February 15, 2006

Alito's law clerk.

The WaPo reports:
Justice Samuel A. Alito Jr. has hired one of the architects of then-Attorney General John D. Ashcroft's policies to serve as his law clerk at the Supreme Court for the rest of the current term, the court announced yesterday.

Adam G. Ciongoli, 37, a senior vice president at Time Warner Inc., served as counselor to Ashcroft from 2001 to 2003. He attended Georgetown University Law Center, clerked for Alito at the Philadelphia-based U.S. Court of Appeals for the 3rd Circuit from 1995 to 1996, and helped prepare the justice for his recent confirmation hearings.

Ciongoli was an aide to Ashcroft during Ashcroft's years as a senator and then came to the Justice Department, where he advised Ashcroft on terrorism issues in the aftermath of the Sept. 11, 2001, attacks. Among the issues he worked on were the detention of thousands of terrorism suspects in the United States and the use of military tribunals to try them.

As a law clerk for Alito, his responsibilities will include helping Alito draft opinions, prepare for oral argument and sift through the mountain of appeals that arrive each week.

Ciongoli's appointment, which will last about five months, is unusual: Though there has been a slight trend at the court toward hiring law clerks with a few years of work experience, the vast majority of clerks are recent law school graduates.

Among those who have come to the court after working elsewhere, none in recent memory had held a government position as senior as Ciongoli's at the Justice Department, where he was widely regarded as one of Ashcroft's closest confidants.
I do find this troubling, but the fact that Ciongoli is a former clerk of Alito's takes some of the edge off it. It doesn't seem that Alito went looking for someone with an inside knowledge of important cases that he is likely to face. And there is a process in place for law clerks to recuse themselves: "According to a 2002 federal publication, 'Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks,' clerks should not participate in cases that they worked on 'in a previous legal job,' or about which they have personal knowledge of disputed facts."

Perhaps it is a good thing for the Justices to hire more experienced persons as their clerks. Here Alito has tapped a person he trusted to help him with his confirmation hearings. Hiring Ciongoli seems so strange because we are used to the strangeness of thoroughly green clerks.


Anonymous said...

I don't mind at all his hiring someone a bit long in the tooth.

I am curious though, it is clear and transparent to all when a judge recuses herself, is it clear and transparent to all when a law clerk recuses himself?

Henry said...

It looks like a way for Alito to get through the year with as little trouble as possible. He can pick up some greenies this Summer.

I would bet being a SCOTUS law clerk is more fun than being a Time Warner Vice President. I wonder what the pay difference is.

Simon said...

I think that, evaluated in terms of the prevailing circumstance, this is perfectly sensible. Alito is an experienced judge, but he is new to the Supreme Court, and it stands to reason that an experienced and steady hand whom Alito has worked with before would be an ideal Clerk while Alito gets his bearings on the Court.

If it was me, I would have looked to see if any of my Clerks had gone on to clerk at the Supreme Court and hired one of them, but perhaps that option was unavailable. Sensible call on Alito's part.

Unknown said...

I think it is probably a smart move given the short term of the clerkship. Alito probably wants someone who can come in and actually work rather than come in and take a couple months to figure out his ideosyncracies and such.

I would note that I will be 37 in April and am envious of Mr. Ciongoli.

Icepick said...

Okay, I'll admit it, I find this law clerk appointment troubling. Ciongoli has been too close to the action of some of the more controvertial issues of the last few years to have such a position, IMO. While the argument that Alito doesn't want to break in a new clerk for a short term probably has some merit, I have to ask: doesn't Alito have other former clerks that didn't work for the Bush DoJ that he could have tagged?

Dave said...

Why is this troubling?

Is it that law clerks traditionally are hired right out of law school? Or something else?

Ann Althouse said...

Note that the linked article says that Alito has taken on two of O'Connor's clerks, which was the logical thing to do.

David said...

It is a forward looking choice. The sooner the U.S. gets back on the track of Constitutional Originalism the better. Scalito and Scalia can lead the charge away from Judicial activism, moral relativism, and the nonsense of a living Constitution.

In the long run, hopefully, this will strengthen the U.S. as it confronts a future dealing with an implacable foe like Iran. The U.S., indeed the west, needs to return to the basic foundation of their core beliefs.

Nothing encourages and supports the terrorists more than endless discussion of the nuances of a meaningless living constitution!

Ciongoli is taking a huge cut in pay for this more important job. He will make a lot of money on his stock holdings if his former employer can turn TWX around.

Anonymous said...

Dave, this is troubling because Ciongoli helped formulate policies that have a good chance of being reviewed by the court. It calls into question his ability to provide the appropriate impartial review. It also creates an appearance of partisanship in Alito.

