More of an Insider’s Look Behind the Curtain: An Interview with a Former
This is the second of a two-part interview with Erik Jaffe, a constitutional law expert and appellate attorney who clerked for Justice Clarence Thomas. (Read part 1 here.) Mr. Jaffe provides a behind-the-scenes view of clerking at the U.S. Supreme Court. Mr. Jaffe also spoke with the Center for Individual Freedom’s Senior Vice President and Corporate Counsel Renee Giachino about how changes in the membership of the Supreme Court will impact the Court and its clerks.
What follows are excerpts from the interview for the program “Your Turn — Meeting Nonsense with Common Sense” that aired on WEBY 1330 AM Northwest Florida’s Talk Radio.
[Editor’s Note: This interview occurred before the former Chief Justice William Rehnquist passed away and before the confirmation of his successor Chief Justice John Roberts.]
GIACHINO: Let me welcome back to the program attorney Erik Jaffe. He is a 1986 graduate of DartmouthCollege and a 1990 graduate of ColumbiaLawSchool. He clerked for then-Judge, now Chief Judge, Douglas Ginsburg of the U.S. Court of Appeals for the D.C. Circuit and then practiced in Washington, D.C., for one of the top notch firms there, Williams & Connolly, until he went on to clerk for Justice Clarence Thomas of the U.S. Supreme Court during the October 1996 Term. Now he runs a solo appellate practice out of Washington, D.C. He has been involved with over a dozen cases at the cert. stage before the U.S. Supreme Court, particularly cases dealing with the First Amendment.
I invited Erik back to the program to talk with us about what it is like behind the scenes at the U.S. Supreme Court, what it is like to have clerked at the U.S. Supreme Court and about the John Roberts nomination.
Thank you so much for joining us again.
JAFFE: My pleasure.
GIACHINO: We last spoke about a month ago, right before the President announced his nomination of John Roberts. Erik, please give us your thoughts on the nomination.
JAFFE: I think John Roberts is a phenomenal choice. I have been involved in cases where he has been on one side or the other — quite frankly, he was on the other side of me in a number of those cases and his work was superb, notwithstanding that I might have disagreed with the position that he was taking. I have seen him argue other cases that I was not involved in, and I thought that he was one of the finest advocates before the U.S. Supreme Court that I had ever seen. I think he certainly is extremely well-qualified to be a Supreme Court Justice.
GIACHINO: Then what is all the hubbub out there? Do you think that we would be hearing all this banter regardless of who the President nominated? Granted, it is dying down a little bit and I did read an article today that said that several key Democrats have come out and said that they do not plan to filibuster and that they do not plan on staging any sort of warfare on Roberts. Do you think that is true?
JAFFE: Certainly I believe that is true for a number of Democrats who believe that it is not productive to fight. I think others will continue to push against him and they are expected to vote against him. I don’t think that will be a lot of Senators.
All the hubbub to me seems precisely to be made over whoever President Bush nominated. Lest we forget that this is a political process. A political elected official nominates someone for the seat and a whole bunch of political officials decide whether or not to say “Yes.” One way or another it is a political process. And while there are certain historical examples of more or less deference to a President’s choice, at the end of the day the whole thing has to come back to what does the public think. If the public approves of tactics that sort of reject politicians on ideological grounds, I think then that that is the way it is going to be. If the public disapproves of that then presumably they will express that position at the polls or election polls the next time they come around.
It is nothing that shocks me. It is a little annoying to see some of the attacks that turn out to be dishonest, for example, the NARAL ad that was recently pulled. But for folks to stand up and say that they don’t like the way that his jurisprudence leads him to vote or may lead him to vote on certain hotly contested constitutional issues, that seems to be part of the discussion that we are having and probably should be having.
GIACHINO: On the issue of the discussion that we are having and should be having, how about his wife’s opinions, or rather I think it is the volunteer work that his wife has been doing? Do you think that is fair play?
JAFFE: I think that is a tad out of bounds, personally. The notion that spouses are somehow irretrievably bound to one another in the way they think as opposed simply to their personal commitments to each other to live their family life is a little archaic and even slightly insulting. I am not sure to whom it is insulting, but probably to both spouses. We should just accept the notion that spouses may agree or may disagree but given that it is not the spouse being nominated for the Supreme Court, one should focus on the candidate’s views and not the spouse’s views and take it on reasonably good judgment that the candidate will have his or her own views and be perfectly capable of disagreeing with his or her spouse.
GIACHINO: I wonder if we would be having the same discussion or if there would be the same scrutiny of the spouse’s activity if the candidate were Mary Matalin. Clearly her spouse has opposing views from hers. You are absolutely right that they don’t have to be wedded to the same views simply because they are married.
