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Supreme Court Clerks Form Elite Group

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Supreme Court Clerks Form Elite Group

Law

Supreme Court Clerks Form Elite Group

Supreme Court Clerks Form Elite Group

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Michele Norris talks with Supreme Court historian David Garrow, a professor of law at Emory University Law School, about Supreme Court clerks. Justices choose up to four young lawyers each year to help choose cases and sometimes write opinion drafts. Garrow says the result is an elite alumni of lawyers — a growing number of whom, he says, are conservative.

MICHELE NORRIS, host:

If John Roberts is confirmed, he will be in a position to hire his own clerks. And since Roberts, at age 50, is a relatively young man, he could potentially mentor future generations of young lawyers. Consider the math: Four clerk positions a year multiplied by, say, three decades equals a career springboard for 120 legal eagles. David Garrow is a Supreme Court historian and professor at Emory University Law School. He's written extensively on the role of clerks at the Supreme Court, and he says the clerks chosen by the justices have helped to remake the legal landscape.

Professor DAVID GARROW (Emory University Law School): The conservative network that has grown up starting with Chief Justice Rehnquist back in the 1970s, that has been so strengthened by Justice Thomas, Justice Scalia, in significant part, also Justice Kennedy--they have given opportunities to young clerks who come to them from well-known, conservative appeals judges. And it's the size of this population that has so transformed much of the academic conversation about American constitutional law and the Supreme Court.

NORRIS: Professor Garrow, you noted that there is a dearth of women and minorities who serve as clerks at the Supreme Court. And some are disappointed that President Bush did not appoint a woman, and many in the Latino community were hoping to see one of their own serve on the court. Historically, what's been the impact on the hiring of clerks when a new class sort of enters the Supreme Court?

Prof. GARROW: The Supreme Court's history over the past 40 or 50 years with regard to clerk hiring is actually somewhat surprising. Some of the most liberal justices--for example William Brennan--actually had extremely weak records with, for example, hiring women clerks. Now Thurgood Marshall, much as one might suspect, did take the lead in hiring clerks of color. But perhaps the most notable justice in pushing upwards the representation of female clerks was Harry Blackmun.

But what one also sees, particularly with Justice Thomas, for example, is that when African-American, Asian-American clerks are hired at the court, oftentimes, those individuals are just as conservative, if not more conservative, than the white women or white young men. And so the real challenge that faces the justices is not so much achieving gender or ethnic diversity as achieving intellectual and ideological diversity.

NORRIS: You've looked at the role that clerks have played on the Supreme Court, and I'm wondering if there's an example of a justice who's left an especially large imprint on the legal community based on the clerks that he or she hired and mentored over time.

Prof. GARROW: If we look back in American legal history, the certain answer to that question is Felix Frankfurter, who was originally a lefty liberal Harvard law professor in the 1920s, but over time came to really define conservative judicial restraint in the 1950s and early 1960s. Justice Frankfurter developed around him an intellectual network of first-rate minds, virtually all of whom believed in an ideal of judicial restraint. And that network that Justice Frankfurter put together supplied a major voice in American legal thinking for over a quarter-century.

NORRIS: David Garrow, thanks so much for talking to us.

Prof. GARROW: Thank you.

NORRIS: David Garrow is a Supreme Court historian and professor of law at Emory University Law School.

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