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Why Congress Shouldn’t Subpoena Judge Alito’s Clerks.

Dave Hoffman

Dave Hoffman is the Murray Shusterman Professor of Transactional and Business Law at Temple Law School. He specializes in law and psychology, contracts, and quantitative analysis of civil procedure. He currently teaches contracts, civil procedure, corporations, and law and economics.

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9 Responses

  1. Mike says:

    “[T]he claim of confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in…decisionmaking.”)

    If judges simply apply the law to the facts, then what interest does confidentiality serve? There facts are part of the public record, and no cites outside this record are allowed. Opinions are public record. Thus, an honest judge need only to neutrally apply publicly available law to publicly available facts.

    If all judges are doing is applying the law to the facts, then why the need for secrecy? What public interest is served by this privilege.

    But if, as the Vanity Fair article on Bush v. Gore suggests, something else is taking place, then secrecy is needed. But what public interest does that serve? Helping us believe noble lies?

  2. anon says:

    What about an attorney-client privilege, given that the clerk will often be an attorney licensed in the relevant jurisdiction?

  3. SCOTUSblog says:

    Blog Round-Up – Thursday, November 3rd

    In nomination news: Here is Judge Alito’s student Note from the Yale Law Journal. The Note analyzes the Supreme Court’s decisions in the so-called “release time” cases. These cases dealt with the question of whether public schools violate the Est…

  4. John Cowan says:

    If judges simply apply the law to the facts…

    They don’t. Mechanical jurisprudence has been discredited for almost a century. If judges merely applied law to the facts, we wouldn’t need them. What judges do (surprise!) is to apply judgment. Constrained and trained judgement, certainly, but judgement nevertheless.

    Anon, supposing that a judge is a client of his clerk is preposterous.

  5. OUPblog says:

    How to Improve Judicial Confirmations

    by Richard Davis, author of Electing Justice: Fixing the Supreme Court Nomination Process (Originally published in the Nov. 3 edition of Roll Call) For the third time in less than four months, the Senate is preparing for another Supreme Court

  6. Craig Green says:

    This from

    In a Senate floor speech delivered on December 20, 1995 (Congressional Record at S18972) Senator Fred Thompson said:

    [A]n invocation of the attorney-client privilege is not binding on Congress. It is well established that in exercising its constitutional investigatory powers, Congress possesses discretionary control over witnesses’ claims of privilege. It is also undisputed that Congress can exercise its discretion completely without regard to the approach that courts might take with respect to that same claim. …The Senate … has rejected invocations of attorney-client privilege on numerous occasions.

  7. Craig Green says:

    And, lest one unduly trust a Senator-turned-D.A., this from the Legal Times (

    Is there no government privilege for purposes of congressional subpoenas? Although Congress is not responsible for prosecuting individual criminal acts, its legislative responsibilities are, in many respects, far more important to the public than the resolution of a single criminal matter. Since generally the attorney-client privilege has been as applicable to congressional hearings as to grand jury and judicial proceedings–that is, Congress in practice (if not in theory) has respected the privilege–does the Lindsey reasoning render the government privilege permeable to congressional subpoenas, regardless of whether criminal activity is being examined?

  8. IPTAblog says:

    Blawg Review #31

    Welcome to Blawg Review #31, the weekly guide to the best posts in the legal blog world. This week, Blawg Review will fall in love, geek out, go online, get some useful advice and maybe even engage in some light…

  9. IPTAblog says:

    Blawg Review #31

    Welcome to Blawg Review #31, the weekly guide to the best posts in the legal blog world. This week, Blawg Review will fall in love, geek out, go online, get some useful advice and maybe even engage in some light…

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