Seeking for Righteousness

The Personal Blog of Kaimi Wenger

More on Newfield

Jack Newfield’s Nation article has now entered the nomination debate which means it’s time to further dissect on the merits (or lack thereof) Newfield’s use of unsuccessful clerkship interviews as evidence of ideology. The article suggests that Estrada’s bias came out in comments or impressions given in interviews with prospective Kennedy clerks; as further proof of bias, the article notes that neither interviewee was hired.

Sour Grapes?

As a threshold matter, it certainly seems kind of odd to rely so much on anecdotes from applicants who were not accepted. After all, might not scorned applicants have biases of their own? It seems reasonable that these guys might be (1) bitter about not getting a Kennedy clerkship and (2) ready to blame it on an underling. It’s hard to impugn Kennedy for your rejection–if he was so shortsighted as to pass on you, why would you want to work for him?–while it’s easy to blame his evil law clerk who cruelly sabotaged your otherwise excellent application. Not to say that rejected applicants could never be a source of accurate information, but the tone of the piece sure reads to me like sour grapes.

Nobody clerks for the Supreme Court!

Okay, that’s a tad exaggerated, but the fact is that even highly qualified applicants have only a miniscule chance of clerking for the Supremes. They get hundreds (thousands?) of applications, and they pick four clerks. The odds are not in anyone’s favor. Let’s be clear here: Not-clerking for the Supreme Court is not the exception. Not-clerking for the Supreme Court is the rule, kind of like not-winning the lottery or not-dating a supermodel. Can anything at all be inferred from two failed applications? Probably not.

Newfield’s gives no indication as to what these applicants’ qualifications were

The implication is there — “Why didn’t Kennedy hire these nice people?” But the fact is that we don’t know whether they were Yale Law Journal Editor in Chief, or middle-of-the-pack students from Fordham. One of the two was brushed off after he tried to use acquaintance with Estrada as an inside track; Estrada said he might not fit in with the judge (sounds like exactly what I would tell an unqualified applicant if they tried to use me as an inside track to my judge). The other apparently made the first cut, which suggests that he (along with 20 or 30 others who made that cut) were rather qualified candidates. But most people who make the first cut still don’t get hired.

Given Newfield’s angle, I would think if either of the two had been hired by another Justice, he would have mentioned it (along the lines of “See, they’re qualified, Ginsberg hired one later”). It looks like these two applicant’s didn’t get hired by any of the Justices. Yep, O’Connor didn’t hire them. Scalia, Stevens, and Rehnquist passed. Ditto Thomas and Souter and everyone else. Oh, and Kennedy also didn’t hire them — but that was solely due to the extreme ideology of his law clerk.

Is it possible that they just weren’t qualified for the job?

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September 26, 2002 - Posted by | Uncategorized

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