Big Law firms are not the only institutions that seek out former U.S. Supreme Court law clerks to add luster and intellectual firepower to their workforce. Add the White House to that list, too.
In his rush to install a wave of federal judges, President Donald Trump has chosen 24 former Supreme Court clerks to fill federal trial and appellate judgeships. Among his 41 appellate nominees, 17 are former Supreme Court clerks—not counting his two Supreme Court nominees Neil Gorsuch and Brett Kavanaugh, both of whom clerked for Justice Anthony Kennedy, who retired July 31.
Including Gorsuch and Kavanaugh, that means a stunning 44 percent of Trump’s appellate nominees have a Supreme Court clerkship on their resume.
A tally of the nominees also reveals that 10 of the 24 Trump judicial nominees who are former SCOTUS clerks clerked for Justice Clarence Thomas, more than any other justice. Among Thomas’ clerks who have become appellate judges are: David Stras on the U.S. Court of Appeals for the Eighth Circuit, James Ho on the Fifth Circuit, Allison Eid for the Tenth Circuit, Gregory Maggs on the U.S. Court of Appeals for the Armed Forces, and Gregory Katsas for the D.C. Circuit.
Trump has nominated four former Antonin Scalia clerks, four from Anthony Kennedy’s chambers, two from Samuel Alito Jr., two from Rehnquist, one from David Souter, and one from Stevens. No one nominated by Trump has come from the chambers of Chief Justice Roberts, whom Trump has criticized for his votes salvaging the Affordable Care Act.
So why are Thomas’ clerks so popular at the White House?
Carrie Severino, chief counsel of the conservative Judicial Crisis Network and a former Thomas clerk, said, “President Trump campaigned on his promise to pick judges who would base their decisions on the text and original meaning of the Constitution, so it should come as no surprise that a significant number of his extraordinarily qualified nominees have clerked for Justice Thomas, who epitomizes this approach to interpreting the law.”
Another factor may be Thomas’ reputation for hiring clerks who share his judicial philosophy. For the sake of hearing different perspectives, some justices in the past have hired “counter-clerks” who have opposing views. But Thomas once famously said, “I won’t hire clerks who have profound disagreements with me. It’s like trying to train a pig. It wastes your time, and it aggravates the pig.”
Taking the long view, the dominance of law clerks among judicial nominees also sets up a farm team for future Supreme Court nominees, who tend to be former appellate judges.
It used to be that only three justices in history had previously been Supreme Court law clerks—Byron White, John Paul Stevens and William Rehnquist. But now, for the first time, a majority of the nine sitting justices—John Roberts Jr., Stephen Breyer, Elena Kagan, as well as Gorsuch and Kavanaugh—are former Supreme Court clerks. With Trump’s appellate court nominees in place, the Supreme Court could someday be completely populated with former clerks.
Harvard Law School professor Noah Feldman recently expressed concern about what he called a “remarkable and perhaps unjustified rise of this elite-within-an-elite” because “clerks come from a narrow band of law schools and tend to share an extremely narrow range of legal and professional experiences after clerking.”
This narrow band is also primarily white and male. Of the 24 former Supreme Court clerks Trump has nominated for judgeships, 18 are male and six are female.