On the Supreme Court’s Love Affair with the Office of Legal Counsel
By Joe Palazzolo | July 7, 2009 1:27 pm

David Lat, in Internet drag, once likened the Office of Legal Counsel to “Finishing School for the Elect.” At the height of his/her Article III Groupie days, Lat wrote,

If you don’t land a Supreme Court clerkship that immediately follows your feeder judge clerkship, cool your heels at the OLC, then reapply to the Court. Success is practically guaranteed!

Indeed. If you’ve been following Above the Law (another Lat invention), you’re probably familiar with the crop of October Term 2009 clerks, and the list is laden with former OLC lawyers — five, to be exact. A new record!

Since 2001, the Justice Department’s nerve center has nurtured an astounding 14 Supreme Court clerks, according to spokeswoman Tracy Schmaler. The most recent five, all of whom have left the OLC since January, are:

  • former attorney-adviser Marah Stith (Justice Clarence Thomas)
  • former attorney-adviser Steve Lehotsky (Justice Antonin Scalia)
  • former attorney-adviser Amit Agarwal (Justice Samuel Alito)
  • former attorney-adviser Allon Kedem (Justice Anthony Kennedy)
  • former OLC Deputy Assistant Attorney General Elizabeth Papez (Thomas)
U.S. Supreme Court

U.S. Supreme Court

So, how has the diaspora affected the OLC? Numerically, not much. Schmaler said the department has hired six OLC lawyers in the past few months, one of whom started yesterday. The office’s head count is 18, including four political deputies. Two more lawyers have been hired but haven’t started yet, and if (when?) Dawn Johnsen, the nominee to head the OLC, emerges from the political sludge, the office will be 21 strong. (If you’re keeping count, that would still give the White House Counsel’s Office a one-lawyer advantage. Ruh roh.)

It should also be noted that turnover in the OLC is common. The average tenure of an attorney-adviser is two or three years, said John Elwood, a former deputy in the office during the Bush administration. And in recent years, ”a few have been going over to the Court every term,” said Elwood, who left DOJ in January.

But five? ”If I had to guess, I’d say the stars were in alignment this year,” Elwood said. ”It’s always been a very selective place that attracts a very selective group. [OLC lawyers] are in demand not just at the Supreme Court but everywhere.”

The Robert F. Kennedy Department of Justice Building

The Robert F. Kennedy Department of Justice Building

The office wasn’t always the feeder it is today. Elwood traced the trend back to the mid-1990s. Since then, he said, “the justices have shown an increasing appreciation of law clerks with real-world experience under their belts.”

While the outbound trend is new, there is a long tradition of former clerks returning to the office in leadership roles.

The office’s acting chief, David Barron clerked for Justice John Paul Stevens, and Deputy Assistant Attorney General Jonathan Cedarbaum clerked for newly retired Justice David Souter.

Scads of “The Elect” ran the office at various points during the Bush administration, including

  • former Assistant Attorney General Jack Goldsmith, now a Harvard Law School professor (Kennedy)
  • Steven Bradbury, former principal deputy and acting assistant attorney general (Thomas)
  • former Deputy Assistant Attorney General John Yoo, now a visiting professor at Chapman University School of Law (Thomas)
  • Elwood, who blogs for The Volokh Conspiracy but is otherwise taking the summer off (Kennedy)
  • former Deputy Assistant Attorney General Steven Engel, now a partner at Dechert (Kennedy)
  • former Deputy Assistant Attorney General Noel Francisco, now a partner at Jones Day (Scalia)
  • former Deputy Assistant Attorney General John Eisenberg, now a partner at Kirkland & Ellis (Thomas)
  • former Deputy Assistant Attorney General Patrick Philbin, also a partner at Kirkland & Ellis (Thomas)

Sorry if we left someone out.

And a footnote: Scalia and the late Chief Justice William Rehnquist (thanks, reader) both ran the OLC before ascending to the Court. Their portraits hang in the office. We heard Scalia’s is still hanging in the office of Deputy Assistant Attorney General Marty Lederman. Probably not for long.

This post was corrected from an earlier version on 9/21/09

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3 Comments

  1. I have no earthly idea. Thanks, former OLCer.

  2. former OLCer says:

    Who is Harry Rehnquist?

  3. [...] is currently at the DOJ’s extremely prestigious and powerful Office of Legal Counsel, which has a long track record of sending young attorneys into SCOTUS clerkships. We once dubbed it the Finishing School for the [...]

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