JAFFE: Right. That may certainly happen in some cases and not in others. The Mary Matalin example is a perfect example of that. It just strikes me that the amount that you learn about the candidate from what the candidate’s spouse may think is not terribly informative, and given the sort of insulting-ness and obnoxiousness of picking on someone who is not nominated to the public office, they should stick to stick to questioning the candidate and what the candidate himself or herself thinks.
GIACHINO: What about the attack that they have waged — and I think this is even dying down a little — on John Roberts’ alleged membership in the Federalist Society, a group that I have belonged to for many years and a group that you are very active in, what’s the big deal there?
JAFFE: Oh, it’s just monsters in the closet mostly trying to scare folks who don’t know what the Federalist Society is really about or who haven’t had a chance to look at it. It is sort of like trying to tar and feather people for being part of the ACLU. At the end of the day, I think that both the ACLU and the Federalist Society are diverse groups that may have a general tendency in one direction or another but in fact they are comprised of extremely diverse viewpoints of their members. The big difference between the ACLU and the Federalist Society is that the Federalist Society doesn’t take any position on substantive issues whereas the ACLU of course has lots of litigating positions.
I know plenty of libertarians, I know plenty of traditional conservatives on a lot of the hot button issues that I think people are concerned about. It strikes me that Federalists will violently disagree with each other on issues of religious liberties and free speech and even on some federalism issues — although that’s an issue that at least many Federalists tend to lean toward a more limited federal government.
The fight about that is just an attempt by people to sort of make it sound nefarious when in fact it is not. I have been a member of the Federalist Society for a long time and actually lead one of the free speech groups, and I can tell you that I have plenty of my own views on free speech and religion clause issues that I know lots of people in the membership disagree with me about — and lots of them don’t. That is the whole nature of a Society that puts on panels and asks for diversity to do educational functions that the Society is suited for.
GIACHINO: Erik, I was going to ask you this question the last time that you were on and I am going to just rephrase the question since we now know the President’s choice for a candidate. At one time I was looking at a short list of the possible candidates and I was going to ask you your opinion from that short list who you might have thought would get the nomination. I know the list included women, and a lot of people thought a woman would get the nomination because it is Sandra Day O’Connor who is retiring. Some people were out there saying that we needed another minority, perhaps an Hispanic candidate. Were you surprised that the President’s first candidate was John Roberts and not a woman or a minority?
JAFFE: “Surprised” is probably the wrong word. I suspect that like everyone else I thought that a desire to have a reasonably diverse Supreme Court would be a substantial factor in the decision. And it may well have been a substantial factor, it just may not have been the deciding factor. So I certainly always thought that John Roberts had an extremely strong chance of being the nominee as I thought the same thing of several other candidates. So, does it surprise me? No, not particularly. Does it create a political pressure to do something different with the next opening? Very possible.
What I think that it is important to understand is that once you get to the upper echelons of the legal world and the judicial world where people are very talented and they have sort of judicial philosophies that are consistent with the sitting President’s view of what the judicial philosophy should be, you still have a decent number of candidates in that pool and that within those candidates other factors certainly can come into play. Given that you have sort of everyone meeting the threshold of extremely bright, extremely qualified, good experience, then it’s things like gender and diversity that come into play. It seems to me that that’s a decision that falls within the political realm that I am not particularly qualified to talk about.
GIACHINO: Let’s turn the conversation now to something that you are particularly qualified to talk about and that is what it is like to clerk at the Supreme Court and what happens behind the scenes.
First, though, I want to ask you what happens with the departure of a Justice. From your perspective, as a Supreme Court expert, do you think that the departure of Sandra Day O’Connor will prompt someone else to move into that middle position? Someone perhaps like Justice Kennedy?
JAFFE: I don’t know that it will prompt someone like Justice Kennedy to move into that middle position. I think that over the last several years, and even before that, people watching Justice Kennedy have certainly understood that he is someone in that middle position anyway. While Justice O’Connor seems to get more of the limelight for being the “swing vote,” there are plenty of decisions that Justice Kennedy was just as equally straddling the camps. Certainly more recently we have seen a number of cases where he has taken the lead in doing unexpected things. So whether or not she will encourage him to do that more, I don’t think so. I think he is sort of finding his own way and sort of finding himself struggling on going back and forth on some issues and that is going to continue. It is just that the media may notice him more in that position perhaps rather than he will be pushed there by the departure of Justice O’Connor.
