Supreme Court Clerk Hiring Watch: The (Attorney) General's Daughter

The situation got resolved in the end, but it caused a temporary tempest on Twitter.

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If you don’t live your life on Twitter (which means you’re a wiser person than I am), then you missed out on quite a lot of drama—all over the subject of Supreme Court clerk hiring. Clerk hiring is typically an “inside baseball” topic for the readers of Original Jurisdiction, but every now and then it crosses over into the mainstream, as it did just now.

On Monday, Attorney General Merrick Garland was trending on Twitter—and not in a good way. Specifically, liberal and progressive Twitter (i.e., most of Twitter) was attacking the AG for declining to prosecute Wilbur Ross, Commerce Secretary under former President Donald Trump, despite a report from the Department of Justice’s inspector general indicating that Ross misled Congress about why he tried to add a citizenship question to the 2020 Census.

But on Tuesday morning, the Associated Press appended this (rather significant) correction to its story:

This story has been corrected to reflect that the decision not to prosecute Ross was made by the Department of Justice during the Trump administration, not the Biden administration.

So, in a nutshell, Merrick Garland was getting blamed for something that wasn’t his fault.1

A similar dynamic played out regarding the news that Justice Elena Kagan had hired Merrick Garland’s daughter, Jessica (Jessie) Garland, as a Supreme Court law clerk. Here’s how things unfolded.

I happened to confirm the news of Jessie Garland’s hiring on Monday, which is when I tweeted it out in a thread. As you can see from the numerous angry responses to my thread, this development didn’t sit well with her father’s many critics on Twitter, who were already incensed over the Wilbur Ross news. They raised a flurry of questions and objections related to actual or apparent conflicts of interest, the role of connections in clerkship hiring, and related subjects.

On Tuesday at around 6 p.m. (EDT), I received this very important clarification and update from Patricia McCabe, the new Public Information Officer at the Supreme Court:

Justice Kagan hired Jessica Garland as a law clerk in early July 2020, before President Biden’s election and Attorney General Garland’s appointment, to serve as a law clerk in 2022-2023. In light of the potential for actual or apparent conflicts of interest, Jessica Garland will not serve as a law clerk for Justice Kagan while Attorney General Garland remains in office.

At the time that I tweeted out the news of Jessie Garland’s hiring, I did not know she had been hired so long ago. In particular, I had no idea that she had been hired months before her father’s appointment as Attorney General—and months before President Biden’s election. I assumed, incorrectly, that it was a recent development.

The news of Jessie Garland’s hiring gave rise to quite the tempest on Twitter—and because of the way the platform works, it’s quite likely that more people will see the original (unintentionally misleading) news than the update, despite my attempts to push out the update in multiple ways. I apologize—to Justice Kagan, Attorney General Garland, Jessie Garland, and my readers and Twitter followers—for conveying an inaccurate impression of the situation. It was inadvertent on my part, but still very unfortunate.2

In the wake of the controversy, Justice Kagan and Jessie Garland came up with a very sensible solution to a situation that neither could have foreseen when Garland was hired one year ago. While it might have been possible to try and recuse or “wall off” Jessie Garland from working as a clerk on all cases involving the Justice Department, committing to not have Jessie Garland as a clerk as long as her father remains AG is a much cleaner solution. It will also make for a much better clerkship experience for both Garland and her co-clerks, given the number of SCOTUS cases where the DOJ is a party or amicus. [UPDATE (2:15 p.m.): See also this post by Professor Josh Blackman, who argues that such a recusal would have been difficult in practice. He concludes, “It makes sense that Justice Kagan postponed the clerkship, at least for the next several years. Jessica Garland will have a lot more fun when she has access to the full docket.”]

I was going to use this post as my overview of the October Term 2021 clerk class, now that I have all of their law school and prior clerkship information. But since the news intruded, as it sometimes does, I’ll save the color commentary and demographic analysis for a future post.

For now, I’ll just give you the full roster of OT 2021 clerks, which I’ve checked for accuracy against the Court’s official list, released earlier this month by the Public Information Office. Please note that this initial version of the Court’s official list doesn’t include law school and prior clerkship information; that information has been ferreted out by me, with the help of you, my wonderful readers.

But that info could contain errors, despite my best efforts. As recent events have made clear, I can really screw things up sometimes.

If you have corrections to any of the info appearing below, or if you have hiring news for a Term beyond OT 2021 that I have not yet reported, please reach out by email (davidlat@substack.com) or text (917-397-2751). Please make sure to include the words “SCOTUS Clerk Hiring” in your email or text message, perhaps as the subject line of your email or the first words of your text, to help me locate these tips in my inbox.

Also, in light of what just happened, I’d appreciate it if you can tell me when the hiring took place, if you know. As always, thanks in advance for all your help.

P.S. The title of this post is a reference to The General’s Daughter, a 1999 film directed by Simon West and starring John Travolta (for those of you too young to remember).

OCTOBER TERM 2021 SUPREME COURT CLERK HIRES
(as of July 21, 2021)

Chief Justice John G. Roberts
1. Sam Adkisson (Yale 2018/Katsas/Thapar)
2. Christina Kirkpatrick Gay (Chicago 2020/Grant)
3. Maxwell Gottschall (Harvard 2019/Srinivasan/Boasberg (D.D.C.))
4. Dennis Howe (Harvard 2018/Livingston/Friedrich (D.D.C.))

