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The Supreme Court is an institution famously reluctant to say much beyond the four corners of an opinion. But every fall the highest court in the land releases a much-anticipated list of the year’s law clerks, a crop of rising legal stars, whose influence on decision-making is quiet but powerful. (Indeed, law firms try to woo these clerks to private practice with $200,000 signing bonuses.) Down the road at the U.S. Court of Appeals for the D.C. Circuit, an old stomping ground for many of the justices, such a list is not easily accessible. Instead, the clerk of the court, Mark Langer, says the disclosure of the identities of the clerks, who are bona fide public employees, is up to the discretion of each judge’s chambers. When Legal Times requested a list of the D.C. Circuit’s law clerks last fall, the court said the policy was intended to prevent recruiters from bothering their clerks. Langer said any divergence from the policy would have to be approved at a judges’ meeting. But in January, the judges denied Legal Times‘ written request. D.C. Circuit Chief Judge Douglas Ginsburg refused to take calls on the subject. Asked last week to elaborate on the policy, Langer would only say, “The court is concerned with ex parte contacts.” It appears there is no uniform policy within the federal court system regarding the release of the names of law clerks — leaving circuits with widely varying views on the topic. Officials at the 1st, 2nd, and 5th Circuits e-mailed a list of law clerks within hours of a request, while officials at the 3rd and 11th Circuits said such information would not be made public without approval by its chief judges. Phyllis Herriges, assistant circuit executive for the 4th Circuit, says its policy is similar to the D.C. Circuit’s. Stephen Gillers, a legal ethics specialist at New York University Law School, finds this sort of court secrecy problematic. “They’re federal employees, and there is no apparent need for secrecy,” he says. “This is not the CIA.” What’s more, Gillers says, “a lawyer with a case before the court may need to know whether a clerk’s identity creates a conflict that warrants recusal.”
Emma Schwartz can be contacted at [email protected].

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