r board. She merely clerked for two justices. Justice sotomayor and gorsuch. For him she also clerked on the court of appeals for the tenth circuit. So i thought we would start today at beginning and talk a little bit about the experience of interviewing for a Supreme Court clerkship and getting hired. So i think ill start at the far end with jane, our most recent clerk and therefore presumably has the best memories of getting hired. Obviously getting hired by Justice Gorsuch was a little bit unusual since you worked for him on the court of appeals, but maybe you could tell us about gettinging hired first by Justice Sotomayor. The second time around, it was a phone call. A lot easier, no interview. So the first time around, it was, many people apply to the clerkship. But i didnt think i had the background, the grades so i went on to a law firm. It was f the law firm then judge gorsuch called me once a week. He was like get your application into the court. And so i stuff. Resume writing samples and the like and you send it to all justices across the board. And then i just remember being sort of stunned the day that i got a phone call to come in and interview with Justice Sotomayor for i think a few days, you know, from the phone calls. There really wasnt that much time to prepare. And you know its very intimidating. You walk into the court and its this grand building, of course. And i think most justices have interviewees interview both with the clerks and also with the justice. And each justice i think has different experiences how substantive the interview will be. Justice sotomayor, this is publicly known, she is fairly substantive. So we had a sit down with the clerks and then with the justice. One thing that struck me about her, it was a substantive component to the interview and a personal component to the interview. She talks about she really cares deeply that the clerks are civil with each other, good people, we get along with each other, we get along with clerks from the other chambers. I think she sort of tries to screen for that in her interviews. So that was that. I got a call sort of a week later and was obviously thrilled to say yes and it was an amazing year from there. Ill turn to rory little. Rory, you really did in a real sense clerk for, i think, five justices which has to be like the modern record. Tell us the story about how you were hired by Justice Stewart and how you came to be the serial law clerk. Well, thanks, cannon. And thanks to jeff rosen. And g. W. How many liaw students in the crowd . If you are looking for a job so i got there through the back door in the sense that i applied twice to the Supreme Court two different years and was rejected by all nine justices two years running. And i had a visiting professor at yale who was disenchanted with yale who wrote a letter for me. When he wrote the letter for me he said to me, oh, by the way, ill write for you, but youve just got to remember being selected it like being struck by lightning. I think he was trying to let me down easy, like you are not going to be in that group. But Justice Stewart, it was not as well known that the retired justices had clerks at the time. A friend of mine clerking for Justice Blackmon said blackmon just picked. Youre done. You didnt get picked. But have you thought about the retired justice . I said i hadnt. So i sent a letter in to Justice Stewart and what i didnt know, i had interviewed with powell, and powell had sent a note to stewart saying if i could have hired a fifth clerk, i would have hired this guy. So i got that job through interviewing really with powell. And i just wanted to say that you cant prepare for these interviews. I thought there would be a substantive component to the interview. Justice powell really wanted to talk about nothing other than who i was, where i had grown up, what my parents had done, what their parents had done. It was very personal. And i wasnt prepared for that. But then when i got there, ill just say Justice Stewart kindly sent a note around saying this guy is available because i have halftime work at which point justice, chief Justice Berger let me do certain pool memos for him. I arranged two months with powell, two months with stevens, and two months with oconnor. Then brennan picked me up as a fulltime clerk because he had an open spot unexpectedly. Suddenly i was working for him full time. At the end of the two months with stevens he said could you please stay with me full time. He had two clerks. Everyone else had four. I went to brennan and stevens and they said it doesnt matter. We want them to know exactly what we think. There is no confidentiality here. Just tell them. So thats what i did. And two months with powell. The only person i didnt work for is Justice Oconnor. When she learned i was going to be full time in brennans and stevens chambers, she pulled out of two months with me because she was worried about confidentiality. She later said to me, you know, i was new then. She said shows you how long its been. Anyway, it was great. You have been able to hold down a job a let better since then. So i have a question for Justice Krueger, which is a twopart question. Its great to go an advocate and asking a judge a multipart question. Tell us about your interview with Justice Stevens. And as a sitting justice on this panel tell us a little bit about how you interview law clerks. Sure. Well, i was a