'Don't Make Stuff Up': Justice Gorsuch on Being—and Selecting—a Supreme Court Clerk
Neil Gorsuch is the first Supreme Court justice to serve alongside a justice for whom he once clerked on the court. What's his recipe for a successful clerkship?
September 17, 2019 at 11:47 AM
5 minute read
A Supreme Court clerkship is a credential that now commands a bonus nearing half a million dollars from the nation's most prestigious law firms. It opens up teaching and research opportunities at leading academic institutions and wins attention from government officials looking to fill vacancies on the federal courts.
It's well known how many doors high court clerkships can open. But what about the closed-door process of selecting them?
Justice Neil Gorsuch is the first Supreme Court justice to preside alongside a justice for whom he clerked, having previously served as a law clerk to now-retired Justice Anthony Kennedy. In his new book "A Republic, If You Can Keep It," Gorsuch recounts his experiences clerking for Kennedy and Justice Byron White in 1993-1994.
When White retired in 1993, President Bill Clinton picked Justice Ruth Bader Ginsburg as his replacement. A quarter-century after his clerkship, Gorsuch wrote in his book, a "surprising number" of the Supreme Court's longtime employees remembered him from his days as a clerk.
"I remember the day my old boss passed along to his new colleague his law clerk manual, just in case she'd find it helpful in setting up her office," Gorsuch wrote. "Shortly after my confirmation, Justice Ginsburg returned that same document to me, along with many helpful updates she had added over the years. That was quite a moment for me."
Whatever lessons that manual held, Gorsuch has already shown that past practice isn't his only guide when it comes to choosing clerks, especially the practice of almost exclusively favoring a queue of recent graduates from a small circle of elite law schools.
Gorsuch has recently hired three new clerks for the forthcoming terms from the ranks of the professoriate, including Stephen Yelderman, professor at the University of Notre Dame Law School; Mark Storslee, assistant professor at Pennsylvania State University School of Law; and Stephanie Barclay, associate professor at Brigham Young University Law School.
The diversity of Gorsuch clerks extend to their ethnicity, gender, and religion as well. According to The National Law Journal research, 85% of all clerks between Chief Justice John Roberts' first term and Gorsuch's first term were white, and twice as many men earned clerkships as women. Of Gorsuch's first seven clerk hires included in that analysis, two were Asian-American men and one clerk was a Hispanic man. One of those law clerks, Jamil Jaffer, is Muslim. A female law clerk, Jane Nitze, was still nursing her newborn baby when she began clerking for Gorsuch at the Supreme Court.
Last year, Gorsuch hired Tobi Young, former general counsel to the George W. Bush Presidential Center, who may be the first Native American to serve as a clerk for any justice. Young is an Oklahoma-born citizen of the Chickasaw Nation.
Reflecting on the dearth of Native American clerks at the Supreme Court, Gorsuch exclaimed in an interview, "Isn't that crazy?" He also shared the advice he gives each of his clerks.
"Now the beginning of each term, I try to explain this to my new law clerks," Gorsuch said. "Some of them like Tobi don't need it, they've heard it too many times already. I say, 'I have just two rules and we're going to get along fine. Rule No. 1: Please, please don't make stuff up. And Rule No. 2: When all those people out there in the chattering classes beg you to make something up, tell you they'll spurn you and won't invite you to their cocktail parties if you don't make the stuff up that they want made up, refer back to Rule No. 1 please."
Nitze and David Feder, another of Gorsuch's former Supreme Court law clerks and a current associate at Jones Day in Los Angeles, co-authored "A Republic, If You Can Keep It" with their former boss. Feder has been on the road with Young on Gorsuch's whistle-stop book tour ahead of the Supreme Court's new term next month. Last week Feder and Young made appearances with Gorsuch as he traveled to the Ronald Reagan Presidential Foundation and Library and the Richard Nixon Presidential Library and Museum.
Gorsuch and his clerks are headed to the George W. Bush Presidential Center in Dallas, Texas, on Wednesday.
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Gorsuch Gets Personal, Recounts Nomination Process as Book Debuts
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