The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.