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Thomas Clerks Need Not Apply?

According to Gordon Smith at Conglomerate, another law professor relayed the following anecdote to a friend about to enter the legal teaching market:

at the preliminary screening level it's often the case that strong opposition from one member of the Appointments Committee is enough to knock you out. I know of a case where one extremely strong candidate didn't get a call-back at a lower-tier school because one member of the Appointments committee said that she simply couldn't even consider hiring someone who'd worked for Justice Thomas.
I am aware of a virtually identical incident — I wonder if it is the same one? [Update: I've since confirmed that these anecdotes are from two different schools.]

Thankfully, many (most?) schools do not have influential faculty members who share this view. As a result, the legal academy is sprinkled with many former Thomas clerks, including (but not limited to) Nicole Garnett (Notre Dame), Jim Chen (Minnesota), John Yoo (Berkeley), Michael O'Neill (GMU), Stephen Smith (Virginia), John Eastman (Chapman), Gregory Maggs (George Washington), Sai Prakash (USD), and Allison Eid (Colorado). (Apologies to those I left off the list. I compiled this list quickly from memory.)

(Hat tip: Althouse)

UPDATE: A reader notes that the University of Georgia had a similar controversy when a determined minority on the faculty blocked the appointment of two former Supreme Court clerks on ideological grounds. The incident, and other controversies at Georgia, were covered here. [Note: In comments below, Peter Appell reports that Georgia made no offers the year of the aforementioned controversy, but subsequently made an offer to another Thomas clerk, David Stras, who now teaches at Minnesota.]

ANOTHER UPDATE: Tom Smith adds some thoughts here.

Craig Oren (mail):
Well, Juan, that's why the school is a lower-tier school!
6.25.2005 7:44pm
Juan Non-Volokh (mail) (www):
Touche!
6.25.2005 8:04pm
erp (mail):
That'll teach her to aim higher.
6.25.2005 8:07pm
Larry (mail) (www):
Which of CT's former law clerks are currently homeless or unable to work as lawyers ?
6.25.2005 8:48pm
Anon (mail):
Larry's on to something. Discrimination isn't problematic if the alleged victim of discrimination isn't homeless, and Title VII and the ADA should be amended immediately to reflect this.
6.25.2005 10:56pm
RecentGrad:
For this to be "newsworthy," I'd want more detail. Post says that Volokh knows someone who knows someone else who heard about this incident where this one person said that she wouldn't hire this other person because he clerked for Thomas....

It's believable, but buried in layers of anonymity and secondhand information.

Maybe this was an offhand comment that wasn't meant to be taken seriously... maybe it was a joking reference to another former CT clerk they'd hired who turned out to be horrible... maybe the professor is Anita Hill's best friend... or maybe this committee person is a nasty close-minded liberal type, which seems to be the implication of the post.

Based on the shortage of detail and the lack of context, my reaction is "so what?"
6.25.2005 11:12pm
Anon (mail):
A somewhat relevant incident happened a few years ago at UGA law. I believe it was the 2002-03 school year.

A (white male) Thomas clerk who received a unanimous positive vote from the faculty hiring committee got blackballed (by secret vote) by the entire faculty. In addition, another (white male) clerk for a conservative justice (Rehnquist, I believe) got the same treatment. There was never any indication of why, due to the secret nature of the vote.

It caused quite a stir around the school, and was at least part of the reason why the then-Dean was booted.
6.25.2005 11:17pm
Smashingworth (mail):
Peter Bo Rutledge, a former Thomas clerk, teaches at my school, Catholic University School of Law, and he's beloved among the students (especially the ladies, who find him very handsome!). I've taken a class from him, and he's fantastic.
6.25.2005 11:47pm
CrazyTrain (mail):
he's beloved among the students (especially the ladies, who find him very handsome!).

Yeah, because "the ladies" don't appreciate intellect and teaching ability, they just love a handsome guy, and are only going to law school to find a husband.

