When a judge is interviewing a second-year law student for a clerkship, the judge will often ask the student to name the judge whose approach to the law they most admire, or may ask them to describe the judicial philosophy they most identify with. A top-tier applicant – even after only two years of law school — would never be so foolish as to answer his potential employer in this way:
While I have the greatest respect for the Supreme Court’s members, I cannot claim familiarity with any particular judicial philosophies the justices might possess. Nor do I have a judicial philosophy myself . . .
D.C. Circuit nominee Patricia Millett is either less qualified or less candid than the typical clerkship applicant, since that is the answer she provided, under oath, when Senator Ted Cruz asked her, ”Describe how you would characterize your judicial philosophy, and identify which U.S. Supreme Court justice’s judicial philosophy from the Warren, Burger, or Rehnquist Courts is most analogous with yours.”
Of course the average guy on the street, or even the average lawyer who practices in lower courts, might be able to get away with her answer. Such a person may not have gone to a law school where philosophical distinctions were highlighted, or she may have simply been too busy to read the many high-profile books, articles, and speeches by Justices Scalia, Breyer, Thomas, and Ginsburg on their philosophies.
But Millett’s Akin Gump bio credits her with 32 oral arguments at the Supreme Court, and she is well known in D.C. appellate circles, where matters of judicial philosophy are regular topics of conversation. For someone with her experience before the Court to be unfamiliar with the philosophy of any justice in the past half-century would fall somewhere between unprofessional and malpractice. Her clients would be justly outraged if she confessed such ignorance to them, and the Supreme Court Historical Society, on whose Board of Trustees she sits, would probably be reevaluating her role.
The alternate explanation – and I believe the more likely one — does more justice to Millett’s intelligence but less to her character. Every lawyer who knows Millett, and every lawyer who has any interest whatsoever in her D.C. Circuit nomination, knows that she is familiar with the judicial philosophies of at least a few Supreme Court justices. And they also understand why she wouldn’t want to provide a direct, truthful response to Senator Cruz’s question. But that does not justify her submission of transparently false response to a U.S. senator’s inquiry.