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More than 90 prominent lawyers and former Supreme Court law clerks including former attorneys general Richard Thornburgh and William Barr have joined in a statement sharply criticizing the law clerks who gave behind-the-scenes details about the 2000 case Bush v. Gore to Vanity Fair. The statement, submitted to law.com, an affiliate of The National Law Journal, said that clerks who spoke to Vanity Fair contributing editor David Margolick for the piece in the magazine’s October issue engaged in “conduct unbecoming any attorney or legal adviser working in a position of trust.” The anonymous clerks’ disclosures also violate the clerks’ code of conduct and their “duty of confidentiality” to their justice and to the court, the joint statement asserts. Entitled “The Path to Florida,” the article reviews the dramatic events of four years ago and depicts sharp divisions within the court over whether the Florida recount should proceed or be ended. Justices Antonin Scalia, Sandra Day O’Connor and, eventually, Anthony Kennedy are portrayed as determined to reach a result that would hand victory to George W. Bush. Several law clerks are named, though they are not necessarily among the clerks that Margolick was able to interview. Margolick said that roughly one-fourth of that term’s 35 clerks spoke with him. In a footnote published with the article, Margolick acknowledges the confidentiality rule and says that none of the clerks he spoke to disclosed internal documents or conversations with their justices. But he indicates that the clerks who were willing to give him other details did so because they felt strongly the court had acted improperly in the election case. The joint statement responding to the article said that the clerks’ breaches of confidentiality “cannot be excused as acts of ‘courage’ or something the clerks were ‘honor-bound’ to do.” Later it states, “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.” In one episode reported in the story, Scalia clerk Kevin Martin visited the chambers of Justice John Paul Stevens to discuss the case with Stevens’ clerks. The conversation “turned nasty,” Margolick reports, and Martin stormed out. Martin could not be reached for comment. On another occasion, Kennedy was said to have visited Justice Stephen Breyer’s chambers, where he stated aloud that he hoped Breyer would join his opinion against continuing the recount. “We just kind of looked at him like he was crazy,” a clerk is quoted as saying. Andrew McBride, a 1988 O’Connor clerk who helped draft and circulate the statement, said it was launched after “seven or eight former clerks of various years read that footnote and said, ‘This is unbelievable.’ “

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