6.25.2005 11:54pm
Adam (mail) (www):
Which would be news to Bo, a classmate of mine at Chicago, since he's married. Brilliant guy and a total class act.
6.26.2005 12:28am
Anonymous:
Other Thomas clerks in academia:

Caleb Nelson, at the University of Virginia.

Thomas Lee (son of former SG Rex Lee), at BYU.

Stephen McAllister, Dean at Kansas.
6.26.2005 1:42am
UGA LAw (mail):
Correct about UGA law not hiring both a Thomas and Rehnquist clerk. I believe the Thomas clerk is the same Rutledge fellow at Catholic.
6.26.2005 10:05am
A. Reader:
Wow, so like, a friend totally told you about his friend who didn't get a job offer, and since he clerked for Thomas it's like, totally obvious that that's why he didn't get an offer? That's good enough for me. Just more evidence of the vast left-wing conspiracy.
6.26.2005 12:10pm
Juan Non-Volokh (mail) (www):
In the case I was aware of that I referred to above, during an appointments committee meeting, a faculty member said that a given candidate should not be considered becuase s/he clerked for Justice Thomas. I was told about the story by two faculty members who were in the meeting and heard the remark.

I cannot speak to the basis for Gordon Smith's correspondent, but I have confirmed that his account relates to another incident. I do not know whether it was about the widely reported Georgia incident linked above or a third instance.

6.26.2005 12:30pm
A. Reader:
So (1) a comment was made, and (2) an offer was not forthcoming. Remind me, just what causal relationship is that supposed to be evidence of again? It certainly sounds like anecdotal evidence that some professors don't like "conservatives," which might be outrageous until you remember that there are other faculty members who don't like "liberals." But you assume that the decision not to make an offer was directly related to a remark that was made during some meeting, when in fact there could be any number of reasons an offer was not made.

Same criticism applies to Gordon Smith's story, which you unsurprisingly "cannot speak to the basis of" (not that that stopped you from dedicating a post to it on the blog).

Don't get me wrong, I do enjoy reading your conspiracy theories. But it's unfair to your readers to imply that there is any substance to your constant claims of right-wing academics being victimized when in fact it all boils down to "a friend of a friend of a friend didn't get an offer, and also somebody on the faculty said they don't like Thomas clerks."
6.26.2005 1:36pm
Anon (mail):
"A. Reader" is ironically named, because he/she isn't reading. "What causal relationship" he/she asks? And the answer is in the original post, where a law professor states that the offer wasn't forthcoming because the veto came from a faculty member who said she didn't want to work with Thomas clerks.

There are conservative law professors who don't like liberals? Almost certainly, but I'd like to see evidence for a liberal professor's exclusion at any secular school on the basis of politics. Criminy, even Chicago hired even Catherine McKinnon.
6.26.2005 2:15pm
Juan Non-Volokh (mail) (www):
I have not claimed that right-wing academics are "victimized." To the contrary, I have suggested that some conservatives use ideological bias as an excuse to cover for their own inadequacies. I also believe that right-wing academics who do quality academic work will succeed -- just as Thomas clerks have thrived in academia even if they face narrow-minded, ideological opposition at a handful of schools. My primary complaint is that this sort of bias is antithetical to the ideals to which liberal academic institutions should aspire and undermines their education mission.

For more of my thoughts on the subject, see here.

6.26.2005 2:36pm
Larry (mail) (www):
Maybe if you people provided details about WHICH faculty member nixed the CT clerk it would be credible. Now all you have is just a bunch of right-wing whining.
6.26.2005 3:06pm
Frank Snyder (mail):
>>Maybe if you people provided details about WHICH faculty member nixed the CT clerk it would be credible.<<

The problem is that all faculty hiring deliberations are secret, and violations of that rule can lead to serious discipline, not to mention an incredibly flame-up within the faculty. Thus, when one sees a violation of either law or fair play, the choices are to keep quiet or talk in generalities.

