Clerks spill Bush v. Gore details

By Charles Lane

WASHINGTON - The inscription on the front of the Supreme Court building says “Equal Justice Under Law,” but the court’s motto could just as easily be “What Happens Here, Stays Here.” In a town where confidential information travels fast, the justices protect their internal deliberations fiercely - and, usually, successfully.

But in the October issue of Vanity Fair magazine, former Supreme Court law clerks from the court’s 2000-01 term speak out - under cover of anonymity - about what they saw behind the scenes during the fateful case of Bush v. Gore.

That case, decided by a 5-4 vote, ended the contentious recount in Florida, thereby giving the presidency to George W. Bush.

Writers David Margolick, Evgenia Peretz and Michael Shnayerson recount the views of former clerks to liberal justices who opposed the ruling. Those clerks contend that the decision was an exercise in partisanship by conservative Republican justices.

Lawyers are buzzing - but the buzz centers less on the article’s content than the fact that some of the brilliant, ambitious young men and women who work for the justices broke their vow of silence.

“Since ‘The Brethren: Inside the Supreme Court’ (the 1979 Supreme Court expose by Bob Woodward and Scott Armstrong), I don’t think there has been another case where law clerks spoke so openly to the press about the inner workings of the court,” says Noah Feldman, a professor of law at New York University and ex-clerk for Justice David H. Souter. “I’m shocked.”

The justices have had no public reaction. Chief Justice William Rehnquist declined a request to comment for this article.

The Vanity Fair sources do not deny the importance of in-chambers confidentiality, a lifetime obligation spelled out in the written code of conduct that all law clerks pledge to uphold when they come to the court. They simply felt bound by a higher duty.

“We feel that something illegitimate was done with the Court’s power, and such an extraordinary situation justifies breaking an obligation we’d otherwise honor,” one clerk told the magazine. “Our secrecy was helping to shield some of those actions.”

Most of the Bush v. Gore clerks aren’t talking to the media, even to comment on the article’s accuracy, which, as several pointed out privately, would require them to reveal confidential information. But their private comments about the leakers tend to break down along partisan lines, with conservative clerks condemning them and liberals expressing understanding, if not support.

“There’s nothing outrageous about what they’ve done,” says a former clerk for a liberal justice, who asked not to be named because of his own concerns about his relationship with other clerks and the court. “It’s in the spirit of whistle-blowing if not actual whistle-blowing.”

But an open letter in the Sept. 27 issue of Legal Times from 96 mostly conservative former law clerks and lawyers who practice before the Supreme Court branded the leaks “conduct unbecoming any attorney or legal adviser working in a position of trust.”

Most of the criticism in the Vanity Fair piece is aimed at Justices Antonin Scalia, Sandra Day O’Connor and Anthony Kennedy, all of whom voted in favor of Bush. Scalia is depicted bullying Justice Ruth Bader Ginsburg into watering down her dissenting opinion. O’Connor is described as emotionally fixated on stopping a recount and Kennedy as overly influenced by his right-wing clerks.

As the Vanity Fair article’s authors concede, the clerks present no document or other “smoking gun” proving that the conservative justices deliberately decided the case to suit their partisan preferences - a charge that members of the court on both sides have denied publicly.

While calling their account “by far the best” inside look yet, the article acknowledges that it is necessarily “lopsided, partisan, speculative and incomplete.”

http://www.fortwayne.com/mld/journalgazette/news/nation/9949251.htm