The confirmation hearings for Solicitor General Elena Kagan, nominated to replace Justice John Paul Stevens on the Supreme Court, are currently scheduled to start on Monday, June 28. We will, of course, offer extensive coverage, including some liveblogging.
Just today, Vanderbilt law professor Brian Fitzpatrick — a former law clerk to Justice Scalia and a former counsel to Senator John Cornyn (R-TX) — issued an enthusiastic endorsement (PDF) of Kagan, praising her as “a person of utmost integrity, extraordinary legal talent, and relentless generosity.” Such sentiments have been heard from many conservative corners.
So, with Lady Kaga’s confirmation more or less assured, let’s start thinking about what we can expect from a Justice Elena Kagan. Specifically, how will she handle petitions for certiorari, the requests filed by litigants who want the Court to hear their cases?
In other words: Will Justice Kagan plunge into the cert pool? And should she?
[T]he Supreme Court’s two newest justices have decided, at least temporarily, to stick with the Court’s clerk-pooling arrangement…. [B]oth Chief Justice John Roberts Jr. and Justice Samuel Alito Jr. said they will stay in the “cert pool,” as it is called, for the current term.
Roberts said he will participate on a “year-to-year basis,” and Alito said the same….
The use of the certiorari pool does, by the way, increase the power of law clerks at the Court:
In a 1997 speech when he was in private practice, Roberts said he found the pool “disquieting” in that it made clerks “a bit too significant” in determining the Court’s docket. During his confirmation hearings in January, Alito said he was “aware of the issue” surrounding the pool. He added: “We cannot delegate our judicial responsibility. But . . . we need to find ways, and we do find ways, of obtaining assistance from clerks and staff, employees, so that we can deal with the large caseload that we have.”
One could quibble with Justice Alito’s description of the SCOTUS caseload as “large.” The Court hears fewer than 100 cases each Term, and the number has been decreasing over the years. And the cert pool may actually be contributing to that decline, as Lyle Denniston suggests.
But we heart Justice Alito, so we won’t quibble.
Another consequence of the pool:
In their new book on the Court’s clerks, Sorcerers’ Apprentices, authors Artemus Ward and David Weiden chart the history and impact of the pool. At the same time the pool has increased the power of clerks in the gatekeeping function, they say, it has made clerks less candid and more timid in their recommendations. “The pool writers are going to be less candid than they would be with their own justice,” says Ward in an interview. “It has a chilling effect.”
It would be interesting if another justice were to join Justice Stevens in declining to participate in the cert pool. But would that make a clerkship with that justice less desirable? Clerks to that justice would have to spend more of their time doing mind-numbing cert review work, getting down into the factual weeds of lower-court records — instead of working on the sexy, pure legal issues presented by merits cases.
Maybe there’s a collective action problem here. Who would be willing to go first? Cf.Harvard ending early admissions.
Interesting — but not our problem. Shrug. Courtside by Tony Mauro: Pool Party [Legal Times]
Commentary: The Court’s caseload [SCOTUSblog] Cert Pool [Wikipedia]
Ed. note: The Asia Chronicles column is authored by Kinney Recruiting. Kinney has made more placements of U.S. associates, counsels and partners in Asia than any other recruiting firm in each of the past seven years. You can reach them by email: firstname.lastname@example.org.
Please note that Evan Jowers and Robert Kinney are still in Hong Kong and will stay FOR THE REMAINDER OF THIS WEEK. We still have a handful of available slots for meetings with our Asia Chronicles fans. If we have not been in touch lately, reach out and let us know when we could meet! There is no need for an agenda at all. Most of our in-person meetings on these trips are with folks who understand that improving a legal practice through lateral hiring is an information-driven process that takes time to handle correctly.
Regarding trends in lateral US associate hiring in Hong Kong, we of course keep much of what we know off of this blog. Based on placement revenue, though, Kinney is having one of our most successful years ever in Asia. We are helping a number of our law firm clients with M&A, fund formation, cap markets, project finance, FCPA and disputes openings. These are very specific needs in many cases, so a conversation with us before jumping in may be helpful. As always, we like to be sure to get the maximum number of interviews per submission, using a well-informed, highly targeted, and selective approach, taking into account short, medium and long-term career aims.
Making a well informed decision during a job search is easier said than done – the information we provide comes from 10 years of being the market leader in US attorney placements at the top tier firms in Asia. There is no substitute for having known a hiring partner since he/she was an associate or for having helped a partner grow his or her practice from zip to zooming, and this is happily where we stand today – with years of background information on just about every relevant person in all the markets we serve, and most especially in Hong Kong/China/Greater Asia. So get in touch and get a download from us this week if we can fit it in, or soon in any case!
The legal industry is being disrupted at every level by technological advances. While legal tech entrepreneurs and innovators are racing to create a more efficient and productive future, there is widespread indifference on the part of attorneys toward these emerging technologies.
When the LexisNexis Cloud Technology Survey results were reported earlier this year, it showed that attorneys were starting to peer less skeptically into the future, and slowly but surely leaning more toward all the benefits the law cloud has to offer.
Because let’s face it, plenty of attorneys are perhaps a bit too comfortable with their “system” of practice management, which may or may not include neon highlighters, sticky notes, dog-eared file folders, and a word processing program that was last updated when the term “raise the roof” was still de rigueur.