I'm the source of Gordon's quote. I did not intend it for publication. I was offering advice to a particular individual. I can vouch for the story, but cannot give details, other than to say that the incident was neither the one JNOV mentioned nor the Georgia incident. Since I cannot give details, you're obviously free to disbelieve that it happened, just as you're free to disbelieve another experience, in which a wonderful female candidate was knocked out because people suspected she'd want to spend too much time with her family.

The point of my advice was not that religious Republicans can't succeed in academia. The point was that anything that identifies you as one is a negative that will have to be dealt with. Some schools will simply not consider you; at others, you will start the process with a couple of strikes against you. At others, no one will care. The advice I gave to the particular individual was that if you want to maximize the number of people who talk to you at the Meat Market, don't put anything on your resume that suggests you might have actually voted for Bush.

The fact is that at many schools, the offer goes not to the best candidate, but to the good candidate who is acceptable to the widest group.
6.26.2005 4:03pm
Alaska Jack (mail):
"just a bunch of right-wing whining"

Please keep the tenor of comments here a little higher. Thanks you.

- AJ
6.26.2005 4:37pm
Tim Zinnecker (mail):

I had a somewhat similar experience when I attended the AALS faculty hiring conference in consecutive years. During an interview with the appointments committee of a law school (which will remain anonymous) with which I had interviewed a previous year, I was asked why I thought I had not yet landed a teaching position. I suggested that many law schools lean to the left and might favor like-minded candidates, so those schools might hesitate to interview/hire a candidate whose c.v. reflected "a law degree from BYU, membership in a large Southern Baptist church, and a federal clerkship with Edith Jones." To which, the interviewer replied, "try reversing the order." Perhaps the sad part of the story is that the interviewer confessed (prompted by my pointed, but polite response question) that the anti-Jones bias was not based on any personal knowledge (e.g., reading opinions) but by views expressed by the questioner's friends.
6.26.2005 5:29pm
otto (mail):

The fact is that at many schools, the offer goes not to the best candidate, but to the good candidate who is acceptable to the widest group.

That seems to be true in academia, and perhaps life, in general.


"a law degree from BYU, membership in a large Southern Baptist church, and a federal clerkship with Edith Jones."

Why would you put your religious affiliation on job application matterials?
6.26.2005 6:25pm
Larry (mail) (www):
I stand by my comment that this entire thread is right-wing whining. (The left does the same thing, too, sometimes.)

1)It obviously intended to claim that people with a specific political belief are being oppressed;
2)that political belief is known as "right wing" since most people assume that Thomas only hires "right wing" clerks. Indeed, Thomas is the darling of the "right" and his clerks that don't teach or work in law firms or the government tend to be associated with right wing causes.

So far, people have nothing. They have a bunch of vague conspiracy theories about some schools won't hire Thomas clerks. But try these one on: 1) maybe their scholarship is second-rate; 2) maybe they come off as arrogant and mean; or 3) maybe the school is really prejudiced against them because of their race or sex. Lets face it folks, people get hired because they are liked or likable. Maybe these people just are not likable.

Until you can name a specific faculty member that has vetoed every Thomas clerk that has applied, there really is no evidence of any conspiracy besides just a bunch of people who wish that their candidate was hired.
6.26.2005 7:23pm
Juan Non-Volokh (mail) (www):
Larry --

I don't understand your last comment. As I thought I made clear in my last post, I did not claim that certain people are being "oppressed." That was part of the reason for listing some of the many Thomas clerks who have excelled in academia. My claim was simply that there are those in academia who have a decidedly illiberal appraoch to hiring. The primary losers in these cases are the academic institutions themselves. Yet if some faculty members are willing to blackball candidates who clerked for the wrong justice, I do not think it is a stretch to believe they will be equally hostile to those with similarly "tainted" resumes but who lack the safety net provided by having a Supreme Court clerkship on their resume.

