Notice & Comment

D.C. Circuit Review – Reviewed: “All-Purpose” Feeder Judges

The D.C. Circuit — hurrah! — did not decide any cases this week. Even if it had, no doubt the big news would be Judge Kavanaugh’s* upcoming confirmation hearings. That is the context for this week’s post.

There is something about Judge Kavanaugh’s record that I don’t think has received enough attention. He is a rarity. In particular, he is an “all-purpose” feeder judge — a circuit court judge who sends clerks to essentially all the Justices. As I observed a while back, Kavanaugh’s “clerks have been hired by Chief Justice Roberts and Justices Stevens, O’Connor, Scalia, Kennedy, Souter, Thomas, Breyer, Alito, Sotomayor, Kagan, and Gorsuch.” I believe the only (relevant) Justice he has not sent a clerk to is Justice Ginsburg.

There aren’t a lot of judges like that.

On the D.C. Circuit, Chief Judge Garland’s “clerks have served 10 justices: Roberts, and Justices Harry A. Blackmun, Breyer, Ginsburg, Kagan, Kennedy, O’Connor, Sotomayor, Stevens and David H. Souter.” Judge Griffith also falls in this category; according to Wikipedia, he he has sent clerks to Chief Justice Roberts and Justices Thomas, Breyer, Alito, Kagan, Kennedy, Souter, and Stevens. Judge Williams has sent clerks to Chief Justice Roberts and Chief Justice Rehnquist, as well as to Justices Thomas, Ginsburg, Alito, Sotomayor, Brennan, Kennedy, Marshall, Scalia, Souter, and Stevens. Judge Randolph, for his part, has sent clerks to both Chief Justices, and also to Justices Ginsburg, Kennedy, O’Connor, Scalia, Souter, and Stevens. Judge Ginsburg has sent clerks to both Chief Justices and to Justices Thomas, Ginsburg, Breyer, Alito, Kennedy, Marshall, Scalia, Souter, and Stevens. At the same time, Judge Tatel has sent clerks to Chief Justice Roberts and to Justices Ginsburg, Breyer, Sotomayor, Kagan, Brennan, Kennedy, O’Connor, Souter, and Stevens. Judge Srinivasan has sent clerks to Chief Justice Roberts, and to Justices Ginsburg, Sotomayor, and Kagan. Judge Silberman, it appears, has sent clerks to both Chief Justices, as well as to Justices Thomas, Breyer, Kennedy, O’Connor, and Scalia. And Judge Sentelle has sent clerks to both Chief Justices, and also to Justices Thomas, Breyer, Alito, Kennedy, Scalia, and White (namely, Justice Gorsuch!). Finally, Judge Brown (retired), for whom I clerked, sent clerks to Chief Justice Roberts and to Justices Ginsburg, Alito, and Sotomayor.

Outside of the D.C. Circuit, Judge Wilkinson (on the Fourth Circuit) certainly is an all-purpose feeder judge, as is Judge Sutton (on the Sixth Circuit). Before he became a justice, Judge Gorsuch was one too. Judge Cabranes (on the Second Circuit) also falls within this group. And I’m probably missing some other judges.

I haven’t done a scientific study of all of this — that’s what Empirical SCOTUS is for! It would be interesting to know, for instance, not only who the all-purpose feeders are, but also which Justices those judges most often send clerks to (Kavanaugh, for what it is worth, sends the largest number of his clerks to Chief Justice Roberts, followed by Justice Kennedy). And although I find it heartening, I do not claim that this sort of cross-ideological hiring is always the right way to go. After all, I’m sympathetic to Justice Thomas’s observation about not aggravating pigs.

But — and this is my point — I do think it says something about how Judge Kavanaugh is viewed by the Supreme Court that Justices Thomas and Sotomayor both respect him enough to hire his clerks. And Justices Breyer and Alito. And Justices Kagan and Gorsuch. And the Chief Justice too. This does not happen by accident.

Anyway, enjoy the weekend; next week will be full of long days.

 

* I had hoped to get through all of Judge Kavanaugh’s opinions this summer. Alas, I was too optimistic. Nothing in what I have seen, however, undermines my conclusion that “I believe Judge Kavanaugh will serve the nation well on the Supreme Court.” That said, my disclaimer applies: I don’t claim to be neutral — I know and like him.

Note: post updated — I fixed the list of Justices.

 

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