Why Congress Shouldn’t Subpoena Judge Alito’s Clerks.
This morning, I read this Sunstein-influenced NYT article which reads the tea-leaves of Judge Alito’s dissents to better predict his future rulings. The guessing game is pretty risky for many political players. Both sides of the aisle face retribution from their bases if Judge Alito deviates from (their respective views of) his predicted path. Senate Republicans have more at stake: if Judge Alito does not vote to overturn Roe, which seems at least possible given the malleability of Casey, the base would be irritated beyond all measure.
If Senators want more information about a nominee than that found in his or her public record (including financial record!), they’ve a few places to go: (1) the administration (through private and public channels); (2) the Judge (through written and oral Q&A); (3) the Judge’s friends, family and colleagues, and (4) the Judge’s former law clerks.
UTR has already gotten us going on this last track, summarizing the reactions from a few of Judge Alito’s former clerks. But, obviously, these reactions are highly self-selective. Let’s assume that the Senate really wanted to know more from the clerks about Judge Alito’s privately expressed (but legal) views about abortion, gay marriage, the death penalty, securities law, executive detention, etc. Could the Senate subpoena the law clerks and force them to talk?
There are at least two legal reasons and one prudential reason to think not.
First, there is a common-law judicial privilege protecting inter-chambers communications. See United States v. Nixon, 418 U.S. 683, 708 (1974) (“[T]he claim of confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in…decisionmaking.”) It isn’t clear to me what would happen were a law clerk to assert the privilege under questions from the judiciary committee. There are reasons to think that Congress ought to be able to create its own evidentiary rules, including one which does not recognize such privileges. Moreover, presumably the situation would come up when Congress called a clerk who had already publicly spoken out in favor of a nominee, raising the question of who owns the privilege: the judge, the clerk, or (perhaps even) the head of the federal judiciary himself.
Second, there might be separation of powers problems in calling a law clerk to testify as to a judge’s considered, but private, views. Such problems were highlighted in last year’s battles over federal judge’s sentencing practices. I think most commentators believe that congress had the power to subpoena judicial inter-chamber written documents — and that greater power probably subsumes the lesser power of merely requiring testimony.
Fortunately for our (hypothetical) law clerk, the challenges to a subpoena would be played out in a court, in a hearing considering a motion to quash, before a judge, who will have certain incentives to deny the Congressional intrusion into judicial affairs.
All of this has put to one side the strong prudential reason not to subpoena law clerks – clerks arguably make modern judging possible. That is, if you subpoena Judge Alito’s clerks, it opens the door to similar summons for all nominations, further degrading the nomination process, and, more importantly, making it foolish for ambitious federal and state judges to employ clerks. There is an argument that having clerks has made public judicial work product (opinions) less strong, especially in cases where clerks take the lead in drafting (habeas, social security). But this view of judging underestimates the amount of time spent on management of complex dockets, a task that would hard, or even impossible, without the help and counsel of clerks. Even if getting rid of law clerks would make opinions “better”, it would make judging worse.
So, even to the extent that the Senate could subpoena law clerks to inform its nomination deliberation, it should not. This will probably be a relief to those close friends of mine who might otherwise have been a target of yet another (foolish) attempt by Senators to buy political insurance.