little afraid you would ask this question because i remember everything about the day i interviewed for my clerkship in extraordinary detail. I remember getting off the metro, walking out in front of the library of congress on, walking the Supreme Court steps into the Marshalls Office to wait to be picked up for the interview. I remember nothing about the interview itself. Its as though i had an out of body experience. I think i was going, oh my goodness, i am talking to john paul stevens. I remember one question that he asked, which was what Supreme Courts decision did i think was the worst. And i had a moment of ever or recently . But the remainder of the conversation apparently went fine. What was the answer . Have you blanked that out, too . I may have blanked that out as well. I think i named a recent decision that unsurprisingly he had dissented from. Thats a diplomatic way of putting it. Tell us a little bit about how you interview for candidates. Well, i generally try to get a sense of why they are interested in the job, what interests them in clerking on a court of last resort, as mine is in particular. The role that we play in our system of appellate review in california is different from the rules that other courts play, including intermediate courts of appeal. So i like to get a sense of sort of what is the candidates interest in working on those issues and what is the candidates interest in the law generally, sort of where this does this fit into that persons set of thoughts about the range of things that might be of interest to them after the clerkship experience. But i think one thing that i really learned from working with Justice Stevens and especially from returning to visit with his law clerk family over the years is the importance of not only competence in a law clerk, but also character. I think one of the things that really strikes me about the way that Justice Stevens selected clerks is he was really interested in finding people who were not only very good at learning the law and doing the research, but were also nice people. Good people to be around. People who were inclined to lend a helping hand to people around them, and that is something that i try to look for as well when i do my clerkship hiring. Just a point of clarification. You are not completely a court of last resort. I am about to file a cert petition from one of your decisions. Just to be clear, you didnt write the opinion. She may end up being the odds are mathematically in her courts favor. So, john, tell us a little bit about your experience being hired by Justice Kennedy. Well, Justice Kennedy, its a very complicated or was a very complicated process. He had kind of two rounds. You first had the screening interview with former clerks and then you would go on to the justices chambers. Both the screening interview and the interviews with the clerks tended to be substantive. So you literally prepared for it like you would an exam. You just read a stack of Justice Kennedys opinions to get a sense of his work and, you know, answer questions about it. But it came at a good time because i was given the screening interview right after the blizzard of 96. So i was literally trapped at my crummy apartment in crystal city, and i had nothing to do but read the opinions anyway. So that was kind of fortunate. But the interview with Justice Kennedy himself was much more at that point, if you had gone to him, you know, he has decided his people have all just, you know, i talked to you and he decided that you have the stuff. The question is what kind of a colleague youd be. So i pulled the wool over his eyes. But i still remember how he began it. But thats about the only thing i remember, is he said, so how am i doing . And its just kind of an openended question. Its potentially fraught i dont remember what my answer was, but i apparently didnt offend him. He was incredibly gregarious and pleasant person to talk to. Can i tell you that was not a question Justice Scalia asked me during my interview . That may reflect some personality differences. Yes, i suspect so. Are you going to tell us about your interview with Justice Scalia . No, i am going to exercise the moderators prerogative. I will say that my recollection is a lot like Justice Kruegers. I remember everything but the actual interview. Let me throw a little bit of a fastball at the panel. And it is this. One of the criticisms of the Supreme Court clerkship is that its a very elite clubby institution. You know, this panel consists of five people. I think two of whom went to Harvard Law School and three of whom went to the other well known law school. And those two law schools, harvard and yale, provide, you know, a vastly disproportionate of the Supreme Court law clerks. The justices tend to hire their law clerks drdisproportionate n of many whom of their friends. Who do you say this is not a mayor cratic institution, somewhat of an elitist one . I have tenure. I am not going to get nominated for anything. Ill say of course it is not a meritocracy entirely. It is a set of connections. Its horribly that way, in my opinion, which doesnt mean you cant break out of that. And some of the justices now i think are working hard to hire from a diversity of law schools in some sense. And some of it i think has to do with the belief, which may or may not be true, that these law schools do produce really good lawyers and that they, today