In a so-called “cover story” on Slate yesterday, Dahlia Lithwick and Mark Joseph Stern complain that Justice Thomas’s “fingerprints are all over the executive branch,” as “he’s trained a small army of acolytes”—his former law clerks—“to implement his larger project of shrinking the regulatory state and fighting back against the supposed chokehold of political correctness.”
Earth to Slate: It’s not news that former Supreme Court law clerks often go on to positions of significant influence in ideologically compatible presidential administrations. If you take a look at the Obama or Clinton administrations, you’ll find more than a few. That doesn’t mean that they’re out to “implement” some imagined “larger project” of their former bosses.
Justice Thomas has been on the Court for more than 25 years, so he has 100 or more former law clerks. Lithwick and Stern identify a grand total of eight who they say are now in the Trump administration. On a quick check, it appears that two of those eight are still awaiting confirmation and remain in private practice.
Lithwick and Stern also identify two former Thomas clerks—both state supreme court justices—who are “awaiting appointment to the federal judiciary” and two others—my Bench Memos colleague Carrie Severino and Laura Ingraham—who they complain are working from the outside to assist the Trump administration.
Lithwick and Stern can’t even bother to get basic facts right. They assert that Justice Thomas “is the only sitting justice never to have brought on a clerk who previously served under a judge appointed by a president from the opposite party.” They cite a seven-year-old New York Times article in support of that proposition. But a quick check of Wikipedia would have revealed that Thomas has hired three clerks since then who had clerked for Democratic appointees. (Plus, one of Thomas’s first clerks had previously clerked for JFK appointee Byron White.) More broadly, on the topic of ideological rigidity, what’s the record of liberal justices in hiring Federalist Society members. (Federalist Society membership is a far better indicator of conservative or libertarian judicial philosophy than a record of having clerked for a Republican appointee to a lower court.)