Beneath a photo of Judge Samuel Alito in Princeton University’s 1972 yearbook, one line prophesied a rich future for the 22-year-old public-policy major: “Sam intends to go to law school and eventually warm a seat on the Supreme Court.”
Thirty-three years later, it seems, that cheeky line said more about Mr. Alito’s dearest ambitions than the yearbook editors could have known.
Speaking of her son watching and waiting as President George W. Bush mulled over candidates to fill two vacant positions on the Supreme Court bench, Judge Alito’s 90-year-old mother, Rose, confided to reporters in Trenton: “I think he was upset that he didn’t get there in the first shot, that [Harriet] Miers got it.”
Thirty-three years is a long time to wait for something you want that bad.
But to hear some tell it, 35-year-old Noah Feldman has wanted the same thing for just about that long.
“I think Noah got tenure when he was about 2 years old,” said Burt Neuborne, a professor of constitutional law at New York University, which has offered Mr. Feldman tenure. He has offers from Harvard and Yale as well; in addition to three books already published, he has also advised on the Iraqi interim constitution.
Mr. Feldman is a “Little Supreme,” one of a handful of earnest, platinum-résumé’d law geeks whose prospects for the Big Bench are the source of constant speculation among friends and colleagues.
“You fantasize about it, of course. That’s almost part of the fun of it, to fantasize about it,” Mr. Feldman said recently from his Greenwich Village office, when asked whether he’d ever dreamed of warming a seat one day. “That’s just part of the Walter Mitty inner life of someone who loves doing something …. If you’re someone who likes the law, then you’ve got to be someone who imagines that you got a chance to write a Supreme Court opinion.”
Mr. Feldman is hardly the only Little Supreme in town. There are at least a few other young lawyers—professors, assistant U.S. Attorneys, corporate litigators—who have that early Supreme Court buzz about them. Also at N.Y.U., visiting from the University of Michigan, is Richard Primus, 36, an intellectual purebred and constitutional scholar with a pensive, deliberate manner. There is David Schizer, also 36: He’s the youngest dean in the 147-year history of Columbia Law School, an amiable former professor who fell in love with tax law in his early 20’s. And Samuel Rascoff, a vivacious 32-year-old litigation associate at über-firm Wachtell, Lipton, Rosen and Katz, who clerked for Justice David Souter and worked as an assistant to L. Paul Bremer in Iraq. There’s Jennifer Newstead, 36, a thoughtful litigator at Davis, Polk and Wardwell who developed deep Republican ties during her four and a half years working for the administration, most recently as general counsel of the White House’s Office of Management and Budget.
It’s a long, slow, quiet trip to the top. They’re doing all the right things, whether they admit it to themselves or not. And if, like Judge Alito, they’re confiding their fondest dreams to their mothers, they do so to few others.
Rachel Barkow, 34, an associate professor at N.Y.U. Law School, clerked for Justice Antonin Scalia alongside several Little Supremes, serving as the “counter-clerk”—the nickname given to the Democrat he hires to sniff out political biases in his arguments.
“There is this unwritten rule that if they wanted it or thought about it, they wouldn’t say it,” Ms. Barkow said. “It’s that you get a strong impression that that might be a motivating factor—but not the motivating factor—based on some of the choices that people make.”
“The cliché about the Supreme Court is that lightning strikes,” said Mr. Schizer, the young dean. “I think there are some people who do their best to find a lightning rod.”
‘The Ultimate Job Ever’
Like Chief Justice John Roberts and Judge Alito, the Little Supremes tend to have big brains and conservative, future-oriented personalities. They’re under 40, a few years shy of being actual candidates for the lower-court bench, yet old enough to be on the cusp of making partner or getting tenure.
But they seemed older, even in their 20’s. Now in their 30’s, most of them are married, many with children. They wear blazers comfortably—not a lot of beards or nose rings here.