at least, screen through other judges. Thats half true. Nobody got my joke. So i think, i mean, we all probably could tell in candid moments if we werent thinking of our futures stories of connections that were developed at these schools. I guess the one thing that i would add is, you know, i think im somebody who went to law school not really knowing what it meant to be a lawyer shall not really knowing a lot of lawyers very up close and personal. I think i went to yale law school, which where there was a very substantial culture of clerkships. There was a focus on the importance of clerkships and the value of having that clerkship experience that i might not have gotten quite as much of if i had gone to a different school. I think that is certainly part of what set my mind to open my mind to the possibility of clerking after law school and part of what ultimately led me to throw those applications into the mail where i might not have done that had i not gotten the same degree of encouragement. I think when i was in law school there was a part of this culture of clerkships was a lot of anxiety monk t anxiety among the students of creating connections, developing the relationships with the professors who knew the judges and so on, and i found that dynamic pretty off putting and difficult to navigate. And so sort of tried to bypass it as much as i could. Part of what ultimately led me to apply for the clerkship and part of what i think ultimately helped was a set of relationships that i developed after law school when i had started working and had actual daytoday working relationships with practicing lawyers who both provided the kind of kick in the pants that janie was describing to get the applications in and provided, you know, also the support necessary to, the willing to sort of vouch for me and my abilities and potential as a lawyer that i think ultimately laid the groundwork for my being able to get the job. Any other thoughts on this subject . John, janie . I think that there is a much broader pool of people who could do the work than who are selected because but what your professor told you about lightning striking is right. Or winning a lottery. And there is a fair number of people who could do this work. And so, you know, it really kind of just depends on winning the lottery once you are there. I came from yale. So i had at least, you know, i was one of the schools that produces a lot of the clerks. But i at least came through a judge who i was his only Supreme Court clerk ever. He was not one of the feeder folks. But i do understand somewhat of why justices go back to the same clerks in the same judges so often just because, you know, certain things are so important, and having the recommendation of somebody who you trust and who has, you know, given you reliable advice in the past can be very helpful. And i understand, i mean, when you see. So cases that they take that are so hard, you can see that they want, you know, they dont want to leave anything to chance. Yeah, i dont have all that much to add to it. It certainly felt like lightning struck. I think it is lightning striking. There are certainly more qualified folks out there who can do it than people who get the job. The only thing i would add is something that you touched on, which i think it is getting better. I think the justices are making a concerted effort to look at schools beyond sort of the top five or the like. I know that Justice Gorsuch, for instance, he has a screening committee. I am on it. We try to look at schools beyond harvard and yale and the others you might think of, and once you are sort of picked out of the pile, then from then on i would say it is substantive and personality, of course, and fit. And then the only other thing i would add is i do think it helps i also felt it was offputting in sort of law school to like actively for the purpose of getting a clerkship make connections with the professors and the like. I lucked out in having as a Circuit Court judge someone who was a phenomenal mentor for all of his clerks. And so really pushed us to achieve what he believed we could achieve. So i do think it is important over the last two to have sort of someone behind you and some mentor behind you pushing you to take those steps and also being willing to sometimes make a phone call because those phone calls do matter. I dont know that that makes it elitist because the phone calls in my experience based on merit, a judge or professor saying this is the best of the crew i have had in ten years. You should take a close look. It doesnt mean that person is going to be hired. They will take a look at him. That is someone sort of piece of sort of advice i have. This is for the students who are here from g. W. There is no easy direct path to this, and my really strong advice is follow your heart in some sense and not some preordained path that you think works. I will tell you two things. One, i turned down a circuit clerkship which i had been sent to by a Screening Panel at yale in favor of a District Court judge. When i got back the professors said why did you pick this obscure District Court judge as opposed to this guy who is a feeder . I said this guy was a jerk to me, frankly, in the interview and i like this District Court judge. I didnt have any pretension of going to the Supreme Court. Two years later when i finally got there, Justice Oconnor also picked