Bench Memos

Law & the Courts

Is It Scandalous for Justice Thomas to Support a Former Clerk?

Last week, the Washington Post reported that Justice Clarence Thomas “is working behind the scenes” to support the nomination of Neomi Rao to the U.S. Court of Appeals for the D.C. Circuit. According to the report, Justice Thomas spoke to at least two Senators who had concerns about the Rao nomination. Some are scandalized by this report. Should they be? I don’t think so.

As I noted in this Twitter thread, it is incredibly common for judges to share their thoughts on prospective judicial nominees. The vetting processes done for prospective nominees performed by the White House, the American Bar Association, and various state advisory commissions (such as the advisory commission for Ohio on which I’ve served) routinely involve discussions with sitting judges about former clerks and attorneys who have appeared before them. I am also aware of numerous instances across multiple administrations in which sitting judges have, on their own initiative, shared their views of who should or should not replace them with the White House.

It is not scandalous for a judge to provide this sort of input. Indeed, it would be scandalous were such input not solicited as part of the nominee vetting process. Judges are often in a position to offer valuable insight into the temperament, character, and capabilities of prospective nominees, and we should want these perspectives to be considered by those evaluating prospective members of the federal bench, whether in the White House or in the Senate.

I do not know the extent of Justice Thomas’s conversations with various Senators beyond what has been reported, but there is nothing wrong with his willingness to speak to senators. Neomi Rao clerked for Justice Thomas on the Supreme Court and has co-taught classes with him at the George Mason University Antonin Scalia Law School. Any vetting process that did not include his perspective would be incomplete. So the fact that Justice Thomas may have spoken with senators who had concerns is far from scandalous. It’s part of how we should want the process to work.

Jonathan H. Adler — Mr. Adler is an NRO contributing editor and the inaugural Johan Verheij Memorial Professor of Law at Case Western Reserve University School of Law. His latest book is Marijuana Federalism: Uncle Sam and Mary Jane.

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