U.S. Supreme Court Justice Samuel Alito Jr.’s son Philip is clerking for Judge Brett Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit, and may soon enter private practice.
The young Alito has been serving as one of Kavanaugh’s four law clerks since last summer, without any media attention until now. A 2012 graduate of Duke Law School, the younger Alito worked in 2011 as a summer associate in Gibson, Dunn & Crutcher’s Washington office.
"Phil Alito is an intelligent and talented young lawyer with an impressive record," said Thomas Dupree Jr., the firm’s hiring partner in D.C. "We were delighted that he chose to participate in our summer program as a law student and hope to welcome him back as a new associate." Dupree declined to say if Alito has applied for a job at Gibson or has been offered one.
Philip Alito’s current position and future job possibilities raise some intriguing questions for his father. Knowing where his son works, would Justice Alito have a softer spot for Kavanaugh’s rulings than usual when they are challenged before the Supreme Court? And what if, after his clerkship ends this summer, Philip Alito is hired by a firm like Gibson that litigates before the Supreme Court?
Numerous Kavanaugh clerks have gone on to clerkships at the Supreme Court, but that path seems foreclosed for Philip Alito by a federal nepotism law: 28 U.S.C. 458 would bar him from working at the court where his father is a judge. Philip Alito could not be reached for comment, and Kavanaugh declined to be interviewed for this story.
Through court spokeswoman Kathy Arberg, Justice Alito declined to discuss his son’s clerkship. But the justice did say that he would adhere to a nearly 20-year-old policy statement on family-based recusals if Philip enters private practice. That policy, signed by seven members of the court, described how they would handle cases in which close relatives who are lawyers — or their law firms or partners — participate. They agreed they would not ordinarily recuse if their relatives were involved at earlier stages of the litigation, unless they were lead counsel, but would recuse if their relatives’ partnership shares would be affected by the outcome of a Supreme Court case.
"Justice Alito does subscribe to the policy that the Court adopted some time ago (and has followed it with respect to his sister)," court spokeswoman Arberg said in a statement. "The policy would apply to Philip if and when he is in practice." Justice Alito’s sister Rosemary is a K&L Gates practice leader in Newark, N.J., in the firm’s labor and employment group.
As for Philip Alito’s current job, two judicial ethics experts think his father is under no obligation to recuse in cases that challenge a Kavanaugh opinion, even if it might bear his son’s fingerprints, so to speak.
New York University School of Law professor Stephen Gillers acknowledged that "the son has an interest in a decision affirming Kavanaugh on any matter in which the son did substantial work. Conversely, the son has an interest in not seeing an opinion for which he had responsibility as a clerk reversed."
Nonetheless, Gillers added, "It is Kava­naugh who makes the decisions, not his clerks. I think recusal is not required." Because an opinion is the judge’s, not the clerk’s, Gillers said, "the benefit to the son from an affirmance of a case on which he worked, though gratifying, is not significant enough to mean that [Justice] Alito’s impartiality might reasonably be questioned."
Amanda Frost, professor at American University Washington College of Law, agreed. Under the federal recusal statute, Alito would be required to recuse if his "impartiality might reasonably be questioned" or if his son has an "interest that could be substantially affected by the proceeding."
Neither factor is triggered, Frost said, when Justice Alito is reviewing a D.C. Circuit opinion that his son may have worked on. "As a law clerk his son’s role is to carry out Judge Kavanaugh’s wishes, and the opinion is published under Kavanaugh’s name," she added. "The son is not the author, or even publicly associated with the position taken in the decision. Indeed, it is always possible that the son disagreed with Kavanaugh’s decision in the case."
Furthermore, Frost said, it is not clear that "reversal by the Supreme Court would ‘substantially affect’ his son’s interests, since reversal is not viewed as a black mark on a clerk’s record — or even on a judge’s record, for that matter, at least in cases where the question was a close one, as it usually is in the Supreme Court."
The original version of this article misstated the possibility that Justice Samuel Alito’s son could clerk at the U.S. Supreme Court. Federal law would bar Philip Alito from working at the court where his father is a judge. Tony Mauro can be contacted at firstname.lastname@example.org.