another clerk from the same District Court judge here in the district at which point the National Law Journal said feedtory the Supreme Court. The other thing i say is i didnt have a letter from the prominent professor. I had to use a visiting professor who didnt like yale that much and so we would run together. We would run together three days a week. And thats why he was willing to write me a letter. And it turned out he had clerked for Justice Powell and Justice Powell interviewed me. So dont go after dont get stuck in that you are right. You dont get stuck in that sort of i got to do the right thing in order to position myself for something five years from now. Doesnt work that way. Great. Well, our panel has captioned clerkship experiences. We should probably talk about the clerkship experience. We will go in the other direction this time. Just give us a sense of what it was like to clerk for your particular justice, what you did and, you know, what the daytoday life of being a Supreme Court clerk was like. So i had the office closest to Justice Kennedy, which meant that he used me as essentially the administrative person, too. And he used me for all sorts of default things. Once i got a call when he was on the road and he was in, i think asheville, and he said, you know, john, i need a good barbecue place. And so i would and this was before the internet. So i actually had to go on westlaw or lexus and lieu. But i found him a place. It was conveniently located next to the hospital in nashville. You know, there is the opinion work, of course, and getting them ready for the argument. So there is merits work. There is cert work. And then there is kind of the, yeah, emergency stuff like death penalty, things like that. And then the bullet that i dodged, speeches. I never had to write a speech for him. I feel like i have, you know, karma is going to bite me at some point for that favor. But whatever happens to me, whatever grievous disease i die of, it will have been worth it because i didnt have to write a speech. But, you know, the cert work is kind of constant through put. You have to do that every week. And stay on top of that. The merits work is the kind of glamorous stuff. We should be clear. By cert work, the review of petitions for ser shiori for the court . Exactly. The thing thats most note worth is Justice Kennedy wanted to talk about all of his cases with all of his clerks. So wed sit around the table and you have an opportunity to chime in and talk about it. He would take it seriously. We would talk about it endlessly. There are cases now that are so obscure, admiralty cases and things like that and we would talk about them for louhours ond sitting around the table. I thought about the three stooges joke where you paint eyes on your eyelids so you could fall asleep and theyd think you were staring at them. One thing he was always very fond of is he had a big, big pad and he would find a way to do it a diagram for almost any case because wed use the diagram for the admiralty case. So i dont quite understand that. But that was one of the good things, is you had an opportunity to tchime in on evey case, although it was also a curse. So, Justice Stevens was famous for doing a lot of his own drafting and so did that make the clerkship experience a little bit different with Justice Stevens . It made it a little bit different. It didnt make it as different as i think id expected it to be before i started the clerkship. It was often so Justice Steven sort of famously would write his first drafts for the purpose of assuring himself that he had cast the corrected vote in the case. After the opinions had been assigned he wanted to be sure his reasoning held up. For him righting down his reasons for a particular vote making sure that everything held together. The very beginning of the year, you know, sometimes those drafts would come in and they would be fairly complete. Some fleshing out to do, some additional research, addition of citations, but we quickly learned that that wasnt always the norm. He would right sort of just enough to perform that function and make sure he cast the right vote, but not more. Sometimes we would be sitting around the table talking about a case after conference when he was reporting what the vote had been and what the likely outcome was, and he would go back to his office and half an hour later an email would pop up in my inbox with two paragraphs of sort of the seeds of a separate opinion. It was my job to sort of take that reasoning and sort of flesh it out and make it into a sort of fuller fledged opinion. And sort of the exchange of ideas through the opinion writing process was really remarkable in a lot of ways. Justice stevens was at the time i clerkd for him, he had been on the court already for almost 30 years, which was longer than i had been alive at that point. And just brought to every case, you know, sort of both a wealth of background knowledge and sort of, you know, sort of inside baseball about the set of precedents that had led us to this point, but also a real enthusiasm for learning more. He treated every case as an opportunity to learn something new about a new area of law or life that he might not have known very much about before, and it was in the end, in addition to being incredible educational experience, it was a lot of fun. So, rory, as weve discussed, you are sort of in the unique position of