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.

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9 Responses

  1. Mike says:

    “[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.”)

    If judges simply apply the law to the facts, then what interest does confidentiality serve? There facts are part of the public record, and no cites outside this record are allowed. Opinions are public record. Thus, an honest judge need only to neutrally apply publicly available law to publicly available facts.

    If all judges are doing is applying the law to the facts, then why the need for secrecy? What public interest is served by this privilege.

    But if, as the Vanity Fair article on Bush v. Gore suggests, something else is taking place, then secrecy is needed. But what public interest does that serve? Helping us believe noble lies?

  2. anon says:

    What about an attorney-client privilege, given that the clerk will often be an attorney licensed in the relevant jurisdiction?

  3. SCOTUSblog says:

    Blog Round-Up – Thursday, November 3rd

    In nomination news: Here is Judge Alito’s student Note from the Yale Law Journal. The Note analyzes the Supreme Court’s decisions in the so-called “release time” cases. These cases dealt with the question of whether public schools violate the Est…

  4. John Cowan says:

    If judges simply apply the law to the facts…

    They don’t. Mechanical jurisprudence has been discredited for almost a century. If judges merely applied law to the facts, we wouldn’t need them. What judges do (surprise!) is to apply judgment. Constrained and trained judgement, certainly, but judgement nevertheless.

    Anon, supposing that a judge is a client of his clerk is preposterous.

  5. OUPblog says:

    How to Improve Judicial Confirmations

    by Richard Davis, author of Electing Justice: Fixing the Supreme Court Nomination Process (Originally published in the Nov. 3 edition of Roll Call) For the third time in less than four months, the Senate is preparing for another Supreme Court

  6. Craig Green says:

    This from http://www.savethecourt.org:

    In a Senate floor speech delivered on December 20, 1995 (Congressional Record at S18972) Senator Fred Thompson said:

    [A]n invocation of the attorney-client privilege is not binding on Congress. It is well established that in exercising its constitutional investigatory powers, Congress possesses discretionary control over witnesses’ claims of privilege. It is also undisputed that Congress can exercise its discretion completely without regard to the approach that courts might take with respect to that same claim. …The Senate … has rejected invocations of attorney-client privilege on numerous occasions.

  7. Craig Green says:

    And, lest one unduly trust a Senator-turned-D.A., this from the Legal Times (www.acprivilege.com/articles/article13.html):

    Is there no government privilege for purposes of congressional subpoenas? Although Congress is not responsible for prosecuting individual criminal acts, its legislative responsibilities are, in many respects, far more important to the public than the resolution of a single criminal matter. Since generally the attorney-client privilege has been as applicable to congressional hearings as to grand jury and judicial proceedings–that is, Congress in practice (if not in theory) has respected the privilege–does the Lindsey reasoning render the government privilege permeable to congressional subpoenas, regardless of whether criminal activity is being examined?

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