Much of this could be addressed if Ciongoli recuses himself from cases where this is an issue. But even so, hiring someone who had a hand in crafting some of the most controversial policies of the day doesn't send a reassuring signal on the objectivity of the court.

Henry said...
This comment has been removed by a blog administrator.
Anonymous said...

Again Ann, will the people, defendants, and future scholars know when and if a law clerk has resolved himself? Are opinions or their drafts written or documented in a manner that indicates who participated in the process?

The Drill SGT said...

Reading the last para,

Ciongoli was one of five lawyers named as law clerks to Alito. Benjamin Horwich and Alexander Volokh will switch to Alito from the chambers of retired justice Sandra Day O'Connor. Hannah Smith and Jay Jorgensen will join Alito after having worked for Justice Clarence Thomas and then-Chief Justice William H. Rehnquist, respectively.

I see a makeup of 5 experienced clerks, 4 coming inhouse from the SCOTUS group, without any encumbrances, and one prior Alito clerk coming in from the outside.

With 4 SCOTUS clerks, any of those cases with possible conflicts can be handled by them.

Ciongoli brings a good understanding of Alito. I would not be surprised if he fills the Chief of Staff or Aide deCamp role among the 5 clerks.

With the acclaim that Alito got from his previous clerks, it seems clear to me that he treats them well and that the junior ones thought that they were respected and listened to. I would expect that Alito will go into next year with a crop of outsider clerks.

Ann: Isn't it common practice for the Supremes to to obtain clerks with experience clerking elsewhere first, rather than new law school grads? If that is the case, I would predict that Alito reaches down to his old circuit for the next round of hires.

Beth said...

Nothing encourages and supports the terrorists more than endless discussion of the nuances of a meaningless living constitution!

Are we really to believe that thugs in madrassas and caves actually pay any attention whatsoever to the nuances of schools of thought on the U.S. Constitution?

I always cringe when I see a sentence begin with "nothing encourages the terrorists more than...".

Tyler Simons said...


David was totally joking. I mean:

Nothing encourages and supports the terrorists more than endless discussion of the nuances of a meaningless living constitution!

That's funny, right? I mean, if he were serious, he might have said "Endless discussion of the nuances of a meaningless living constitution only supports terrorist claims that we're a weak target," and that might have been an actual (if incorrect) point. To say, however, that nothing helps terrorists more than the living constitution debate, that's a poor attempt at comedy.

(God, I hope I'm right.)

Ann Althouse said...

Drill SGT: Most Supreme Court clerks are recent grads, but they are coming from a lower court clerkship. That's the normal path.

David said...


You underestimate the quality of our opponents. You also underestimate the enormity of the faith they have in their cause.

Regarding suicide bombings the west refers to them variously as murderous lunatics. While the moderate muslims may abhor suicidal attacks in the name of Islam, they admire the commitment, resolve, and faith that drives the bomber. His sacrifice is more important than the innocents he/she kills.

The terrorists, deeply religious, watched our recent discussions last Christmas. What we saw as a debate on the constitutionality of a display of the Ten Commandments the terrorists saw as inherent weakness and a lack of religious fervor and belief in our cause.

The recent furor over 1st ammendment rights to print cartoon caricatures of Muhammad is another example, to the deeply relgious fanatic, of our lack of faith and secularity.

Therefor, our Constitution is under attack by Americans trying to rewrite it and the religious crusaders trying to destroy it.

Is our faith in anything in the west as strong as the faith of the religious maniac who wants to die for the glory of his faith?

How many of us have seen pictures of UBL talking on a satelite phone? To think he doesn't have educated minions mining western blog sites, etc., looking for moral and spiritual weakness is absurd and dangerous. Witness the recent hack attacks on blog sites (Malkin, et al) for printing "offensive" cartoons.

Know your enemy!

Stuart Buck said...

New Justices usually hire former clerks, as this very informative post explains. Another example is Chris Landau, who clerked for Thomas on the D.C. Circuit, Scalia on the Supreme Court, and then for Thomas again during Thomas's first year on the Court.

Stacy said...

David Said:

"The terrorists, deeply religious, watched our recent discussions last Christmas. What we saw as a debate on the constitutionality of a display of the Ten Commandments the terrorists saw as inherent weakness and a lack of religious fervor and belief in our cause."

Wow. They told you that? They were riveted by our interpretation of what the Establishment Clause allows? That seems like a rather politically expedient (and convenient) interpretation- one that probably is strikingly similar to your own personal views regarding the subject.

And it's giving the terrorists a lot of power if you are suggesting that every single thing, including Constitutional interpretation, should be a knee-jerk reaction with respect to what the terrorists want/hope/think.