being able to compare and contrast clerkships across ultimate chambers. Tell us how the practices for the various justices you clerked differed. Wells, ill do that and share an idea with the clerks in the audience. Here is what ai will say first, which is one of the huge values of this experience is not as of your relationship with the justice as with your coclerks. When i say coclerks, i dont just mean in your chambers. I mean the clerks in the building, 36, 34, 37, however many. Those folks are still come somey closest friends and most of us, i think, are having a reunion weekend of just our terms clerks across the chambers. Thats a huge thing to think about. And ill say this as well. There is a Basketball Court in the court. Did you ever play on the court . Not very well. No. Nobody plays very well. But thats why were all law clerks. But its important to do that because the collegiality among the chambers i think was very important to the way the term went. My term october term 84 produced a few decisions. No earth shattering once that you may remember. The clerks got along well. Thats not true every term. I dont know why justices dont share law clerks across chambers. I am going to publish this in the g. W. Law review as a result of this panel of the idea of sharing law clerks across lots of courts do this. They have staff attorneys. Attorneys work for Lake Oroville lots of the judges and it lends to a Better Exchange of work ideas and better work product, i say. What was different . Two stories. First, Justice Stevens did exactly as you said. He would sort of go into his chambers or his office and produce a writing. Justice brennan never did anything on paper. He would just sit for hours. It was called coffee with brennan. You go in at 8 30 in the morning, coffee with brennan could last to 1 30 in the afternoon. Every time you sat down to write something, you had talked it through with him so much that he was you know, you are just holding the pen. And once i was working on an opinion for Justice Stevens but i was sitting at coffee with brennan. He was writing the other side of that case. And it came up and i said, justice brennan, i should leave the room because i am working on the other side for Justice Stevens. He said, no, sit down, i want john to know exactly what i think. You know, this was valuable. This also shows the confidence of a justice who has been there a long time. On the other hand, Justice Stevens once handed me an opinion, a draft, and it was not it was an obscure. He said i think this is pretty good but you could work on the footnotes. Which i thought was a pretty clear signal. So they were different. But i dont think they were different in how they treated their clerks. I dont know anybody who clerked for brennan nor stevens who has anything but good things to say. You will hear from judge wood later. Justice blackmon was the opposite. Everything was done on paper. And the poor blackmon clerks would produce 35page bench memos. The brennan clerks would sit around and have coffee and maybe that was reflective of the work product. I dont know. Anyway. So, jane, you clerked for two justices who i think it is fair to say have somewhat different juris prudential views. Talk a about sort of what its like as a law clerk when you are clerking for a justice and you might have a different reaction to a particular case, say. Sure. I get this question a lot. I imagine you probably do. But i actually think the experiences to me were more similar than dissimilar. My job was pretty much the same. And the justices were interested in pretty much the same thing. So for each case they wanted a bench memo, just sort of a fairly lengthy bench memo. Gorsuch on lets talk it through, a short memo, and extremely long discussion with it with the clerks in the room where everyone was sort of piping in. They were interested in what does the law say. One was maybe more interested what does history say, one less so. Thats a little bit in the details. And so the process of doing the bench memos, talking with the justices, creating the opinions, it looked very similar. I would say that in terms of, you know, how would i feel if i differed with a u. S. Jis, which happened with both justices, you know, i think i would Say Something that justice gore up to divorcich said Justice White told him when he clerked for him, no one appointed me and i wasnt confirmed by the senate. At the end of the day it was not my job to push my juris prudential view or view of the case. I recall in particular one case with a skruz where i disagreed quite strongly and we talked about it for weeks on end and at the end of the day the justice said thank you very much, i appreciate your views. I have made my decision and we just disagree. And then i went and i went around to every chambers and tried my best to bget other chambers to agree to that justices view because that was my job. And so it didnt make it difficult for me to work with two justices from, you know, socalled through what some might perceive as different ends of the spectrum. And the other thing i would say is that i think that the differences between the justices are often exaggerated in the media just as generally and, you know, we shouldnt forget 40 of cases are decided unanimously. These are the hardest cases in our entire judicial system. Nine justices. I mean, i cant agree on like coffee with like my four board members. So