The Volokh Conspiracy

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The Way To A Circuit Court Nomination Is To Lose A Landmark Supreme Court Case

President Biden nominated the non-prevailing attorneys in Dobbs and SFFA to the First and Fourth Circuits, respectively.


It seems the primary driver behind many of President Biden's judicial nominees has been concerns for diversity. (We'll see if a similar factor governs who replaces Biden if he does not seek a second term.) But for at least two of Biden's circuit court nominees, a credential has been to lose a landmark Supreme Court case.

Julie Rikelman argued Dobbs, and was confirmed to the First Circuit in June 2023.

Today, President Biden nominated Ryan Park, the North Carolina Solicitor General, to the Fourth Circuit. Park argued Students for Fair Admission v. UNC.

An Article III confirmation is something of a consolation prize.

Park graduated from Harvard Law School in 2010. He clerked for three years:

He served as a law clerk to Justice Ruth Bader Ginsburg and Justice David H. Souter on the U.S. Supreme Court from 2013 to 2014, for Judge Robert A. Katzmann on the U.S. Court of Appeals for the Second Circuit from 2011 to 2012, and for Judge Jed S. Rakoff on the U.S. District Court for the Southern District of New York from 2010 to 2011.

One would think that he was hired by Justice Ginsburg, but that is not accurate. He was hired by retired Justice David Souter, and was detailed to Justice Ginsburg. I think it is misleading for Park to list Ginsburg first, and Souter second. For example, Justice Gorsuch was a White clerk, detailed to Kennedy, and Judge Sutton was a Powell clerk, detailed to Scalia.

This is not the first time I've offered this criticism of Park. Way back in January 2015, Park was profiled in The Atlantic. He wrote all about his experience with RBG, but never actually mentioned he was a Souter clerk. At the time, I observed:

Is this bad etiquette to slight the Justice you work for, and only mention him in passing in the author bio? I have no doubt Park did extensive work for RBG, and worked closely with her, but the standard practice is to focus on the judge who hired you. This is almost as bad as some people who say they clerked for Justices Breyer or Alito, when they actually clerked for Judges Breyer or Alito (you know who you are!).

Ditto for people who clerked for "Justice Breyer" before his elevation to the Supreme Court.

Poor Justice Souter. Not even his former clerks give him his due.

One final note. Does Park have the twelve years of experience that the ABA requires? If we exclude the three years of clerking, Park would be right at eleven years. But who cares what the ABA thinks!