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I’ll have to grab the latest Vanity Fair, because Supreme Court clerks reveal the scuttlebutt on the Bush v. Gore election debacle in 2000 . This hit the news because a joint statement by lawyers and former clerks has been release, criticizing the clerks that were sources for the article. Apparently they breached their confidentiality agreement to talk.

More than 90 prominent lawyers and former Supreme Court law clerks including former Attorneys General Richard Thornburgh and William Barr have joined in a statement sharply criticizing the law clerks who gave behind-the-scenes details about the 2000 case Bush v. Gore to Vanity Fair magazine.

The anonymous clerks’ disclosures also violate the clerks’ Code of Conduct and their “duty of confidentiality” to their justice and to the Court, the joint statement asserts.

Entitled “The Path to Florida,” the article reviews the dramatic events of four years ago and depicts sharp divisions within the Court over whether the Florida recount should proceed or be ended. Justices Antonin Scalia, Sandra Day O’Connor and, eventually, Anthony Kennedy are portrayed as determined to reach a result that would hand victory to George W. Bush.

…Several law clerks are named, though they are not necessarily among the clerks Margolick was able to interview. Margolick says roughly one-fourth of that term’s 35 clerks spoke with him.

In a footnote published with the article, Margolick, a former legal affairs reporter for The New York Times, acknowledges the confidentiality rule and says none of the clerks he spoke to disclosed internal documents or conversations with their justices. But he indicates that the clerks who were willing to give him other details did so because they felt strongly the Court had acted improperly in the election case. “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,” Margolick quotes one clerk as saying.

..In one episode reported in the story, Scalia clerk Kevin Martin visited the chambers of Justice John Paul Stevens to discuss the case with Stevens’ clerks. The conversation “turned nasty,” Margolick reports, and Martin stormed out. Martin could not be reached for comment. On another occasion, Kennedy was said to have visited Justice Stephen Breyer’s chambers, where he stated aloud that he hoped Breyer would join his opinion against continuing the recount. “We just kind of looked at him like he was crazy,” a clerk is quoted as saying.

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Pam Spaulding

Pam Spaulding