tune justices are coming together unanimously in 40 of the case. That figure remains essentially consistent for the last 100 years. The number of 54 cases i think this past term was maybe 18. But most of those were not the 54 we think of. The 54 that folks think of is just a handful. So i think the differences are often exaggerated and the similarities should be looked arizona well. Personality wise, what rory said about his justices, both Justice Gorsuch and Justice Sotomayor treat their clerks the same. They both call them their clerk family. Justice sotomayor routinely fish yates weddings. She did my wedding. Justice gorsuch has folks over. They will sleep over, come to christmas, thankisgiving, if thy are not flying them see their families. They are fundamentally very good people and treat their clerks well and they get along great, too. Let me ask a little bit about the role of the law clerk because i think there has been a lot of writing with some criticizing the law clerk system for giving law clerks disproportionate power and responsibility. After spending a year , more thn a year at the court, what is your reaction to that . Anyone can weigh in on this. My view may be a little bit colored by who i worked for, but i dont think it was we were ever under any illusions at any point during the year about the extent of our power and it was not great. There was really, you know, sort of no doubt that Justice Stevens, you know, who is such an independent thinker in so many ways, was going to make up his own mind and decisions. As i said, he was already a very experienced judge by the time i clerked for him. I think part of the value of the clerkship from his perspective was really just, you know, i think we tend to forget when we are in the outside world that really conversations about these very difficult cases are confined to a very small number of people. A judge can really only talk about these difficult issues with this set of people who work in their chambers. And so for Justice Stevens, i think as for his colleagues, the clerks fulfilled this role of sort of being a sounding board for just sort of thinking through these difficult issues, for sort of running down the loose threads and the doctrine as it has developed over time. But i dont think there is really any doubt that at the end of the day the decisions belonged to the justices and the just uses alone. Let me just pull the veil away a little bit. I dont disagree with anything you said, but i think the reality th reali reality is that large clerks have a large impact on what i call the footnotes. The details. You are not changing decisions so much as you are and this is part of my sharing of law clerks idea. I can think of instances where i went running or whatever, had a cup of coffee with a justices clerk from another chambers that was opposed to the position of my justice. What about this one foot to note . Couldnt you just change that one thing . And maybe they would. Maybe they would say, yeah, we dont need that or, you are right, it has a harsh effect or something. Law clerks have an impact on the details, and the details often come back to haunt us later when we are reading the decisions or trying to apply them. And it seems to me, you know, in brennans chambers, nothing got out of the chambers until all four clerks had worked it over, even if you were the primary clerk. Everybody worked it over. With just us stevens it was a oneonone dialogue. Of course, he was a really smart lawyer. It seemed to me the wider the discussion was, the wider the range was, the better the work product was. So im just going to throw that idea out there that law clerks matter and collegiality matters. What about the fact that a lot of the communication that takes place within the Court Takes Place between law clerks . I mean, not always. Justice oconnor preferred for her law clerks not to talk to other law clerks, at least about her views. So there were, you know, i think a wide range of views among the justices about that. There is no doubt that lot of the decisionmaking process flows indirectly through the law clerks. Is that a good thing . I never got the perception that the fact that so much communication happened between the law clerks, which as a parenthetical surprised me when i came there. I dont think that gave power to law clerks to affect the outcome of the cases one way or the other. What i am saying, one of the areas that law clerks have disproportionate power is in deciding what courses the court takes because of the sheer volume of sort of petitions that are filed. You have two processes. The cert pool that i think is seven of the nine justices participate in and two justices that have their chambers review all of the cert petitions that come in. So in the cert pool, you know, there were occasions when i recall coming upon a memo that would have been writ bin someone it was pretty short and totally in good faith short, but it really took sort of me going and pulling the original papers to bring it to the justice and have it sort of filter out. And so the cert pool. And then in the chambers that dont participate in the cert pool, i think the justices rely on the clerks to really flag the cert petitions that the justice should look at. That is one area where i think there is some discussion around sort of whether or not clerks have disproportionate power. I think there is a study by