Law clerk touches off firestorm

A recent article in Vanity Fair magazine, which quoted law clerks who gave inside information on behind-the-scenes conflicts over the Supreme Court’s ruling in the 2000 election case of Bush vs. Gore, has drawn sharp criticism from more than 90 prominent attorneys and former high court law clerks.

Those critical of other clerks’ comments included former attorneys general Richard Thornburgh and William Barr.

Their statement and that of the other objectors was submitted to Legal Clerks who spoke to Vanity Fair Editor David Margolick for the article in the October edition, the statement said, participated in “conduct unbecoming any attorney or legal adviser working in a position of trust.”

The statement may be found at:>.

Critics further stated that the anonymous disclosures violate the clerks’ Code of Conduct and their “duty of confidentiality” to their justices and to the court. The Vanity Fair article is headlined “The Path to Florida,” and reviews the happenings of four years ago and furnishes a picture of sharp splits within the court over whether to proceed with the Florida recounts or to end them.

Three Justices—Antonin Scalia, Sandra Day O’Connor and Anthony Kennedy—are portrayed as determined to hand victory to George W. Bush.

Margolick said he talked to about one quarter of that term’s 35 law clerks. Several clerks are named but did not necessarily talk with Margolick. A former New York Times legal affairs reporter, Margolick recognizes the confidentiality rule and stated none of the clerks he interviewed revealed internal documents or conversations with their justices. He said the clerks who were willing to supply other details did so because they strongly believed the court acted improperly in that case.

“We feel,” Legal reported, “that something illegitimate was done with the Court’s power, and such an extraordinary situation justifies breaking the obligation we’d otherwise honor,” one clerk said.

The joint statement in answer to the article said the clerks’ breaches of confidentiality “cannot be excused as acts of ‘courage’ or something the clerks were ‘honor-bound’ to do.” It further said, “Personal disagreement with the substance of a decision of the Court…does not give any law clerk license to breach his or her duty of confidentiality.”

Andrew McBride, a law clerk for Justice O’Connor in 1988, helped draft and circulate the statement. He said it was sent out after “seven or eight former clerks of various years read that footnote and said: ‘This is unbelievable.’”

He said clerks of all political persuasions were distressed that some clerks were willing to violate their Code of Conduct because they disagreed with Bush vs. Gore. McBride said signers of the statement were solicited across the country, but none of the clerks serving in 2000 was asked to take part.

Eric Jaffe, a 1996 law clerk for Justice Clarence Thomas, who signed the statement, said confidentiality is a vital obligation. “Clerks have unprecedented access and are granted unprecedented candor,” Jaffe said. He likened what the other clerks did to “stealing my diary.”

He added: “If any attorney did that, he’d be disbarred.”

Enjoy The Rock River Times? Help spread the word!