The Elena Kagan confirmation proceedings have caught the attention of Dr. Todd Peppers, the Henry H. and Trudye H. Fowler Professor of Public Affairs at Roanoke College. He has long held an interest in the role law clerks play in our nation’s judicial system and, in a recent op-ed piece in The National Law Journal, he discusses that role and the importance of considering it during confirmation proceedings for judicial nominees.
In “Junior Justices?” Peppers notes that, while a nominee’s own clerking background is a common subject of questioning, little attention is paid to what policies a nominee intends to adopt in the hiring and employment of law clerks within his or her chamber.
Peppers points out that “Supreme Court law clerks make recommendations regarding certiorari petitions [i.e., which cases will be heard], prepare the justices for oral argument, conduct legal research and write and edit opinions.” Given those responsibilities, he says that “it is surprising that the Senate Judiciary Committee has never thoroughly discussed the topic of law clerk hiring and utilization practices during Supreme Court confirmation hearings.”
He feels that a nominee should be questioned about the institutional rules that he or she intends to adopt regarding the selection and employment of law clerks — and whether these rules will protect against the clerks wielding undue levels of influence in chambers.
Peppers is the author of Courtiers of the Marble Palace: the Rise and Influence of the Supreme Court Law Clerk (Stanford University Press 2006). He also co-edited the forthcoming book Behind the Bench: Portraits of United States Supreme Court Law Clerks and Their Justices (University of Virginia Press 2010).
Click here to read the entire editorial.
-Written by Sharon Nanz ’09
