The Clarence Thomas Clerk Mafia: Legal Brain Trust Of The Trump Administration
Justice Clarence Thomas: legal godfather of the Trump administration.
Justice Clarence Thomas
You can learn a lot about a judge based on the law clerks that she hires. And you can also learn a lot about a judge from her clerks’ post-clerkship careers.
What can we say about Justice Clarence Thomas based on the career trajectories of his former law clerks? We can safely call him the legal godfather of the Trump administration.
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Yes, President Donald Trump’s first Supreme Court appointee, Justice Neil Gorsuch, is a former law clerk to Justice Anthony M. Kennedy. But if you look at the Trump administration as a whole, you’ll see a proliferation of CT clerks in positions of great power and prominence. Many former SCOTUS clerks hold positions in Trumpworld, but the Thomas clerks predominate.
If you don’t believe me (perhaps because you don’t share my admitted textualist and originalist leanings), take it from a pair of prominent progressive legal commentators, Dahlia Lithwick and Mark Joseph Stern. In The Clarence Thomas Takeover, a comprehensive and well-argued Slate piece (that’s being gleefully circulated among Thomas clerks right now), Lithwick and Stern make a strong case for the dominance of the CT clerk mafia:
Everywhere you turn in Trumpland, you’ll find a slew of Thomas’ former clerks in high places. They are serving in the White House counsel’s office (Greg Katsas, John Eisenberg, David Morrell); awaiting appointment to the federal judiciary (Allison H. Eid, David Stras); leading the departments of the Treasury (Heath P. Tarbert, Sigal Mandelker) and Transportation (Steven G. Bradbury); defending the travel ban in court (Jeffrey Wall); and heading the White House Office of Information and Regulatory Affairs (Neomi Rao). Thomas clerks are also working with dark money groups to execute Trump’s agenda (Carrie Severino) and boosting him in the far-right media (Laura Ingraham).
To be sure, clerks to other conservative justices also occupy top posts in the Trump administration. On this list of 26 White house Counsel staffers, for example, there are seven former SCOTUS clerks (three Thomas clerks, two Scalia clerks, and two Alito clerks).
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But numbers don’t tell the whole story. There’s also the issue of sensibility and attitude, as explained by Professor Steve Vladeck:
Stephen Vladeck, who teaches law at the University of Texas and serves as a Supreme Court analyst for CNN, says it’s instructive to compare the career paths of clerks who worked for Thomas and those who served under Scalia. The latter, Vladeck says, have gravitated more toward the conservative establishment—institutions like law schools and legal foundations. The Thomas clerks, who have “a bit more of a libertarian or populist streak,” are a more logical fit for the key legal jobs serving the Trump White House. It is the Thomas alums that have risen to prominence in the past six months, and they are working zealously to put their mentor’s ideas into action.
And this makes sense, Lithwick and Stern argue, given the philosophical similarities between Thomas and Trump:
Donald Trump’s crude understanding of the United States government aligns startlingly well with Thomas’ sophisticated political worldview. The president’s belief that the commander in chief can wage war in whatever way he wishes corresponds neatly to Thomas’ theory of the “unitary executive,” and his visceral hostility to the Affordable Care Act dovetails with Thomas’ abhorrence of the federal social safety net. The two men also share an absolutist opposition to gun control, a belief that the government may favor and promote Christianity over other faiths, a deep skepticism of the elite academic establishment, and a nostalgia for the perceived America of yesteryear. Both take a hard-line stance against illegal immigration and show little concern for the rights of individuals accused of terrorism. Thomas is a thinker and Trump is a feeler, but together they have arrived at similar conclusions. They want less government, a more authoritarian executive, more God, fewer racial entitlements, and more guns.
One can agree or disagree with Lithwick and Stern’s normative judgments, but it’s hard to argue with their bottom line: Justice Thomas and President Trump think alike, and even if there’s not much CT can do by himself to help DJT (other than cast votes for the administration), he has certainly provided President Trump with lots of brainpower — lawyers who are very smart, and very conservative:
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Thomas is known to be ideologically rigid when it comes to hiring (and in everything else). Prior to 2013, every clerk he’d brought on during his Supreme Court tenure had first served under an appellate-level judge who’d been appointed by a Republican president.* Even Scalia occasionally hired “counter-clerks,” liberal-leaning men and women who had clerked for Democratic appointees on lower courts. Thomas has expressed no interest in this kind of ideological diversity. (To his credit, he does value educational diversity, intentionally hiring clerks from lower-ranked schools. Compare that with Scalia, who was openly biased against schools outside the T14.)
[UPDATE (6:10 p.m.): Actually, as Ed Whelan just pointed out, “a quick check of Wikipedia would have revealed that Thomas has hired three clerks since [the 2010 New York Times article the authors rely upon] who had clerked for Democratic appointees. (Plus, one of Thomas’s first clerks had previously clerked for JFK appointee Byron White.)”]
Interestingly enough, the Thomas clerks serving in the Trump administration hail mostly from T14 schools (just as President Trump himself graduated from elite U. Penn, his populist rhetoric notwithstanding). Of the dozen CT clerks name-checked by Lithwick and Stern in the first blockquote above, eleven out of twelve went to T14 schools: three from conservative-leaning U. Chicago; two each from Harvard, Yale, and Chicago; and one each from UVA and Michigan. (The exception is Justice Dave Stras, a graduate of Kansas Law — a fact that could help his SCOTUS chances, given the constant complaints about too many Harvard/Yale justices on the Court.)
As the old saying (or book title) goes, “Ideas have consequences.” You might not like all the consequences of a Trump presidency for the legal world (or world more generally) — but when it comes to many of the ideas, credit Clarence Thomas.
P.S. You should definitely read Lithwick and Stern’s full article, in which they note — correctly, in my view — that “liberals consistently underestimate Thomas’ influence.” Maybe the Trump administration will bring an end to that.
The Clarence Thomas Takeover [Slate]
Earlier: Supreme Court Clerk Hiring Watch: To Know A Judge, Know Her Clerks
David 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.
