Just a quick follow-up to yesterday’s discussion of whether Justice John Paul Stevens’s failure to hire a full complement of law clerks for October Term 2010 might shed light upon his retirement plans. In today’s New York Times, Adam Liptak has an excellent article on the subject. It begins:
A Supreme Court clerkship is a glittering prize and the ultimate credential in American law, one coveted by the top graduates of the best law schools. Until recently, though, only connoisseurs of ambition and status followed the justices’ hiring process closely.
It turns out those hiring decisions may be a sort of early warning system for hints about the justices’ retirement plans. “We’ve started tracking Supreme Court hiring in real time,” said David Lat, the founder of Above the Law, a legal blog.
Thanks for the shout-out, Mr. Liptak! When it comes to being “connoisseurs of ambition and status,” we plead guilty.
Justice David H. Souter’s failure to hire clerks this spring accurately signaled his decision to step down. On Wednesday, the court confirmed that Justice John Paul Stevens, who is 89, has hired only one clerk, instead of the usual four, for the term starting in October 2010. That ignited speculation that Justice Stevens may be planning to step down next summer.
Some thoughts on what’s going on here, after the jump.
Here is one theory about what Justice Stevens is up to, from the Times article (a theory we tend to agree with, based on what we’ve heard from our own sources):
There is, of course, nothing to prevent Justice Stevens from hiring additional clerks later on. The newest member of the court, Justice Sonia Sotomayor, hired four clerks in short order after her confirmation last month.
The alternative is to hire clerks now for a job that might evaporate later, something Justice Stevens would not do lightly, people who know him said.
“Justice Stevens is a man who cares deeply about treating people with respect,” said Christopher L. Eisgruber, the provost of Princeton University, the author of “The Next Justice: Repairing the Supreme Court Appointment Process” and a former clerk to Justice Stevens.
And here’s some good context (plus another ATL shout-out):
Justices typically try to space out their retirements. Even if Justice Stevens’s decision to hire a single clerk indicates a tentative inclination to step down, he could well change his mind.
Justice Ruth Bader Ginsburg underwent surgery for pancreatic cancer in February, prompting speculation that she might consider retirement. But Justice Ginsburg, who is 76, did not miss a day on the bench, has maintained an active public schedule and has said she intends to continue to serve for some time.
It used to be relatively commonplace for justices to hire clerks far in advance and later dash their hopes with news of retirement. That could be quite a blow to a young ego, given the life-altering cachet of the position.
On Above the Law, Supreme Court clerks are called the Elect.
It seems that Justice Stevens is keeping his options open — and, because he’s a kind and thoughtful man, he doesn’t want to lead on any young legal eagles by giving them clerkships that ultimately evaporate. Landing a Supreme Court clerkship, but then having your justice retire before you officially join the ranks of the Elect, would be like hitting the $325 million Mega Millions jackpot, before learning that your winning ticket is invalid. [FN1]
Justice Stevens’s failure to hire clerks is a signal that he’s thinking about retiring, but it’s not definite. So… will he stay or will he go?
In our reader poll, over 80 percent of you expressed the view that JPS will retire at the end of October Term 2009 (i.e., the upcoming Term). This is certainly possible, although our gut tells us he’ll stick around for a little longer (and hire the outstanding clerks for OT 2010 at a later date). As noted in yesterday’s AP article, if Justice Stevens sticks around a little longer, he’ll break some SCOTUS records:
Stevens also is nearing two longevity records. When he joined the court, he replaced the longest-serving justice, William O. Douglas, and would need to serve until mid-July 2012 to top that service record. He would surpass Holmes as the oldest sitting justice if he were to remain on the court until Feb. 24, 2011.
But this is just guesswork on our part (and, for that matter, on everyone’s part). Stay tuned.
[FN1] For the record, it’s worth noting that accommodations are often made for displaced Supreme Court clerks. They are often picked up by other justices, perhaps because the psychological blow of losing a SCOTUS clerkship you thought you had, and never getting another one to replace, would be more than a human being should have to bear.
Liptak includes one example in his article:
Peter J. Spiro, now a law professor at Temple University, recalled hearing that Justice William J. Brennan Jr. was stepping down for medical reasons just a week before his clerkship was to have begun in 1990.
“Twenty years later, I recognize it as a rich kid’s problem in the grand scheme of things,” Professor Spiro said, adding that Justice Brennan was quite gracious. “At the time, it was extremely disappointing.”
Professor Spiro ended up clerking for Justice Souter, who succeeded Justice Brennan. “I lucked out in the end,” he said. “I had a wonderful year.”
Another example of an orphaned clerk who found a home at One First Street: Alex Kozinski, years before his apotheosis to the federal judiciary, landed a clerkship with Justice Douglas, lost it when Justice Douglas announced his retirement, but later landed a clerkship with Chief Judge Burger (although the Douglas-to-Burger move was chronological and not causal, as Judge Kozinski has explained to us).
A Justice Slows His Hiring, and Some Wonder About His Future [New York Times]
Earlier: Supreme Court Retirement Watch: Justice Stevens?