Can the Attorney General's Daughter Clerk on the Supreme Court?

This ethical question was avoided after Attorney General Garland's daughter postponed her clerkship with Justice Kagan.

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In July 2020, Justice Kagan hired Jessica Garland as a law clerk for the October Term 2022. The Yale Law School grad had previously clerked for Judge Barron on the First Circuit, and Judge Engelmayer on SDNY. Oh, and her father was Judge Merrick Garland. At the time, that hire was entirely appropriate. Fast-forward to 2021. President Biden nominated Garland as Attorney General. Here, it is apparent that Merrick Garland's position as Attorney General had no bearing on his daughter's hiring. But after a tempest on social media, Justice Kagan postponed the clerkship. The PIO put out this statement (via David Lat):

Justice Kagan hired Jessica Garland as a law clerk in early July 2020, before President Biden's election and Attorney General Garland's appointment, to serve as a law clerk in 2022-2023. In light of the potential for actual or apparent conflicts of interest, Jessica Garland will not serve as a law clerk for Justice Kagan while Attorney General Garland remains in office.

Any ethical questions were avoided.

Can the Attorney General's daughter clerk on the Supreme Court?

The first thought that came to mind was Ramsey Clark. President Johnson nominated Ramsey Clark as Attorney General. At the time, Ramey Clark's father, Tom Clark, sat on the Supreme Court. Justice Clark retired from the Court. And, the conventional wisdom is that Johnson deliberately appointed Ramsey Clark as AG to open up a Supreme Court seat–which he promptly nominated Judge Thurgood Marshall to.

As an ethical matter, Justice Clark's decision made sense. The United States Attorney General participates in a very large portion of the Court's docket. It would simply not be feasible for a Justice to wall himself off from every petition that involves the federal government. Indeed, the SG can often enter a granted case as amicus curiae. Retirement was probably the best course of conduct.

But what about a situation where the Attorney General's child is a law clerk for a Justice? As a general matter, clerks are recused from any case they may have worked on in private practice. (Though clerks are not recused from a case they worked on in a prior clerkship). [Update: A colleague suggested that some Supreme Court clerks do recuse from cases which they participated in on a lower court.] Given four clerks, it would be feasible to wall off one of them from all matters concerning the federal government. That clerk probably couldn't fully participate in the cert pool, as the SG is involved in so many petitions. But a broad recusal could work. There is always the risk that the clerk would be privy to conversations in chambers about a case concerning the federal government. The walled-off clerk would have to leave the room whenever any SG brief comes up.

Could that sort of arrangement work? Would it address the "potential for actual or apparent conflicts of interest"? Probably, but it would be tough. I trust the Justices to abide by ethical protocols, even if there is no formal rule. But that steep wall between boss and staff would render the clerk somewhat ineffective for the term. The separation would shift considerable work onto the other clerks. The most high-profile, and work-intensive cases, involve the federal government. And there would be undue frustration and friction in an otherwise seamless chamber. It makes sense that Justice Kagan postponed the clerkship, at least for the next several years. Jessica Garland will have a lot more fun when she has access to the full docket.

NEXT: Coming Soon: A Planned Ten-Part Series About The Offices and Officers of the Constitution

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  1. Justice Kagan did the right thing. Avoiding any appearance of conflict is critically important

    1. How long can one wait before becoming a SCOTUS clerk? If one presumes that Garland will be AG for at least four years, wouldn’t it be too late in her career to then be doing a SCOTUS clerkship?

      Now what if Trump had nominated Garland rather than ACB, as many were suggesting that he ought to do?

      1. The only limitation is if a Justice still wants you to clerk and you still want to do it.

        1. I’ll note that Oren Kerr clerked for a SCOTUS justice relatively late in his career. He is now a professor at Boalt Hall (UcBerkeley)

          1. That’s “Berkeley Law” now. “Boalt Hall,” I’m happy to say,* has been consigned to the dustbin of history.

            (*Why happy? Because “Berkeley” is a prestigious name. Removing it from the law school did no favor to its students. I can’t count over the decades how many quizzical expressions demanded I explain that my alma mater was actually the law school at U.C. Berkeley. A minor annoyance to be sure, but an annoyance none the less.)

