Sure, some Supreme Court clerks represent the cream of the crop in young legal talent: the all-star performers of the country’s top academic institutions girded by outstanding turns clerking for the nation’s most renowned appellate jurists. Bringing these standout performers into a law firm is more than worth the $400,000 bonus that’s become the standard.
But then there are the clerks who presumably helped Justice Kavanaugh write his bonkers concurrence in DNC v. Wisconsin Legislature.
Unsurprisingly, we were initially focused on Kavanaugh’s bizarre assertion that counting votes placed before election day after election day amounted to “changing” the result — a stupid claim for which he was properly chastised by Justice Kagan, who noted, “But there are no results to ‘flip’ until all valid votes are counted.” Literally no one issues a result on election day — networks make calls that night, but states don’t. But, as an Originalist, I’m sure Kavanaugh was remembering how they called the 1800 election at 9 Eastern and broadcast that by satellite to every state.
There are other mistakes of course. Mark Joseph Stern noted that Kavanaugh cited Bush v. Gore as unanimously decided — or more accurately he cited the holding that only 3 conservatives issued in Bush v. Gore as unanimous by wrongly attributing it to Bush v. Palm Beach County Canvassing Board. Kavanaugh was there working on this very case, so this is just pure disingenuousness. Similarly, Stern points out that Kavanaugh cited a bunch of shadow docket cases as historical precedent, which takes a lot of chutzpah or a broken research software account.
But Kavanaugh being a liar is something we’ve known since at least his confirmation hearings. That’s not news.
But one passage stuck out when I dug into the opinion more.
The States are aware of the risks described by Professor Pildes: “[L]ate-arriving ballots open up one of the greatest risks of what might, in our era of hyperpolarized political parties and existential politics, destabilize the election result. If the apparent winner the morning after the election ends up losing due to late-arriving ballots, charges of a rigged election could explode.” Pildes, How to Accommodate a Massive Surge in Absentee Voting, U. Chi. L. Rev. Online (June 26, 2020)
Now… that seemed weird, because Rick Pildes does not strike me as the kind of guy who would say we should throw out valid ballots. And it turns out he’s not!
We heard a whole lot about Kavanaugh’s clerks. Indeed, we heard them invoked in a disturbing fashion just today. But where were they on this one? Shouldn’t someone with passable critical reading skills been able to Inigo Montoya this one and tell the boss, “You keep quoting Professor Pildes, I don’t think he says what you think he does”?
But it actually gets so much worse. Tierney Sneed sat down with the rambling opinion and succinctly put it:
Indeed.
Like the citation to Merrill II for the proposition that district courts shouldn’t second-guess state legislatures. Except Merrill was about a district court striking down a state Secretary of State voting restriction because it wasn’t passed by the state legislature. It’s very much the opposite of what Kavanaugh is trying to support here.
Or, as Sneed notes, a random aside about how even socialist Vermont isn’t changing its voting rules because of the pandemic, despite the Vermont office expediting the distribution of mail-in ballots for the express purpose of expanding opportunities to vote.
These are “citing red flag cases” level fuck-ups. Especially when absolutely none of them are necessary cites. He didn’t need to quote Pildes for his inane suggestion that we should just never count the troops (who of course are among the most likely late-arriving ballots every election), and he didn’t need to add Merrill II to the string cite, and he didn’t need to throw in a Vermont reference to own the libs. Summer associates don’t make these mistakes, why are they happening at the Supreme Court?
The reason, friends, is the steady erosion of the federal clerkship under the Federalist Society’s watchful eye. Elite law students are already turning down clerkships with these judges and that just feeds a cycle of awarding prestigious clerkships to the law student who ordered the most Chick-fil-A for their club’s weekly “serious academic debate” about whether immigrant children should be kidnapped or just chemically castrated.
While there are specific conservative clerks who really are smart enough to be the next ABA Not-Qualified federal judge, the problem with the FedSoc-Industrial Complex is that ideologues are learning at the knees of ideologues that precedent doesn’t really matter. And that’s how you train a generation of conservative lawyers to muck up basic citation.
It’s also why firms are starting to wise up about jumping at the first clerkship they see. A partner told me a while back that they used to just jump at clerkships and now they have to take a second and say, “Wait, with who?”
Not that it matters for Kavanaugh’s clerks. They’ll all doubtless go to Jones Day on schedule.
Earlier: Donald Trump’s Devaluation Of The Federal Clerkship
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.