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Relevance of Kagan's work as clerk on Supreme Court debated

By ROBERT BARNES
Washington Post Staff Writer
Monday, June 14, 2010; A15

Solicitor General Elena Kagan's membership in an exclusive club is causing trouble for her Supreme Court nomination. But that is unlikely to defer future applicants.

Kagan is part of a vast network of lawyers of all political persuasions who clerked for a Supreme Court justice. It is a group that grows by about 40 lawyers every year and plays an increasing role in the workings of the court -- as practitioners, analysts and law professors whose work centers on the institution.

"You never get over it," said Pamela S. Karlan, who clerked for then-Justice Harry A. Blackmun and now regularly argues before the court. She is co-director of Stanford Law School's Supreme Court Litigation Clinic.

If Kagan is confirmed by the Senate, she will become only the sixth Supreme Court justice to have worked there as a clerk. But she also is a sign of the times.

Three of the five justices who clerked are on the current court. Three of the four finalists President Obama interviewed this spring shared the credential. And the two people who preceded Kagan as solicitor general -- the government's top appellate lawyer and representative at the Supreme Court -- were former clerks.

It is a somewhat mythologized job -- books and articles about clerks have characterized them as "sorcerers' apprentices" and "courtiers of the marble palace." One thing all agree on is that it is a gold-plated addition to a legal curriculum vitae, a "recession-proof credential," according to one practitioner. Top law firms have paid signing bonuses of up to $250,000 to secure a clerk's service after the one-year term ends.

The nomination of Kagan, who clerked for the liberal icon Justice Thurgood Marshall for the 1987-88 term, has put a new focus on exactly what clerks do for justices and whether it is possible to divine their own legal thinking in the memos they prepared. No such documentation was available at the time of confirmation hearings for the current justices who were clerks -- John Paul Stevens, Stephen G. Breyer and John G. Roberts Jr. (The other two former clerks were William H. Rehnquist and Byron R. White.)

Kagan, 50, has played down the role her opinions had in Marshall's work that year. During her confirmation hearings as solicitor general, Kagan called herself a "27-year-old pipsqueak" working for an "80-year-old giant in the law."

Kagan said her memos to Marshall about whether the court should accept a case -- each year, it accepts a small fraction out of the thousands of petitions it reviews -- reflected what she and fellow clerks thought the justice would have wanted. Marshall was a member of a dwindling liberal presence on the court at the time.

"I think all of us were right to say, 'Here are the cases which the court is likely to do good things with from your perspective, and here are the ones where they're not,' " Kagan told the Senate Judiciary Committee in 2009.

The committee's ranking Republican, Sen. Jeff Sessions of Alabama, thinks Kagan is being too modest. He points to memos in which she told Marshall that accepting a case could provide an opening for conservatives on the court to "create some very bad law on abortion and/or prisoners' rights." About a gun owner's plea for Second Amendment rights, Kagan reflected the status of the law at the time and said, "I'm not sympathetic."

"From issues such as guns to abortion to crime control, Kagan's memos unambiguously express a leftist philosophy and an approach to the law that seems more concerned with achieving a desired social result than fairly following the Constitution," Sessions said.

But Eugene Volokh, a law professor at UCLA and former clerk for Justice Sandra Day O'Connor, said strategic decisions about whether to accept cases are often made by both liberal and conservative justices, since it takes only four of the nine to accept a case.

"Justice Marshall's job was to decide whether to grant certiorari based on whether the court's decision was likely to clarify or improve the law," Volokh wrote recently. Kagan's job "was to give Justice Marshall advice based on whether the court's decision was likely to clarify or improve the law from Justice Marshall's perspective."

Former solicitor general Paul D. Clement, who clerked for Justice Antonin Scalia in 1993-94, agreed. "There's no reason to believe Elena Kagan wasn't in tune with Marshall, but if you're doing the job right, you're also doing what the justice asked you to."

Although there are exceptions to the rule, the most telling thing about a clerk is who he or she worked for, said Pamela Harris, director of the Georgetown Law Center's Supreme Court Institute, who clerked for Stevens in 1992-93. It is protocol for prospective clerks to apply to all nine justices, but the sorting process used by each member of the court usually identifies kindred spirits, she said.

Kagan's memos to Marshall, she said, "sure sounds like she's writing in her own voice. . . . Most [clerks and justices] are a happy match."

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