          2. Also, “Oren Kerr” is “Orin Kerr.” I only mention it because for several years there was a commenter here who allayed confusion with Professor Kerr by adopting the nom de comment thread, “Oren with an ‘e’.”

    2. “any appearance of conflict”

      A better term than “appearance of conflict” would be “unacceptably high risk of conflict.” Appearance is a more respectful phrasing, implying as it does that, of course, we *know* this judge is utterly incorruptible, but just to reassure the hoi-polloi she won’t hire the AG’s daughter.

      Anything can be made to *look* bad, so the “appearance” dodge isn’t persuasive. The question is whether there would be a risk of Kagan either being biased in favor of the Garland family, or, conversely, deliberately bending over backwards to show “reverse favoritism” to clear herself of suspicion by opposing the AG when she should support him

      The higher the risk of such an eventuality, the stronger the argument for avoiding the risk.

  2. First show a harm, then find a legal remedy. Leave people alone, even left wing, Ivy indoctrinated, awful feminists. This nitpicking makes people hate lawyers.

    1. Which is the bigger problem? She is Garland’s daughter, or she is an Ivy indoctrinated, feminist, scumbag lawyer. No lawyer should be allowed on the Supreme Court, or even near its building.

  3. This seems like nonsense.

    There is clearly a problem when there is the appearance that a clerk gets hired as a favour to their parent (or spouse, or other relative). But, as noted, that’s not the case here. A clerk does not determine the outcome of any cases, so it can’t be a matter of improper influence in the other direction either. And if you think someone can’t keep their mouth shut about what they see or hear at work, you shouldn’t hire them to be a clerk regardless of who their father is.

    1. Martinned: Of course it is the judge who determines the outcome of a case, but a clerk can certainly influence the outcome — sometimes (though rarely) the bottom line, but often the reasoning and the implications of any resultant precedent, and sometimes exactly what is likely to happen on remand. It is, after all, the clerk’s job to research the case, to draft the opinion (in most chambers), and to advise the judge. The influence of an advisor can be quite substantial, even though the person is just an advisor.

      1. You would know better than I do, but to paraphrase what I said below: If there are people walking around who have “substantial” influence on a Justice of the Supreme Court, that’s a problem regardless of who their father is. I fail to see how having a clerk who’s related to the Attorney-General makes that problem any worse.

        Again, what is it that she might do? Influence the Justice to favour outcomes or reasonings she likes? I assume all clerks do that, and for all sorts of reasons including what their fathers do for a living. Recommend more cases for cert where it is the DOJ that’s seeking cert? If any clerk can materially increase the probability that a given case will be granted cert, that’s a major argument against the cert pool. (Which has, of course, been criticised by various people for pretty much that reason.) But all of that is just a general problem that far exceeds any specific clerk.

        Short of a quid pro quo or influence on outcomes, I think she’s fine to act as a clerk on any and all cases that come in through the door.

  4. “A clerk does not determine the outcome of any cases,”
    But influence? absolutely.

    1. Influence how? Like, what’s the concrete theory here of what Jessica Garland might have actually done? Use more semicolons because she knows her dad likes them?

      1. I mean, don’t they write the initial Dldraft? And don’t judges bounce ideas off of their clerks? Maybe they don’t change the outcome but the specific wording might change, which is important.

      2. You clearly know nothing about what clerks do in the Supreme Court. They are not copy editors and or legal secretaries. They can and often to play a formative role in the decision process.

        1. I was exaggerating slightly, but if they “play a formative role in the decision process”, there’s a much bigger conversation to be had about the way Federal judges work and/or the way clerks are hired. The justice is in charge, and they have a small shop of clerks to do the drafting for them and read the cert petitions. If that gives rise to a plausible conflict of interest (other than the situations I mentioned earlier), my name is Santa Clause.

          1. Reading the cert petitions and drafting the cert memos: i.e. the first impression the Justice has of the case, obviously creates huge problems. Moreover, the justices talk to their clerks about the cases, the clerks talk to each other, etc., and that influences the direction of the case whether knowingly or unknowingly.

