Saturday, February 25, 2006


Justice Alito and his law clerks

Following up on the failed attempt to stop Judge Alito from becoming Justice Alito, some academics are now criticizing his choice of law clerks. One in particular has them worked up – Adam Ciongoli. Mr. Ciongoli is older than most clerks -37- , is a former clerk for Judge Alito and has a work history that probably wouldn’t get him a job interview with Howard Dean. A former aide to Attorney-General John Ashcroft, he is leaving a position as a lawyer at Time Warner to work for Justice Alito.

"It really indicates a lapse in judgment," Deborah L. Rhode, who teaches legal ethics at Stanford, said of Justice Alito's decision. "I just don't think it helps your reputation for nonpartisanship, particularly after such partisan confirmation hearings, to start out by hiring someone who is perceived to have an ideological agenda."

“He cannot work for the justice on any cases that come before the court if he worked on those matters at Time Warner or the government," said Stephen M. Gillers, who teaches legal ethics at New York University. "You don't want him to the judge the quality of his own work."
New Clerk for Alito Has a Long Paper Trail - New York Times

As an aside, being lectured about nonpartisanship by Professor Rhode is simply laughable. And the basis for Professor Gillers’ assertion that Adam Ciongoli can’t work on certain matters is probably just Professor Gillers. Tim Wu, a professor at Columbia Law, isn’t quite as critical as his colleagues but I think he leaves the door open to join them:

“None of this should be exaggerated. Justice Alito has hired trusted former clerks, and his choices are only for this term. Hopefully, the practice of hiring political staffers for clerks will end there. And there is some comfort in knowing that most of the rest of the justices—including the new chief justice—are still hiring the old way: finding nerdy clerks with little political experience, whose fantasies include someday fashioning a better-working ERISA statute.” Clerk-Off - Are law clerks staffers? By Tim Wu

Left unsaid is just why a recent law school graduate with little work experience is preferable to someone like Mr. Ciongoli. Practical considerations probably enforce such a preference (as I am quite sure Mr. Ciongoli’s decision to work for Justice Alito was not a financial one.) but that doesn’t make it ideal.

Cynically, I believe the professors concerns are of a more practical nature. Currently, a potential law clerk’s biggest asset toward obtaining a prestigious clerkship is her law school’s name. That’s why clerkships are overrun with graduates of, among others, Stanford, NYU and Columbia. Should a person’s post-school experience start weighing more heavily in the hiring process, what will that do for the influence of such ideological monoliths as say, Stanford, NYU and Columbia?

More comments at Concurring Opinions: Law Clerk Disqualification
SCOTUSblog has also been linking on this subject.

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