Justice Clarence Thomas
1. Christopher Goodnow (Harvard 2017/Sykes/Katsas)
2. Steve Lindsay (Yale 2017/Griffith/Bristow)
3. Scott Proctor (Harvard 2017/Sutton)
4. Manuel Valle (U. Chicago 2017/E. Jones/Larsen)

Hired by Justice Thomas for OT 2022: Bijan Aboutorabi (U. Chicago 2018/W. Pryor/Thapar) and Michael Corcoran (UVA 2017/J. Smith/Bibas).

Hired by Justice Thomas for a “a soon-to-be determined term”: Daniel Shapiro (Scalia 2018/Jolly/Rao).

Justice Stephen G. Breyer
1. Elizabeth Deutsch (Yale 2016/Pillard/Oetken (S.D.N.Y.))
2. Erika Hoglund (Stanford 2019/Thomas (9th Cir.)/Chhabria (N.D. Cal.))
3. Diana L. Kim (Yale 2017/Hall (D. Conn.)/Calabresi)
4. Joel Wacks (U. Chicago 2018/McKeown/C. Breyer (N.D. Cal.))

Justice Samuel Alito
1. Shelby Baird (Duke 2018/Hardiman)
2. Elliot Gaiser (U. Chicago 2016/E. Jones/Rao)
3. Eric Palmer (Yale 2017/W. Pryor)
4. Garrett West Jr. (Yale 2018/O’Scannlain/Griffith)

Justice Sonia Sotomayor
1. Whitney Brown (UCLA 2017/Christen/Liu (Cal.)/Calabresi)
2. Amit Jain (Yale 2018/D. Motz)
3. Katherine Munyan (Yale 2017/Rakoff (S.D.N.Y.)/Katzmann)
4. Kelley Schiffman (Yale 2018/Fletcher/Ellison (S.D. Tex.))

Justice Elena Kagan
1. Jennifer Fischell (Michigan 2016/Kethledge/Abrams (S.D.N.Y.))
2. Andra Lim (Stanford 2019/Friedland)
3. Christine Smith (Yale 2019/Griffith)
4. Andrew Waks (Chicago 2019/Feinerman (N.D. Ill.)/Tatel)

Hired by Justice Kagan for October Term 2022 (but clerkship subject to whether her father, Merrick Garland, is still Attorney General): Jessica Garland (Yale 2019/Barron/Engelmayer (S.D.N.Y.)).

Justice Neil M. Gorsuch
1. Stephanie Barclay (BYU 2011/N.R. Smith)
2. Louis Capozzi (Penn 2019/Scirica/Wilkinson)
3. Mark Storslee (Stanford 2015/O’Scannlain)
4. John Henry Thompson (Chicago 2018/Sykes/Griffith/Bristow)

Hired by Justice Gorsuch for October Term 2022: Kyle Grigel (Stanford 2019/Sutton/Bristow), David Suska (Chicago 2016/Easterbrook), and Lael Weinberger (Chicago 2018/Easterbrook).

Hired by Justice Gorsuch for October Term 2023: Josh Halpern (Harvard 2017/J. Smith/Millett/Bristow).

UPDATE (10:08 a.m.): Amended to note that Halpern was also a Bristow Fellow.

Justice Brett M. Kavanaugh
1. Alexa Baltes (Notre Dame 2017/Gruender/Barrett (7th Cir.))
2. Athie Livas (Yale 2019/Thapar/Friedrich (D.D.C.))
3. Jenna Pavelec (Yale 2017/Thapar/Kethledge)
4. Sarah Welch (Chicago 2019/Sutton/W. Pryor)

Hired by Justice Kavanaugh for October Term 2022: Emily Hall (Yale 2021 / Thapar), Isabel Marin (Harvard 2020/Collins/Millett), Cameron Pritchett (Harvard 2018/Edwards/Gallager (D. Md.)), and David Steinbach (Stanford 2019/Boasberg (D.D.C.)/Srinivasan).

Hired by Justice Kavanaugh for October Term 2023: Claire Rossell Cahill (Georgetown 2019/McFadden (D.D.C.)/Grant/Ambro), Thomas Hopson (Yale 2020/Katsas/Friedrich (D.D.C.)), Nicholaus Mills (Cornell 2019/Willett/Kovner (E.D.N.Y.)) and Avery Rasmussen (UVA 2021/Wilkinson/Friedrich (D.D.C.)).

Hired by Justice Kavanaugh for a future Term: Seanhenry VanDyke (Harvard 2021/Oldham).

Justice Amy Coney Barrett
1. Libby Stropko Baird (UVA 2019/Newsom/McFadden (D.D.C.))
2. Michael Heckmann (Chicago 2016/Marcus/Barrett (7th Cir.))
3. Max Schulman (Harvard 2017/Stein (S.D.N.Y.)/Katsas)
4. Zachary Tyree (GW 2017/Larsen/Sutton)

Hired by Justice Barrett for October Term 2022: Daniel Johnson (Harvard 2019/Richardson/Silberman).

Justice Anthony M. Kennedy (retired)
1. Elizabeth Nielson (Chicago 2019/Lee (Utah)/Sutton)

1

Of course, folks on the left are also angry with Merrick Garland for decisions he has actually made, as discussed in this CNN piece by Elie Honig (author of the just-released Hatchet Man: How Bill Barr Broke the Prosecutor's Code and Corrupted the Justice Department).

2

I’m generally not a fan of deleting tweets, which is often a self-serving practice by tweeters to erase their own mistakes. In this case, though, I did delete the original tweet, since it was going viral without the critical update. To preserve the record, though, I took a screenshot of the original tweet and pasted it later in the thread.

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