Sunday, February 19, 2006

New Clerk for Alito Has a Long Paper Trail - New York Times

That's the headline for this NY Times article:
JUSTICE SAMUEL A. ALITO JR., who was so bland and self-effacing at his Supreme Court confirmation hearings last month, made a bold decision on arriving at the court. He hired Adam G. Ciongoli, a former top aide to Attorney General John Ashcroft and an architect of the Bush administration's legal strategy after the Sept. 11, 2001, attacks, to be one of his law clerks.

* * *
"We don't normally contemplate a high-level Justice Department official becoming a Supreme Court clerk," said Ronald D. Rotunda, a specialist in legal ethics at George Mason University School of Law. "It's just asking for problems that are unnecessary." Most Supreme Court law clerks, who prepare memorandums and draft decisions for the justices, have little of note on their résumés beyond superior grades at a top law school and a clerkship with a federal appeals court judge.

"They're like legal Doogie Howsers — child prodigies of the law," said David Lat, a former federal prosecutor whose blog "Underneath Their Robes" reports on the hiring of Supreme Court clerks. "Yet they're influencing decisions that affect millions."

Mr. Ciongoli, 37, represents a different model. He has a rich and public history in government and, most recently, as a senior lawyer at Time Warner.

"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."
I don't think anyone can honestly claim that Alito's choice of Ciongoli is a sign of partisanship. New Justices almost always hire a mix of former Supreme Court clerks and their own former clerks, as was the case with Justices Ginsburg and Breyer, as well as Chief Justice Roberts.

Justice Thomas also hired several of his former clerks in his first year on the Court, including Arnon Siegel, Gregory Katsas, and Chris Landau, who clerked for Thomas on the D.C. Circuit, clerked for Scalia, and then for Thomas again on the Supreme Court.

And going back to Justice Scalia's first year on the Court (1986-87), he hired three of his own clerks from the D.C. Circuit: Patrick Schiltz, Lee Liberman Otis, and Gary Lawson.

Compare Prof. Rhode's opinion to Steven Lubet's:
In all, Justice Alito's decision to hire Mr. Ciongoli was smart, said Steven Lubet, who teaches legal ethics at Northwestern. "Somebody with some real experience can provide better work than someone who's green," Professor Lubet said. "It's a terrific idea."
Lubet describes himself as a "political liberal," and can often be found criticizing Republican-nominated judges. Yet here, and elsewhere, Prof. Rhode seems eager to accuse Alito of ethical lapses where Prof. Lubet sees no problem.


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