Or perhaps I am misunderstanding your point (I admit that is of course a possibility ;))

Beth said...

I'm not underestimating anything, David. I am quite sure that when a statement begins with "the terrorists take great comfort from X," X is a thing the speaker opposes politically. Thus, his opponents are comforting the terrorists. It's demogoguery, pure and simple.

mtrobertsattorney said...

Not so fast Elizebeth. Isn't is possible for both to be true: it is true that terrorists take great comfort in "X" and it is true that "X is something the speaker opposes politically.

Beth said...

Sure, Jack. There can be truth in any cliche. But isn't it wise to be circumspect? There's nothing ambiguous in the example we're looking at here. It's pure bull hockey.

David said...

Bull Hockey?

Because of the cartoon controversy the west is consolidating it's position against the Muslims while the arch-enemies sunnis and shias are consolidating to oppose the west.

Note that many countries in the west are showing resolve in support of freedom of speech against Islamic Koranic interpretation forbidding caricatures of Muhammad.

The moderate Muslims are in the middle forced to make a choice between moderation and defense of their God. UBL is attempting to rouse the masses against the west by fanning the flames of unrest in western countries.

The unrest appears to hinge on the support for freedom of speech in the west versus utter devotion to the misinterpretation of the Koran in the Middle East.

The motivation in the M.E. (Iran) is a cleansing of the world prior to the arrival of the Mahdi who is angry and expected to return the world to Islamic rule as a Caliphate.

AlaskaJack; very perceptive!

Anonymous said...

So I take it Ann that you agree, that no one in the public knows when a law clerk has recused himself.

Beth said...


What have the cartoons and free speech got to do with our internal disagreements over "a living constitution"? No one's arguing whether our rights clash with the tenent's of our enemies' beliefs; of course they do. But that's not what you were arguing earlier--you were trying to score points for your position on schools of constitutional interpretation with a low appeal to fear of terrorism. Changing the subject to what's wrong with Islamist fundamentalism versus Enlightenment thinking is a red herring.

David said...


That is the paradox!

Suicide bombers are heralded as freedom fighters while our military is constantly portrayed as an army of torturers.

The cells the bombers inhabit use our telecommunications networks to plot their next attack while the NSA is pilloried for tracking them.

Our intellegentsia, Gore for example, goes to our enemies countries (Saudi Arabia) and falsely accuses the Bush administration of treating in-country muslims like the Japanese were treated during WW2.

What we see as strength in debating a living Constitution the radical Islamists see as weakness and indecision-read dhimmitude.

Discussion of law clerks and recusals is viewed in the east as a failure of will on our part.

This failure of will is best demonstrated by the collapse of governments to stand up for their 1st ammendment rights in the publishing of cartoon caricatures.

If we cave in to the hurt feelings of the so-called aggrieved muslims we only encourage their further acts of violence. Further, we are putting our stamp of approval on their mistreatment of western religions thus weakening our culture.

This not a red herring. It is both our strength and our weakness in the eyes of the terrorist. To them, discussion is a failure of will and an opportunity for our enemies to work within our system of debate as a stalling technique to further their nefarious schemes unhindered.

Beth said...

Dave, the problem is that you can say any of our debates on policy, our constitution, how we should conduct this war, how we should treat captive combatants, and so forth are seen as weaknesses by the enemy. Therein is the demogoguery. It becomes a matter of "if you challenge the president" or "if you support the living constitution view, you are comforting the terrorists!" That's bunk.

We don't have to change our culture to make ourselves more comprehensible to people who have no actual interest in comprehending us. And I don't think that's your purpose. Your purpose is to use fear to gain compliance, here at home.

David said...


It is my opinion that the terrorists do comprehend our culture. The failure of comprehension is ours.

I don't fear the terrorists, I respect their resourcefulness and dedication to win at all costs. In that context I would use the word cautious and not fear.

I do, however, remain fearful that Americans have become soft and unable to do what it takes to avoid further attacks on this country that could be worse than 9/11.

I don't see the rage today that came after the attack on Pearl Harbor. The fact that our country has been violated twice in New York (WTC) requires that we take special (temporary) steps to prevent a recurrence.

SCOTUS is changing in a way that will give the terrorists pause. Of course the terrorists will still have Gore's speech in Saudi Arabia to cheer them as will the news out of Washington State where alumnus Pappy Boyington is being denied recognition because he is a decorated Marine and Congressional Medal of Honor recipient.

If I am perceived as a demagogue then so be it. If it saves American lives it will have been worth the effort.

I do enjoy opposing points of view presented in an intelligent manner. Well done!

By the way, what is the opposite of demagogue, in your opinion?