Junior Scribes of High Court
WASHINGTON — They are the top of the top 1 percent in law school. Ivy Leaguers, more often than not. Best grades. Best recommendations. Top guns of the emerging generation of legal minds. Constitutional Wunder-kinder, cocky and sure.
But as these 36 men and women begin their careers as US Supreme Court law clerks in the coming weeks, they face a task tougher than any they have seen. Clerking for a Supreme Court justice - the ripest plum for a law grad - is the legal equivalent of Marine basic training at Camp Lejeune.
During 80-hour work weeks, the clerks soon find out what they are made of, legally speaking. They will screen 7,500 petitions, compose 30-page memos on cases, write first drafts of rulings, advise the justices, and act as ambassadors among nine chambers that are often compared to nine different nation-states - all inside a hermetically sealed federal building where the work is shrouded in secrecy.
It's a load that prompts some court observers to ask: Do these 27-year-olds carry too much influence?
Many of those who have survived their clerkships feel the responsibility - keenly.
"Nothing prepares you for the first time you are presented with a case, and you realize it is just you," says Evan Caminker, who clerked for the late Justice William Brennan. "The justices are on vacation. You don't know anyone. You think you are going to be the first clerk who can't handle the job, or cracks, or gets fired."
Pound for pound, the 36 legal eagles, some of whom may never have held a job, arguably have more power than a senior congressional staffer. Congress creates legislation, but the court can determine how and whether a law may be enacted. While the nine justices are the ones who make the decisions, the reasoning and wording of the opinions - pored over for years to come by lawyers and judges - often are shaped by clerks.
So it would be these clerks - three or four to a justice - who plumb the Constitution and US law to determine if sexual harassment is a prosecutable offense, for example, or whether citizens have a "right to die" or women may have a legal abortion. Moreover, clerks receive all last-resort appeals from death row inmates.
How is a Supreme Court clerk chosen? What do they do? What influence do they have?
The answers are partly veiled. Chief Justice William Rehnquist tells the clerks in an orientation, if they didn't already know, contact with reporters is verboten. A reporter walking to the court on a bitter cold day once fell in step with a young clerk. They talked animatedly - until the reporter said who he was. With a brief apology, the clerk walked to the other side of the street.
Former clerks, however, shine some light into the clerk's world.
The chosen few
Clerkships are often secured by an "old boy network" of professors and judges - a method that many clerks defend as practical. Professors friendly with justices, many from Harvard or Yale, early identify star pupils. Clerks can be selected as early as their second year of law school these days, because of the hot competition. Clerk hopefuls apply to one or more justices, who have different systems for selection. They submit a transcript of grades, awards, activities, and a writing sample. But letters of recommendation are crucial - as is the final interview.
"If [Harvard law professor] Larry Tribe calls and says he's got the perfect candidate, that person has a good chance - partly because Tribe doesn't make many recommendations," one clerk intimated.
Then there are "superclerks." These hopefuls apply to some 20 well-known federal "feeder" judges, such as Michael Luttig of the Fourth Circuit Court of Appeals or Laurence Silberman of the influential Court of Appeals in Washington. The understanding is that some will later ascend to clerkships at the high court.
Some justices do their own selecting. Others farm the work to clerks or to a panel of former clerks, the method used by the late Thurgood Marshall. The final interview may deal with the law (Justice Sandra Day O'Connor's approach), but can be mainly a character assessment.
In a 45-minute interview with former Justice Harry Blackmun, ex-clerk Ed Lazarus was never asked a substantive question. Instead, Justice Blackmun asked about Mr. Lazarus's hobbies and family. Lazarus remembers at one point jumping on the justice's couch and juggling several balls, to show his pluck.
Justice Rehnquist was criticized this spring when it came to light he had never hired a black clerk. USA Today found that four current justices have never hired an African-American clerk. The justices now sitting on the high court have hired, in their tenures, a total of 394 clerks. Blacks and Hispanics make up 3 percent of those, and women are 1 in 4.
Court insiders say racism is not the reason for few minorities. Rather, they point to the narrow pool in which about 60 percent of clerks are from three schools: Harvard, Yale, and the University of Chicago.
"I truly don't think Rehnquist reflects animus to blacks," argues Michael Dorf, a former clerk to Justice Anthony Kennedy. "As a conservative, he's got more intellectual diversity among clerks than many of his liberal colleagues, like [Justice William] Brennan, had. The problem is that too few African-Americans graduate at the top of the small group of schools the court relies on."
For all his liberality and defense of minorities, Justice Brennan, for example, never hired a female clerk until the last two years he was on the court.
The ideal clerk can see through the dense outer layer of a case into the heart of the legal question involved, and examine it from several vantage points. Again and again, former clerks say the job requires not only legal skill, but also a willingness to defend a position if the justice challenges it.
"It takes gumption for a 27-year-old to be willing to argue with a justice," says Lazarus, whose book "Closed Chambers" about his year as a clerk has stirred anger in the US legal community for allegedly revealing court secrets. "But that is part of the job of an effective adviser. A justice needs more than a yes man."
Job for a year
Not all clerks are up to the task. Some have intellectual firepower but not the crucial attention to detail that is needed. And vice versa. But no clerk has ever been dismissed.
"You can't always tell," says Tom Goldstein, who tracks the court for the Washington law firm Boies and Shiller. "It's like trying to pick the most brilliant chemistry student in college and saying, 'That person is going to win the Nobel Prize.' You can't."
As the term progresses, the clerks each write about 150 five-page memos on prospective cases. They write 20 to 50 "bench memos," each 30 pages long, detailing for their own justice the issues in cases the court has taken. In the meantime, they handle death-penalty appeals and spend much time with clerks of other justices working out the final wording and reasoning of decisions.
Finally, in their crowning task, the clerks write the drafts of the final opinions - a process that requires far more investigation and concentration.
"As the term gets thicker, you have to clinch-it-out," says Lazarus. "You are trying to husband your time to draft the opinion that becomes the law of the land. If you don't churn out the paperwork, everything begins to get difficult."
Those who argue that clerks have little influence note that the justices decide their own votes, as well as outline the argument and legal precedents in meetings with their clerks. Mr. Caminker argues, however, that justices can have different reasons for voting yes or no on cases - and that these differences often are identified and sorted out among the clerks as one of them writes the first draft of an opinion.
"You have to figure out how to write the opinion that will hold a majority," says Caminker. "By the time you do, much of the initial reasoning is what comes out of your research."
Caminker says he didn't get his sea legs on the court until the first opinion he worked on was published. "After it came out, I waited with trepidation. After a few days you realize the world hasn't ended. The clocks keep ticking, and you begin to feel a part of the court."