As for the anecdotes, in the one of which I am aware, I will spell it out: Yes, the candidate was nixed on the committee, and yes, it was due to the CT clerkship. (As is the case at many schools, the appointments committee operated by consensus.) That is what two members of the committee told me separately. Had I not been told this by two separate individuals, I would not have reported it. I also think the Georgia incident was well-publicized, and well-known, and I am not aware of any contrary accounts (though I would be happy to post them if they exist).

I wholly agree that some conservatives wish to blame their academic failures on ideological bias. I also believe that talented and determined conservatives can excel in academia. But just because many cry "wolf," does not mean there are no wolves. (Or, to quote Johnny from WKRP, "Just because I'm paranoid, doesn't mean they're not out to get me.")
6.26.2005 7:51pm
Robin Roberts (mail) (www):
The incident you describe JNOV is troubling not merely that it happens, but that a faculty member would be so secure in their bigotry that they would feel comfortable expressing the thought.
6.27.2005 1:05am
Larry88 (mail) (www):
There are many problems in academic hiring and tenure, but I don't think that saying that these are due to a "liberal" bent completely describes it. Faculty are chosen, as you say, on the basis of how people expect to get along with a prospective hire. Therefore, people who are complete oddballs or freaks are generally excluded, regardless of their publication record. For example, how many people are on law school faculties who have poor hygiene or absolutely refuse to make small talk with others?

The reason that I doubt that any faculty members have a per se anti-Thomas-clerk rule (and therefore, it seems a given school does) is because nobody has ever come forward with such an explanation. Now, I could see excluding Thomas clerks if they have never published anything besides a bunch of Federalist Society platitudes or have not demonstrated that they are in command of constitutional law beyond the level of a "legal backgrounder" put out by the WLF, but I don't think any of these people exist. Unless and until I can directly query a faculty member who has a "No Thomas clerk" rule, the stories remain suspect. I am not assuming that you are lying to me, but you are, in essence, repeating something that has been filtered though at least three levels of hearsay, and is bound to have lost something in the translation.

I don't think that hating Thomas clerks is bigotry, but rather just making assumptions about people based on their resume. Heck, we all do this. Indeed, resumes are written to deliberately impress upon the reader that the person whose resume it is fits into certain categories of people. That is why people (as evidenced by the comments here) will put their religion on their resume (or strong indicia of their religion), sexual orientation, race, or even political party. They don't have to do this. In fact, if Thomas clerks are free to take that item off their resume of they wish.
6.27.2005 8:51am
Peter Appel (mail):
I teach at UGA Law. Routledge was one of the people we considered a few years ago and didn't extend an offer to. We didn't extend an offer to any candidate that year; there were lots of reasons for that. The next year we extended an offer to David Stras, a former Thomas clerk, who is now at Minnesota.
6.27.2005 9:14am
Larry88 (mail) (www):
Prof. Appel, It would be much better if you would just claim that Routledge was blackballed because he clerked for Thomas. This way everyone's paranoia would not be dampened. If I were on your tenure review committee I would condemn you as not being collegial as you have no respect for my views of regarding the existence of a liberal conspiracy.
6.27.2005 9:22am
Bob Flynn (mail):
But just because many cry "wolf," does not mean there are no wolves. (Or, to quote Johnny from WKRP, "Just because I'm paranoid, doesn't mean they're not out to get me.")

LOL!

People, this really isn't difficult.

In academia, the gatekeepers lean left. Particularly, lawschool academia. That's a fact.

However, this ought not be surprising. In fact, many institutions lean -- some even right:

1. The military
2. The church
3. The insurance industry
4. The pharmaceutical industry

The point is, Clarence Thomas, should be evaluated solely on the quality of his opinions issued from the Bench. I've read many of them. They are always well-reasoned and articulate. The select few he chooses to be clerks are the cream of the crop (like all SCOTUS clerks), and should not be black-balled by the gatekeepers, bearing grudges against CT.
6.27.2005 1:42pm
JohnAnnArbor:
Larry88,

Just to be clear, are you claiming that the incident Mr. Non-Volokh relates, for which he has two independent sources, did not happen? If so, are you saying: a. Mr. Non-Volokh is a liar? or b. The two independent sources are both liars? Mr. Non-Volokh is simply relating a story.
6.27.2005 2:10pm
Larry88 (mail) (www):
I don't know if anyone is lying, and I will assume, unless that people are not lying. Afterall, nobody lies on the internet.

