Law Clerk Disqualification
posted by Mike Dimino
There has been some to-do about this story concerning one of Justice Alito’s soon-to-be clerks. In brief, the article quotes some academics who have a problem with the selection of Mr. Ciongoli, who is a former clerk of then-Judge Alito and a former aid to then-Attorney General Ashcroft. The article reports that Ciongoli had a hand in creating “the Bush administration’s legal strategy after the Sept. 11, 2001 attacks.” As a result, some academics (Deborah Rhode is cited) question whether it is proper to have clerks who are perceived as “partisan” or who may be able to influence the way “his own work” is judged by the Court.
Stephen Gillers is quoted as saying that Ciongoli will likely be removed from working on cases that touch on his prior experience, as a way of mitigating the latter fear. I suspect that is in fact what will occur, but I don’t know that it should, or that if Alito were to ask for Ciongoli’s opinion he would be doing anything the least bit wrong. Is it unethical, for example, for a judge to ask for a clerk’s opinion on a case that was decided the prior year by the court on which the clerk was then working? Obviously the current practice (though not always the historical one) is for judges to recuse when they have participated on a case. (There have been many examples of Supreme Court Justices participating in cases interpreting laws they had a hand in drafting or implementing before assuming the Bench.) But isn’t the situation different when the only prior involvement is that of a clerk, and the judge would be able to evaluate his advice with a grain of salt?
I know of no statutory restrictions on the ability of clerks to participate in cases because of their prior experience. There is the danger of undue influence, but I think it is minimal, since (1) clerks see it as their job to advise their judges and not to deceive them or push for policy results, (2) judges retain the final decision, and (3) the chance that a judge’s opinion will be significantly different from his clerk’s is very small, at least as to an issue for which the clerk has developed a reputation.
I can see a large upside to allowing these clerks to participate in cases with which they are familiar. First, it eliminates a large amount of time that would be spent in gaining background information. Second, it is an inestimable advantage to have a clerk who has substantive experience in the field implicated by a particular case. Decisions are more likely to be correct and anticipate potential unintended consequences if the judge has the advice of someone who knows the field. Third, the prior experience is likely to alert the clerk to potential counter-arguments, so the involvement of the clerk may be as likely to fully inform the judge as to bias his understanding of the case.
All this is different, of course, from the situation where a clerk participates in a decision that may have an effect on the clerk’s future employment, for example if the clerk’s future firm is representing a party in the Court. If anything the problem is more severe in that circumstance, but there (to my knowledge) the involvement of the clerk is left completely within the judge’s discretion.
February 22, 2006 at 10:39 am
Posted in: Legal Ethics
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Responses (4)
Paul Horwitz - February 22, 2006 at 11:29 am
Mike, I’ve been writing on this at Prawfsblawg; see the comments there too. You say that you know of no statutory restrictions on the ability of clerks to participate in a case based on prior experience. I think this sweeps a little too broadly, although, to wax Clintonian, it depends on what you mean by “statutory.” Federal law clerks are subject to the Code of Conduct for Judicial Employees, which does speak to conflicts of interest, which include personal as well as financial conflicts. I should think that even if we set aside the obvious cases in which the clerk has an ongoing financial interest — and which are subject, besides the Code, to the rigors of criminal law — there may still be cases in which involvement in past work rises to the level of presenting a personal conflict. Another statutory hurdle, although I do not know that it would be implicated here, is the federal statute governing revolving door government employees. Not to say I’m entirely unsympathetic to your argument; but there is more of a regulatory thicket involved than you may initially have suggested. Cheers, Paul
John Steele - February 22, 2006 at 5:02 pm
Here’s the Federal Judicial Center’s pamphlet for law clerk ethics:
https://lawclerks.ao.uscourts.gov/ethics_for_lawclerks.pdf
SCOTUSblog - February 23, 2006 at 11:27 am
Blog Round-Up – Thursday, February 23rd
Here is yet another post on Justice Alito’s clerk hires, this one on Concurring Opinions. PrawfsBlawg also has this follow-up discussing Justice Brennan’s decision to to withdraw his offer of a clerkship to Michael Tigar in 1966. Here Election Law…
Maryland Conservatarian - February 23, 2006 at 2:51 pm
This is all much ado about nothing….but can we look at the propriety of so-called legal ethics experts continually harping on the same Justices?….That Deborah Rhode and Stephen Gillers are critical of Justice Alito (and, for that matter, CJ Roberts) is such a dog-bite-man occurrence. And never, when I read their ruminations on another supposed ethical mis-step, do I read the qualifiers about their ideological biases.
Now if Ms. Rhode were to say something nice about Justice Alito – now that would be a story
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