david stra u. S. S. In disassociating the fact that law clerks recommend, deny virtually in every case. I think that i agree that its really at the cert pool where the clerks have the most influence. As far as the opinions go, Justice Kennedy really marked up things very heavily, and the only thing i can say for sure is that out of an entire term, and i drafted two opinions for him, i only know of one word that i really think thats because of me. Thats because i took three semesters of college math, one word is in the u. S. Reports, and i wont even tell you what it is. But it is math related. But thats one thing. Even though there is popular impression or there was a popular impression that Justice Kennedy had no backbone and he was putty in the hands of his law clerks, you know, that is not at all the experience that i had. You know, he would take, you know, he would do things with opinions that, you know, all four of his clerks would say dont do it, dont organize it that way, and it went out organized that way. So it was definitely his work product. And i will say this. You know, about law clerks effecting the footnotes. Justice kennedy never used footnotes. He gave up after a certain point. There would periodically be a footnotesized addendum to the opinion, but there were never footnotes. Its funny you say your contribution was one word. I wrote an entire tribute to Justice Scalia, the gist of what my contribution as a law clerk was a single word, single opinion am i wont get into that either. We have ten minutes left. One other big topic. And i dont want to trespass the jurisdiction of the next panel or jeff is going to come down on me. The next panel is on life after clerking. I want to ask a question about the Supreme Court clerkship more squenlly, which is do we attach too much importance to the Supreme Court clerkship . Does it have disproportionate cache in our profession . The argument in favor of that is the last three Supreme Court justices to join the court were themselves Supreme Court law clerks. Thats a relatively new trend. An ever larger number of the judges appointed to lower courts are former Supreme Court clerks. The bonus for Supreme Court clerks at most major law firms is now 400,000, which is several times larger than for arguably equally qualified folks who clerk on courts of appeals and it is very sadly many, many times larger than the bonus that i got as a law clerk. Coming off the experience 20 years ago. So, you know, its one year in a lawyers career. Do we attach too much significance to it . Yes. No bonuses when i was there, by the way. You could have collected like 2 million. You could have gotten one bonus for each of your many clerkships. You know, i missed my chance. So, i mean, yes. Do i think that Supreme Court clerks are untalented . No. And i think that hiring somebody who has clerked at the court gives you a certain inside, a perspective and likely somebody who is a very talented lawyer. But there is certainly a ton of people who amazingly talented, who didnt clerk there. I wont name names, but i do know one professor at yale who never got a clerkship and i think his incredible influential scholarship is a result of him feeling i am going to prove to them that i should have. And he is probably one of the most inflew edges al scholars in the United States today on certain subjects. So i say yes. But does that mean law firms shouldnt try to hire no, its understandable why they do. I dont like the selling of clerks to clients. You should hire us because here is a clerk for justice x, without, you know, im of counsel at a big law firm and occasionally have been trotted out as part of a team just to sell to the client, and that makes me uncomfortable personally. Anybody else . I agree. I mean, this is kind of corollary to my point previously that there are a lot of people who could do this job. I dont think there is you know, i know Supreme Court clerks who are not very good lawyers and who are not very good writers, too, for that matter, and i know plenty of people who were who are Supreme Court clerks who are vastly more talented. I think its a very inexact fit. But, you know, on the whole, there are tremendously talented lot. And, you know, if i think the odds are pretty good that they are a candidate and this is why they command such a premium, because there has been a difficult screening process to get them to that point. Some are incredible. We hired two Supreme Court clerks this year, and like one of them i was so impressed. She got through a great prize at harvard in like eight classes. I thought thats good. Then the next one had 15. And i thought, boy, they are both a lot smarter than me. And one thing i think is kind of funny. There is a person, another clerk for Justice Kennedy who likes to joke that the two people who Justice Kennedy hired with the worst grades were me and brett kavanaugh. But its good company. And one thing that has been really noticeable, and jane maybe this is a question for you, is that it seems as it if more and more people are now doing the Supreme Court clerkship a little bit later in their careers. It used to be that you would graduate from law school, do a first clerkship and go immediately to the Supreme Court. Now thats almost unheard of. So does that reflect anything about the clerkship, the changing nature of the clerkship . From my personal experience with my two justices it was