GIACHINO: Putting aside whether or not the President’s nomination of John Roberts gets through, let’s just assume that he is in place by the start of the next term on October 3rd. Do you think the departure of a Justice will in any way affect the next term? Is there sort of an adjustment period or are there any cases which will be impacted immediately by a departure?
JAFFE: There are certainly cases where Justice O’Connor’s departure could have a bearing. Depending, of course, on how the replacement ends up voting on the case. The parental notification issue that is going to come before the Court strikes me as something that could change depending on Justice O’Connor’s vote. While there has been more than one vote helping to sustain Roe, the issue on sort of the fringes of it — how much or how little peripheral regulation one can have — that is a closer call even as to Justices Kennedy and O’Connor. So where a prospective Justice falls on that is anyone’s guess and hence the results could change.
Similarly, it seems to me that there are potential affirmative action cases of that sort that could feel the effects. I think some campaign finance cases that are coming to the Court, particularly as the FEC starts to develop its approach to applying the McCain-Feingold law to let’s say Internet websites and blogs and things like that. That was of course a good chunk of the original McConnell decision on campaign finance that was 5-4. Whether a new Justice would go in a different direction remains to be seen. So, yes, there are certainly cases where a new Justice could have an immediate effect.
GIACHINO: Were there any cases that were carried over from the last term that were not decided?
JAFFE: Not that I am aware of.
GIACHINO: Let me ask you this: Having spent some time as you did — a year on One First Street clerking for Associate Justice Clarence Thomas — is there anything that you learned during your clerkship about what it would be like for a new Supreme Court Justice? Is there an adjustment period for that new Justice?
JAFFE: I think there has to be an adjustment period. One of the things that John Roberts has going for him certainly is that he has spent a very substantial portion of his career litigating at the Supreme Court. He is already very well aware of a broad range of issues that comes before that Court and he has argued a broad range of issues before that Court both in private practice and as a government attorney. So he has considerable breadth of experience.
One of the things that always struck me most about the Supreme Court is how the different issues that they face in seemingly disparate areas of the law really sort of echo and resound between each other more than you would have expected. I always thought of myself as somebody who could look at one area of the law and see how that had to do with another area of the law pretty easily. And when I got up there, one of the quick lessons that you learn is that as good a vision as you think you have, the Justices have a much broader and sophisticated vision than you do no matter how smart you think you are. And that is something that I think might take a while for a new Justice to sort of come to grips with. Many of these Justices have been there and been together for such a long period of time that they really know the ebb and flow of arguments back and forth across different areas of the law and how something said in the voting regulations context can turn around and change something else in the Longshoremen’s Act case. And that kind of interaction takes a while to get your arms around as a new Justice.
GIACHINO: But let’s not discount the fact that in addition to spending a lot of time before the Supreme Court, John Roberts also clerked at the Supreme Court so he will have a little bit of the benefit of having had his eyes opened to the interplay that you talked about.
JAFFE: Absolutely. I think that he is in as good a position, if not a better position, than virtually anyone to hit the ground running and attack that learning curve very well, particularly because he had that experience as a clerk, as a deputy solicitor general, as one of top appellate litigators in the country who worked on many, many cases, and as an advisor in the White House staff counsel office. These are areas that give you the exposure to some of the range of issues that are likely to come before the Court, particularly cases involving the government.
So, absolutely, he will have a leg up on the process. But I suspect that having a leg up and having to actually be the one making the decision and worrying about whether some footnote that you include somehow messes up some case two years from now, that just takes time to really get used to.
GIACHINO: I want to shift the conversation now to talk about the clerks and what it is like to have clerked at the Supreme Court. Let me segway by asking this: Who will a new Justice hire as his or her clerks?
JAFFE: Well, traditionally what tends to happen with new Justices are a couple of things. First, they tend to pick up some clerk from the previous term to help them segway into the Supreme Court — perhaps someone who has finished up their clerkship for another Justice would be a good candidate because they already know the routine, they know the drill, they know how to deal with things like cert. positions and they will be very in tune and up to speed and be able to help the new Justice as opposed to the new Justice having to teach them.
GIACHINO: Would you have stayed on for a second term?
JAFFE: Probably. I think certainly it is extremely, extremely hard to say “No” when an offer like that comes your way. So I think that the answer is that I probably would have. It would have been difficult, certainly.
GIACHINO: Difficult financially as well. I know that clerks coming out of the Supreme Court are some of the most sought after, if not the most sought after, young attorneys throughout the world. Also, just the hours — the commitment that you have to make and the sacrifices that you have to make yourself and your family.
