Clerkships, Old People, SCOTUS, Supreme Court, Supreme Court Clerks

The 40-Year-Old SCOTUS Clerk

Who's the oldest person ever to serve as a Supreme Court clerk?

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At the U.S. Supreme Court (photo by David Lat).

When it comes to Supreme Court clerk hiring, there’s a definite trend in the direction of hiring more experienced clerks. My last SCOTUS clerk hiring update prompted Professor Orin Kerr to note on Twitter the high number — more than two-thirds — of October Term 2018 clerks who will arrive at SCOTUS with two prior clerkships, rather than the traditional one.

So there are experienced clerks, and there are experienced clerks. When I announced Justice Neil Gorsuch’s inaugural class of law clerks, I noted that “they’re not kiddies,” bringing lots of experience to the table. That was especially true for Michael Davis, just profiled by Tony Mauro for the National Law Journal.

Davis clerked for then-Judge Gorsuch on the Tenth Circuit, and shortly before confirmation, incoming Justice Gorsuch asked Davis to return for another tour of duty. Davis agreed — but it was tough to close his Denver-based law firm, MRDLaw, and move back to D.C. to work for his old boss:

“I’m 39 years old and I had my own law practice in Denver,” Davis said. “I was very happy. I went from making a comfortable living to a law clerk salary of $79,000 a year, and I had to abruptly shut down my law practice, including firing all my clients and firing my employees and contractors. A lot of the lawyers in this world, they think that being a clerk for a Supreme Court justice is like the Super Bowl. It was a wonderful experience and I’m very appreciative for the experience. I’m glad I did it, but it’s not something that I sought.”

His lawyerly caveats notwithstanding, Davis sounds a tad… ungrateful? Any one of the nine justices could call me up in my nursing home and invite me to clerk, and I’d hot-rod it over to One First Street in my wheelchair.

Count me among the lawyers who view a Supreme Court clerkship as comparable to — actually, far better than — a Super Bowl championship. Both put you in the annals of history, giving you that form of immortality. But a SCOTUS clerkship puts you on the fast track to power, prestige, and pay, while the Super Bowl puts on you on the fast track to… brain damage.

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In Davis’s case, he parlayed the SCOTUS clerkship into another great legal job: chief counsel for nominations for the Senate Judiciary Committee. And he doesn’t deny the greatness of that gig:

Davis said that working on nominations for the Senate is “the only job that would interest me in the entire government.” With a staff of five, Davis vets incoming nominees. “We don’t just rubber stamp what comes in from the White House, no matter the administration,” he said.

That said, Davis does acknowledge the impressive credentials of Trump administration judicial nominees:

Davis credits White House counsel Don McGahn for sending “really high quality constitutionalist, textualist, originalist judges from all over the country” to the Senate for judicial nominations. In spite of some media reports, Davis insisted that Democratic senators have been “extensively” consulted on nominations, though he allows that there may have been some “hiccups” in the process. “This is a young administration.”

Any “hiccups” have been barely noticeable. As I’ve discussed before, judicial nominations represent one area of undeniable success for an otherwise turbulent administration. (On that subject — I’m about to leave for a long vacation, but I’m hoping to post a new nominations roundup before I go.)

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Mike Davis described himself to Tony Mauro as an “elderly” law clerk, but he’s definitely not the oldest. A trivia question: who’s the oldest person to serve as a Supreme Court clerk?

Folks have clerked for the Court after working as Biglaw partners and serving in high-ranking Justice Department jobs. But those lawyers, like Mike Davis, were generally in their 30s.

In October Term 1996, Justice Ruth Bader Ginsburg hired William Hodes, a 1969 graduate of Rutgers Law School, to serve as her clerk. Hodes took the job while on a sabbatical leave from his professorship at the Indiana University School of Law. As a 1966 graduate of Harvard College, he must have been around 50 or so when he clerked for RBG in 1996 (unless he was some sort of legal Doogie Howser — but even then, he’d still be in his late 40s).

So is William Hodes the oldest SCOTUS clerk ever — at least in the “modern era” of clerking, as opposed to the period when clerks served justices for open-ended periods — or is there someone older out there? If you know of someone older, please email me (subject line “Oldest SCOTUS Clerk”).

From Private Practice to Gorsuch Clerk to Senate Staff: A Denver Lawyer’s Career Whirlwind [National Law Journal]

DBL square headshotDavid Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.

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