  5. Isn’t this a neat alternative to court packing ?

    1. identify “enemy” SCOTUS Justice
    2. identify legally qualified children thereof
    3. appoint child to DoJ position

    and Ramsey Clark’s your uncle, so to speak

    OK, not all Justices have legally qualified children, and not all legally qualified children are going to be willing to be used to prise Dad (or Mom) from his/her SCOTUS seat.

    But there’ll be some – not all children love their parents’ politics.

    1. Because of Vietnam people often forget that President Johnson was very good at being president. Fewer pretty speeches than Kennedy, but more skill at, ya know, actually doing the job.

      1. Because of that Lincoln shooting, people forget that security at Ford Theater was very good.

        1. Good reply, Bob

          1. Counter argument: “Under President Lyndon Johnson, 48,399 [US personnel] died in Vietnam during 1964-69.”

            Ignoring the elephant in the room just gets you trampled.

            1. Under President Abraham Lincoln, 110,100 Union soldiers died in battle.

              1. Lincoln won, LBJ lost.

  6. Biden appointed Garland as AG for the specific purpose of preventing Garland’s daughter from clerking at the Supreme Court.

    (Following LBJ’s appointing Ramsey Clark as AG to get Clark’s father off the Court.)

  7. One wonder if Ms. Garland was hired as a symbol in the first place.

    1. But only one.

    2. I truly doubt that.

      1. Considering her father being denied a seat on the court?

        1. yes, even considering that.
          She had a very good background for being picked “the Yale Law School grad had previously clerked for Judge Barron on the First Circuit, and Judge Engelmayer on SDNY.”
          Did it matter that Mr Garland was chief judge of the DC circuit? most likely to some degress. Did it have to do with Mr Garland being denied a seat on the court? Likely. no.

  8. I have a Modest Proposal. How about not hiring someone like Garland’s daughter in the first place?

    A ton of effort is put into Diversity, Equity, and Inclusion. But we all know that people with rich and powerful parents have huge connections that they use to their advantage, and this defeats the goals diversity and equity. So why not start disadvantaging those people? You’re the daughter of Merrick Garland? OK, you don’t get to clerk at the Supreme Court. You don’t get into an Ivy League law school. Let’s compensate for some of your unearned privilege. And avoid some nasty nepotism problems.

    1. “So why not start disadvantaging those people? … You don’t get into an Ivy League law school.”

      So trendy and woke, Dilan

      How about not being unfair either way.

      Punishing children for being born to the wrong parent is bad, period.

      1. Punishing children for being born to the wrong parent is bad, period.

        Something tells me this is not a hard and fast rule for you in certain other contexts.

        1. What contexts do you have in mind, my moral scold?

            1. If there is anything an immoral person dislikes it is a moral scold with facts.

    2. Isn’t she Jewish like her father? Surely that’s enough to count as diverse?

      1. Wow, you are on a roll of foolish comments. This one even smells anti-semitic

      2. Overrepresented group. Doesn’t count.

    3. Sounds like the daughter was there first. Why isn’t the question, “Can the father of a clerk who will begin her clerkship soon be hired as Attorney General?”

      1. If only Justice Kagan had hired one of Bill Barr’s kids for a clerk back in 2018.

        1. Great idea! When I get my time machine, that’s the second thing I’m gonna do. (#1: Invest in Bitcoin at 300 coins per dollar.)

    4. “Let’s compensate for some of your unearned privilege.”

      How do you distinguish earned privilege from unearned privilege? Denying earned privilege is just as unequitable as unearned privilege.

      Also, “It’s about time the powerful learned that life isn’t fair!” strikes me as a terrible take.

    5. I don’t know if you really want to go down that road, Dilan. You and I were in the same high school Physics class, and I recall you being the smartest kid in that class by a wide margin (and the entire school, for that matter). In addition to your “unearned” intelligence bestowed on you by your genes, you are a straight, white male. So, to help achieve your stated goals of diversity and equity, are you willing to give up your job to someone who hasn’t enjoyed the benefits of your unearned privilege? Why is it that virtue-signaling CEOs and diversity-promoting authors (e.g., Robin DiAngelo) never volunteer to give up their own jobs to less privileged, more diverse candidates?