JAFFE: At both levels. There is financial stress, particularly if you have lots of student loans like many do and I did, so that is a consideration. But the bigger issue is more the physical toll that clerking takes. That is not getting sleep, working as hard as you can and just the tremendous stress that it places on you. That would probably be the bigger downside to doing a second term.
GIACHINO: I don’t think that it is unheard of for them to go to a former clerk — maybe not one just finishing a clerkship, but if you got the call now, would you go back?
JAFFE: Certainly if my circuit court Judge, now Chief Judge Ginsburg, went up to the Supreme Court and asked me to come up with him, I would be there in the blink of an eye. And I suspect that many of John Roberts’ former clerks, although he does not have as many, would feel the same way.
It is unlikely that he will take clerks who are coming in for the new term with him, though he may well invite clerks who were with him in the previous year and invite them to come up. There are a number of Justices who have done that and that would not be unusual. They have already had a superb circuit court clerkship that went well with Roberts himself so we know they are qualified, and if things went well while they were clerking with him they could easily be asked to go up to the next level — if they have not already been asked to for someone else, which is always possible.
GIACHINO: What happens to the people who Roberts selected for clerks to serve at the D.C. Circuit?
JAFFE: What will likely happen to them is that they will have to shift over to some other circuit judge. There are two new judges on the D.C. Circuit so it is certainly possible that they might pick up one of them who was to clerk for Judge Roberts. They may have to wait another year and try to get another clerkship. You have to remember that the D.C. Circuit is a very competitive circuit to get a clerkship on so the people that Judge Roberts would have picked will be extremely well-qualified and realistically should not have too much difficulty getting another circuit-level clerkship. Whether or not he then invites them up to the Supreme Court in a year or two or three, who knows? But that certainly would not be startling if he felt well enough to hire them and they got a good sort of apprenticeship with a different circuit judge, it is certainly possible.
GIACHINO: What will be the fate of O’Connor’s ’05 Clerks? She obviously has already hired clerks.
JAFFE: They are already there working. They reported in July. They are already there working. It is certainly possible that her replacement might pick one or two of them up. It’s possible that some other Justice might offer them a job for a subsequent term so they would just take some time off and then come back. In fact, I know one of the clerks for Justice O’Connor, and I am sure that someone will ask him to come up and clerk on the Supreme Court. He is extremely well-qualified and any of the Justices up there will recognize that.
GIACHINO: Did anyone up there divulge to you Justice O’Connor’s plan to retire before the rest of us knew?
JAFFE: No, I have not even asked such a question nor would I. He may well be disappointed that Justice O’Connor will no longer be on the Court because I am sure that he thinks well of her and is clerking for her now. But, no, I think that any of her current clerks are sitting in a good position to get another clerkship. Perhaps not this year, but in relatively short order.
GIACHINO: Well, each Justice has, what, four clerks? I think Rehnquist maybe had 3.
JAFFE: Rehnquist had three plus a sort of permanent administrative assistant.
GIACHINO: Could a Justice expand so that someone is not left without a job?
JAFFE: No, I don’t think anyone would do that. What happens is that retired Justices typically keep one clerk and they may loan them out on a part-time basis to an incoming or relatively junior Justice so that sometimes a Justice will actually have five clerks doing their work even though one of those clerks is borrowed. So Justice O’Connor will likely keep one clerk to help her do her post-Supreme Court legal work. A retired Justice, for example, can still hear cases at the circuit court level so it is not necessarily true that she is going out of the law entirely, but she may.
Chief Justice Burger, for example, kept a clerk around to help with a lot of his duties, even in retirement, as have most other Justices.
GIACHINO: And who pays for that?
GIACHINO: Well, you mentioned that most likely O’Connor’s clerks are already there. What is it that the Justices do during the summer and what is it that the clerks do?
JAFFE: Well, during the summer the main things that happen are two-fold. One is that there is a constant influx of petitions asking the Supreme Court to take cases. They are petitions for certiorari and they have to be dealt with on an ongoing rolling basis otherwise you tend to get overwhelmed. So each week they get their share of the cases, they write up their memos and they put those memos into the system. Even though the Justices will not vote on those cases until the end of the summer, doing the work to get them there needs to be kept up with or you get buried.
The other thing that needs to be taken care of over the summer are emergency petitions of one form or another — whether someone is seeking an injunction of some action from below, say a court orders a state to do something that it desperately does not want to do, or if it is a death penalty case that there is an emergency appeal on. All of those things keep happening over the course of the summer and the clerks need to continue to keep dealing with those sorts of things and do the research for their Justices and Justices will have to be available to vote on those things.
GIACHINO: So there are lots of things that continue to happen on One First Street over the summer. I understand that some will have speaking engagements, as well.