However, people can be lacking in credibility for reasons other than specifically intending to deceive people. They can:

1) not have personal knowledge and derive their knowledge from sources that they don't have control over (i.e. hearsay);

2) have defects in their credibility (e.g. bad eyesight);

3) be biased in such a way that although they are not consciously aware of it, they tend to construe ambiguous senses in one way or the other (e.g. assuming that the fat boy smells, the blonde is stupid, the 9th Circuit judges is a "crazy liberal," the Jew is an accountant; or the African American is going to start rapping or steal a wallet);

So, while JNV is "relating a story" his "story" is really his perception of what someone else told him apparently about the motivations of someone else. If you were standing in front of me, I would have a hard time discerning why you do things. If you told me why you were doing something, I would probably interpret your stated motivations within my framework of "constructions." If I told someone else what I thought about what you were doing, they would then have to interpret my construction, and they would still post it on a blog as an emphatic assertion of the truth.
6.27.2005 3:57pm
Juan Non-Volokh (mail) (www):
Larry --

I agree relying upon one person's perception of another motivations can be problematic. That is precisely why I relied upon the traditional (if not always observed) journalistic practice of requiring two separate sources for my "story."
6.27.2005 4:56pm
SupremacyClaus (mail):
Please.

If we can move on, from this unseemly squabbling. We are all scholarly, mature, thoughtful adults here.

I request that all clerks of Justice Kennedy be boycotted.
6.28.2005 11:49am
Larry (mail) (www):
But even relying on two peoples' perceptions isn't reliable when all two or more of the declarants tends to construe everything as an ideological decision. While it may be traditional for newspapers to use two "sources," that doesn't mean that the sources are free from biased. Indeed, I suspect that because you tend to be one of the chief promoters of the view that academe is biased against "conservatives" (whatever that means) I suspect that your sources also share your view on this bias.

Look, if such a prejudice against Thomas Clerks really exists, it will come out in much more credible form soon enough. Someone will spill the beans. Someone will be forced to admit this in a deposition. Or maybe the Thomas Clerks will just take other jobs and chalk up not getting one job to the luck of the draw.
6.28.2005 12:06pm
Bo Rutledge (mail) (www):
Blogs can be a colossal waste of time. They are a distraction, not analytical and, worst, can spread bad information. (To be clear, I have tremendous intellectual respect for Professor Volokh and his contributions to the Crim Prof Listserv).

When a friend alerted me to this link, I debated whether to respond. Would I simply fan the flames by providing new fodder? But some of the posts here confirm my fears about blogs and, more importantly, sully the names of people and institutions whom I respect. So, while I could write much more, let me confine my remarks to setting the record straight:

1. The University of Georgia Law School is a fine institution. During the interview process, the faculty and students treated me and my family with courtesy, professionalism and respect. Since that time, I regularly have interacted with both faculty and students from the law school, and those interactions have confirmed those initial impressions.

Are there "faculty politics"? Probably, but I really only can recall one line of questions that struck me as "political." So what! That's going to happen at any law school, university or, for that matter, any institution. Just be honest, state your view and be prepared to defend it.

2. The Catholic University of America is likewise a fine institution. The students here have built an exceptional community where they truly have a passion for the law and their faith. They actually want to be around the building. I encourage anyone to come visit the institution and see for yourself. Call me at 202 319 5140.

3. Special thanks to Adam, my law school colleague, for his kind words in my defense.

4. Whatever the ultimate reasons for the Georgia faculty's decision, I am at peace with the matter and have moved on. I suggest we all do likewise.
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