      1. It isn’t so much “give up my job”, but have I ever lost positions or opportunities to people not chosen “strictly on merit”? Sure. Does it bother me? Not really.

        Part of my problem nowadays is that the folks who pay the costs of diversity, equity, and inclusion programs are the people without the wealth, the legacies, etc. It’s some kid who grew up poor. (Which isn’t me, as you know.)

        At any rate, do note I tagged it “Modest Proposal”, capitalized. I was referencing a prior Modest Proposal. I do realize there’s no way to prevent the privileged from acting on their privileges.

        1. (And by the way, no way was I the smartest person in the school. Our graduating class produced, for instance, a tenured professor of critical studies at Occidental College, just as an example of someone I know about. And she was, and is, a damned bit smarter than I was/am.)

          1. “critical studies at Occidental College”

            Glad she put all that intellect to something totally worthless.

            The department web site is like the Babylon Bee or Onion wrote a parody of woke.

            https://www.oxy.edu/academics/areas-study/critical-theory-social-justice

            A course titled “Stupidity” is really on brand.

            1. Yes, you would definitely have to be on Oxy to pay to study there…

          2. Perhaps. I guess I’m a little biased favor of STEM-style subjects, and since our Oxy professor classmate didn’t take any of the hard-science electives offered at our school, maybe I unfairly overlooked her. I’ll just point out that our physics class included our graduating class’s valedictorian and salutatorian, both of whom went on to become successful doctors (one of them a highly regarded eye surgeon), and yet you ran circles around all of us.

            My larger point stands, though, I believe. Was Justice Kagan’s hiring decision based on Jessica Garland’s accomplishments? Nepotism? To what extent were Garland’s accomplishments the result of the opportunities afforded by her privileged upbringing? I have no idea, and I don’t think anyone else does, either. I loathe nepotism, especially relating to government hiring, and I don’t give a tinker’s cuss whether Garland gets to be a USSC clerk, but I believe your “don’t hire children of the rich and powerful” proposal would cause more problems than it would solve.

            Go Bulldogs!!!

    6. Dilan,
      How about not discriminating against anyone. Isn’t that a clean and fair idea?

      There will always be nepotism issues that come about innocently. This was just such a case. Justice Kagan did not need you or anyone else to tell her the right thing to do. She just did it.

    7. In and of itself, I don’t see “nepotism” as a dirty word.

      One incentive for people to work hard and sacrifice is to give their children, grandchildren and so on a step up on the social ladder.

      Take away that incentive, and see what you get.

      That isn’t to defend actual conflicts of interest. But the child of a high-powered lawyer becoming a high-powered lawyer, there’s nothing *inherently* wrong with that, even if she uses her family advantages.

      I mean, Benjamin Cardozo was a judge just like his dad…well, not *just* like…in fact, maybe that’s a bad analogy.

      1. There’s a big difference between “work hard and sacrifice so that I can leave money to my children or live in a nice neighborhood where they can get a good education” and “work hard and sacrifice so that my kids can get hired or advance ahead of equally or better talented people in part on the basis of being related to me”.

        1. Is there? Care to elaborate?

          1. You don’t see a difference between Merrick Garland working hard to make sure his daughter is the most qualified candidate to be a Kagan clerk, and Garland working hard to make sure his daughter gets hired even though she’s not the most qualified?

        2. It’s a fine line, and I know there’s a divide (I almost said a “growing divide,” but I may as well admit it exists already) between people from families like the Garlands and others. I don’t know perfectly why the divide exists, but I do regard it as a problem

          I don’t think it can be solved by tearing down the successful, though setting up those at the bottom so they and their descendants can climb the ladder of opportunity quicker…I’m all ears for suggestions.

      2. “In and of itself, I don’t see “nepotism” as a dirty word.”