their preference. So Justice Sotomayor preferred people who had worked in the real world. I think both a kpcomponent of wt Justice Krueger was talking about, the ability to have more people speak to who you are both as a person, as a lawyer, and then i think there was just another component, which is she wanted people who had been in the real world. And then Justice Gorsuch, we have a joke on the committee that at some point we are going to run out of professors who want to clerk for him. He is cycling through sort of old law clerks, professors. So he also prefers that. And so i dont know if i could pinpoint sort of a broader trend, but it seems as though the justices are increasingly prefer folks with a little bit more experience, which in my mind makes sense. I mean, you want folks who are inexperienced enough not to be set in their ways or to have egos that are too large, but sort of experienced enough to bring more to the table i think. That raises a question about kind of the metaphysical purpose of a Supreme Court clerkship. In the early days it felt as though it was almost an apprenticeship, right . An opportunity for somebody fresh out of law school to kind of do this as very much a First Experience in their careers. Now not surprisingly it seems like the justices, you know, think the more experience, the better, right . These people are helping them with their jobs. If you are choosing somebody fresh out of law school who never litigated a case and somebody with years of experience in government or a law firm, you would ordinarily choose candidate number two. Your views on this as a law clerk higher . Also, i actually my Chamber Staff is composed of permanent law clerks, which the Supreme Court does not have. I have two of those and i have three annual law clerks. To my mind, its sort of i lived experience of sort of the best of both of these models. I think there is real value to having experienced clerks who, you know, are deeply platform with the body of jurisprudence that is coming up repeatedly in the cases, who have the institutional memory. It is helpful. Its health for the institution to have people come in who arent deeply steeped in a particular way of thinking about how the law works and who are sort of willing to do the background work and have sort of the curiosity and drive to p figure out when these questions come up as to which there srarer answers or which different judges across the country have disagreed. How have we gotten here . What are sort of the threads of the law that started to disentangle and how do we think about these questions as a matter of First Principles to figure out how the law should develop Going Forward . I think there is a lot to be said forri having a little bit outsider sort of fresh perspective in the mix in taking on that task. Yeah, you know, its a bit of a specialists job. And so i think Justice Sotomayors idea that you should hire people not who have done three clerkships, but who have worked in the world is a very healthy idea. But if you think about it. Somebody who clerked three times, i mean, this is a weird job. You have to not want publicity for yourself. You have to want to be bound by a strict confidentiality rule. You have to want to go to the library and read briefs and research and write and not be actively involved. You only see five or six people, maybe your coclerks with other chambers. Maybe people that are successful in two clerkships are better at this specialized job, but, boy, i dont know a lawyer who doesnt feel badly about something they did in their first couple of years out of law school. And those are people who are now handling some of the most important social cases in the and the Supreme Court is our problem solver. They granted on a certain Abortion Case this morning. Thats going to affect a lot of lives. So im with jouustice sotomayor. Its a Health Practice to hire people who have done Something Else. I dont think three clerkships are the most Something Else i am interest interesting in looking at. John, the final word on this question and on the panel. Whats the one word . You can even have more than one. Well treat this like a Supreme Court advocacy. You can have the final two minutes without interruption. So i turned 30 on the first monday in october the year i clerkd and i was relatively experienced. Two years at the jujustice depa and Justice Kennedy would say lets hear what the member from doj has to say. And i think that there is a lot of benefit to have some experience practicing. I think that my years at doj were more beneficial than my time spent clerking. But i do think that there is a virtue in getting people who are still junior enough to be terrified because i think a very important thing is to be worried enough about screwing up that you are extremely careful about, you know, running down things like potential for mootness and vehicle problems in cases and things like that. And i think there is kind of a sweetspot for doing the clerkship where you have a little bit of experience, but you are still willing to work like an insect to make sure that everything is done correctly. You can make enough scree ups even if you are working that hard. Wrj great. With that what a wonderful and collegial discussion. Please join me in thawing our distinguished panel is. I am led to believe that the next panel will start at 2 00. Now more from the George Washington law