JAFFE: Absolutely, and some clerks also help their Justices with that. That is particularly not unusual to have a Justice ask a clerk to do some research over the summer on a topic that the Justice is thinking about speaking on — pull some cases, help the judge formulate the speech. Not unusual at all and actually fun for the clerk. Those types of assignments are actually enjoyable.
GIACHINO: Erik, we have a call. Is that okay?
GIACHINO: Go ahead, caller.
CALLER: Thanks, I really appreciated Erik when he was on last time because he answered some questions that I had and so I have one or two if he does not mind?
CALLER: Can you give me an idea of what the salary is of the clerks?
JAFFE: Let me try to remember. For me it was 10 years ago.
CALLER: Yes, I am just trying to get a rough idea — is it $5,000 a year or $100,000 a year?
JAFFE: I think it was in the high $30s or maybe just hitting $40,000. And at the time you compare that to the salary of a young lawyer going to a D.C. or New York firm and the salary was probably in the $100,000 range.
CALLER: What is the rationale behind Justices having clerks that they bring in for however long that they are there rather than having total permanent staff and clerks?
JAFFE: I think the general view is two-fold. One is that it is more interesting for the Justices to have new blood come in and bring a different perspective and sort of a fresh face and meeting new people. It sort of keeps their work life more interesting and more challenging. You know if you sort of have the same person there for many, many years, at some point you get to know each other too well in a sense so maybe you don’t argue with them when you know they are going to disagree about something. But maybe you want them to argue with you because they think you are more certain about something than you are. So it sort of stops that staleness and the assumptions that can grow from over-familiarity.
The second thing is that it is a very physically taxing job, if done correctly, to be a clerk. So if someone was going to be there for the long haul, either they would be risking tremendous health consequences or they would have to find a way not to expend so much energy doing it and perhaps not do as diligent a job as perhaps would be best for their Justice. So in some ways it is like a one-year sprint and you just cannot do it at the same pace as if you were doing it for more than one year.
GIACHINO: Erik, I’m wondering if you ever did this. As many of the listeners know, my husband is a physician and when he went through residency and internship we tried to calculate his pay per hour and it was in the range of $1.50 to $2.00 per hour. He was putting in ridiculous hours. Erik, did you ever try to figure that out during your clerkship?
JAFFE: I never did, but pretty much my work life consisted of getting up in the morning, not at an insane time, but getting in the office around 8:00 or 8:30 and working constantly until I left, which depending on the day could have been 7:30 or 8:00 or could have been 1:00 or 2:00 in the morning. On those days that I was able to come home and have dinner with my wife, I would. But as soon as dinner ended I would go back to work until I fell asleep on my desk. And then I would get up in the morning and start again. And that is pretty much what my life was like for the year.
CALLER: May I ask one final follow-up question?
CALLER: How much does politics come into this — one person or another trying to promote someone for a clerkship?
JAFFE: I think in general it does not play a tremendous role. There are certainly some sort of indirect ways that it can come into play. It is traditional that people applying for a Supreme Court clerking position apply to all of the Justices on the Court, just as sort of proper courtesy and respect. So even if you agree more with Justice Stevens, you would still apply with Justice Thomas and vice versa. This is precisely what I did. So there is no selection on that hand.
On the other hand, Justices looking at candidates will look at who else they clerked for and they will have more or less confidence in the apprenticeship depending on what they think of circuit court judge that they worked for. So if I worked for Judge Ginsburg and the conservative Justices have a lot of confidence in what he is likely to have taught me in terms of what it is like to have been a clerk, they may gravitate to me a little more. If somebody worked for Judge Reinhardt on the Ninth Circuit, maybe some of the liberal Justices would have more confidence in what he taught his clerks.
So politics I suppose indirectly comes into play. But the notion that somebody from the DNC calls up and says, “Hi Justice on the Left would you please take this candidate,” or vice versa, no, that does not really happen. You certainly look for someone who you are going to be compatible with and not completely at war with. But many of the Justices, I think, want people who don’t share their ideological perspectives because it gives them the other point of view and it keeps them honest and helps keep them challenged and helps make them be sure that whatever their ultimate reasoning is it has been properly tested. Scalia, for example, is notorious for every year being sure to bring in a very liberal clerk who will basically challenge him because he wants to have that challenge to make sure that he is not missing anything.
GIACHINO: That’s interesting. I was not aware of that.
Erik, that is all the time that we have today. Again, thank you very much for coming on the program and sharing with us your stories and insights about clerking for the U.S. Supreme Court.
JAFFE: My pleasure.
GIACHINO: Thanks again.