        Certainly true, unless there’s a public trust involved. There’s nothing wrong with a private business owner hiring his own children.

  9. “Jessica Garland will have a lot more fun when she has access to the full docket.”

    Well, I think we can all agree that’s the important thing here.

    1. When you think of the clerkship as a learning opportunity, that makes sense.

  10. Maybe Kagan can add some real diversity to her staff by hiring a clerk from a mid-tier law school instead of the Ivy League.

    1. Maybe Blackman can suggest one of his students.

      1. Or himself.

          1. Josh would probably be a decent Kagan clerk:

            1. They both think she has some out-sized ability to influence the direction of the Court.

            2. They both get mad about the Chief and Brett Kavanaugh and think they’re cynically voting or moralizing in opinions to pretend to be moderate.

            1. You’re out-doing yourself this afternoon!

      2. Does South Texas qualify as mid-tier?

    2. “Maybe Kagan can add some real diversity to her staff by hiring a clerk from a mid-tier law school instead of the Ivy League.”

      That’s just crazy talk.

  11. Before I look through the comments, let me guess there’s a reference to Justice Thomas’ wife.

    1. Oops, I was wrong, my sincere apologies.

  12. In Ohio, Attorney General Mike DeWine’s son, Pat DeWine, became an Ohio Supreme Court Justice and did not recuse from cases. He further did not recuse when his dad became Governor. They both plan to be on the ballot in 2022: Mike for Governor and Pat for Chief Justice.

    1. That’s different. They’re both elected politicians. That’s like having a President whose son is in Congress.

      1. I’m not so sure from a judicial ethics stand-point. I mean sure the voters can choose both of them, but it’s not like DeWine the younger is living up to his ethical obligations to the profession by seeking these positions.

    2. State Supreme Courts can be a joke—the Florida Supreme Court is clearly striking down ballot initiatives in order to maximize DeSantis’ chances of winning re-election.

      1. “State Supreme Courts can be a joke—the Florida Supreme Court”
        Yes i remember that from the 2000 election.

    3. I can’t believe Mike DeWine didn’t name his son Spill. Not an Eric Burdon fan, I guess.

  13. “In light of the potential for actual or apparent conflicts of interest, Jessica Garland will not serve as a law clerk for Justice Kagan while Attorney General Garland remains in office.”

    Presumably, Garland will be around for at least the next three years. What does daughter do in the mean time? Is the plan that she comes back once Garand leaves, which could be as long as seven years from now?

    1. Lucrative job at a prominent DC or NY law firm I assume.

      1. Me too. Just wondering, is she going to go back to clerk some years down the road? I guess for a SCOTUS clerkship you do that.

        1. Yeah I assume so. And those firms will have a big SCOTUS clerk bonus (although you can’t work on SCOTUS litigation for like 3 years or something IIRC).

          Plus lots of clerks, even at the lower courts, have had some practice experience* prior to clerking. Especially since the hiring competition has gotten so nuts judges are hiring years out based on 1L grades.

          *well big law associate experience at any rate.

        2. Oren Kerr did.

    2. “What does daughter do in the mean time?”

      1) Earn $250,000 each year as a lawyer at a large firm..

      2) Earn $150,000 each year as a lawyer at a boutique firm.

      3) Engage in important, fulfilling work in government, in politics, or in public interest law, establishing the foundation for a lucrative and interesting career.

      4) Teach at a law school, earning six figures while establishing a strong foundation in an enjoyable manner.

      5) Buy a van and follow the Stones tour.

  14. Talk about “daddy issues”. 😉

  15. I feel like it was probably the best course for Justice Kagan to take in the circumstances. It seems, though, that the propriety of this arrangement should have been dealt with in Merrick Garland’s confirmation process, not come back around to, effectively, get his daughter fired. There are plenty of qualified options for Attorney General. If this candidate presents a conflict of interest with somebody involved in the court, move to the next candidate. (Yes, there are probably even more qualified options for Supreme Court Clerk, but, frankly, she was there first. They shouldn’t have to fire her because her dad was granted a position that he should have been denied due to the conflict of interest….)

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