Sunday, February 19, 2006

Controversial New Clerk for Alito was a top aide to ttorney General John Ashcroft

The New York Times
New Clerk for Alito Has a Long Paper Trail

JUSTICE SAMUEL A. ALITO JR., who was so bland and self-effacing at his Supreme Court confirmation hearings last month, made a bold decision on arriving at the court. He hired Adam G. Ciongoli, a former top aide to Attorney General John Ashcroft and an architect of the Bush administration's legal strategy after the Sept. 11, 2001, attacks, to be one of his law clerks.

In the world of clerkdom, Mr. Ciongoli's appointment was a startling development, both because of his seniority and because of his political background. While his paper trail might attract critics eager to see potential conflicts of interest, his substantial professional experience, rare among clerks, may also be a big asset.

"We don't normally contemplate a high-level Justice Department official becoming a Supreme Court clerk," said Ronald D. Rotunda, a specialist in legal ethics at George Mason University School of Law. "It's just asking for problems that are unnecessary." Most Supreme Court law clerks, who prepare memorandums and draft decisions for the justices, have little of note on their résumés beyond superior grades at a top law school and a clerkship with a federal appeals court judge.

"They're like legal Doogie Howsers — child prodigies of the law," said David Lat, a former federal prosecutor whose blog "Underneath Their Robes" reports on the hiring of Supreme Court clerks. "Yet they're influencing decisions that affect millions."

Mr. Ciongoli, 37, represents a different model. He has a rich and public history in government and, most recently, as a senior lawyer at Time Warner.

"It really indicates a lapse in judgment," Deborah L. Rhode, who teaches legal ethics at Stanford, said of Justice Alito's decision. "I just don't think it helps your reputation for nonpartisanship, particularly after such partisan confirmation hearings, to start out by hiring someone who is perceived to have an ideological agenda."

The Supreme Court is scheduled to hear arguments next month in a case considering the constitutionality of the military commissions the Bush administration created to try suspected terrorists. The court is also considering whether to hear the case of Jose Padilla, who challenged his detention without charges as an enemy combatant.

Former Supreme Court clerks and experts in legal ethics said that Mr. Ciongoli will almost certainly not work on any cases relating to his earlier work, which covered a broad range of legal issues concerning terrorism.

"He cannot work for the justice on any cases that come before the court if he worked on those matters at Time Warner or the government," said Stephen M. Gillers, who teaches legal ethics at New York University. "You don't want him to the judge the quality of his own work."

Of course, it will never be possible to know what sort of casual conversations may take place in Justice Alito's chambers, said Monroe H. Freedman, who teaches legal ethics at Hofstra University. "No one is ever going to be able to police that," Professor Freedman said.

But, he added, "There is also a presumption that the justice can think for himself regardless of anyone he gets advice or counsel from."

WHATEVER its wisdom, the decision to hire Mr. Ciongoli says at least three things about Justice Alito, legal experts said.

First, Justice Alito is loyal, and he feels most comfortable with longtime associates. Mr. Ciongoli clerked for him as a federal appeals court judge in Philadelphia in 1995 and 1996. Two of the justice's other new clerks also worked for him in the appeals court and then went on to clerk on the Supreme Court, one for late chief justice, William H. Rehnquist, the other for Justice Clarence Thomas.

Second, Justice Alito, like the other justices, hires clerks whose views are close to his own. "Most of the time," Mr. Lat said, "clerks' ideologies line up pretty cleanly with the justices." Another Alito clerk, Alexander Volokh, has written for libertarian publications.

Third, Justice Alito, whose own paper trail was substantial, is willing to hire clerks who come with their own documentary record.

Other justices have been more wary. In 1966, for instance, Justice William J. Brennan Jr. withdrew an offer to a clerk, Michael E. Tigar, after pressure from conservative groups who took issue with Mr. Tigar's liberal political views.

In all, Justice Alito's decision to hire Mr. Ciongoli was smart, said Steven Lubet, who teaches legal ethics at Northwestern. "Somebody with some real experience can provide better work than someone who's green," Professor Lubet said. "It's a terrific idea."