The Little Supremes speak in fully formed paragraphs, with lots of conditional clauses. Conversations with Little Supremes get Jesuitical; their word choice is precise, measured—in a word, judicious. Talking to them can spark feelings of intellectual inadequacy. The Little Supremes are “clarifiers,” able to dissect muddled questions and turn them into the ones they want to answer.
A story about Mr. Feldman’s first day at Yale Law School has him answering a professor’s question with “four points of analysis.”
“I honestly don’t remember it,” Mr. Feldman said of the tale. But he admits that he stood out.
“I definitely think people laughed at me in law school,” he told The Observer in an earlier interview.
The sec wit and Strunk and White sarcasm of newly minted Chief Justice Roberts is the comic coin of their realm.
But some of their behavior has obvious purpose. This is a group for whom the various confirmation scandals—Supreme Court nominee Douglas Ginsburg’s smoke-out and the respective Nannygates of Attorney General hopefuls Zoë Baird and Kimba Wood—were object lessons.
So they don’t do drugs, they don’t take liberties with their taxes, and they pay their household help—and they all seem to have household help—on the books.
Kermit Roosevelt, 34, a Little Supreme who teaches at the University of Pennsylvania Law School, recalled some nervous joking among the pot smokers in his class at Yale Law School. “You can’t do this, because it will come up at your confirmation hearing,” he recalled people commenting at a party. “Which is not to say that I did,” he added.
“I definitely made a decision that at some point I was aware that if you wanted the chance to do public service, it was probably a good idea to follow the law and never smoke pot—so I never did,” said Mr. Feldman.
Mr. Schizer doesn’t even speed. “It took on more of a moral significance to me as I grew up,” he confessed. “I think the only thing I do that’s illegal is I jaywalk, and I’m not even sure that is illegal in Manhattan.”
None of them will admit that they keep such tidy lives because they think they might someday face a confirmation hearing. It flies in the face of reason to plan to become a Supreme Court justice, they said, noting the role of serendipity alongside merit. All of the Little Supremes said that it would be absurd, preposterous, crazy to plan to be on the Supreme Court now, that it would take an unspeakable amount of hubris.
But sometimes this apparent modesty gives one more than a little occasion to reflect, like Hamlet’s mother, on the practice of protesting too much. “I’m the guy who gets confirmed when the other guy blows up,” said one Little Supreme—who, like many, was too superstitious to be quoted on the record.
“I can only smile at the premise,” Mr. Primus said, with a smirk. “If you give me $10 right now, I would give you $10,000 if I’m on the Supreme Court. It’s not going to happen.”
“The kinds of people you talked about are the sort of people who woke up on the morning of the Roberts nomination and said, ‘This could be me,’” said one Little Supreme, who would also fit into this category. They “recognized themselves in the career trajectory of John Roberts.”
If anything, the commonalities in the Roberts and Alito nominations—alongside the mangled candidacy of Harriet Miers, whose career path placed her far outside the elite East Coast legal establishment—reinforces the status quo, the narrow corridor of educational background and career pursuits common to many Little Supremes. If it’s not possible to run for the job, it’s also not possible to get it without wanting it.
“It’s like when people say, ‘I’m going to be President.’ I’m not sure what to make of those claims,” said Catherine Sharkey, 35, a self-effacing Little Supreme who teaches tort law at Columbia.
“I think it would be hard to be in certain circles of the legal profession and not fantasize about it,” said another Little Supreme.
Mr. Feldman seconded that view.
“I think every single law student walks into law school, and you’re oriented toward these cases which you read, and a lot of them are written by the Supreme Court—and naturally, you think to yourself: ‘Boy, how neat would it be to do that?’ Similarly, if you’re lucky enough to get a chance to be a law clerk for any judge, you spend a lot of time with these Supreme Court opinions, and naturally you think some of them are wonderful and some of them are not so wonderful, and you’d love nothing better in life than to have the opportunity to do it. But that’s honestly it.”
One 34-year-old Little Supreme, who works for the government in D.C., became a little more forthcoming once The Observer agreed not to print his name.
“Many times people have asked me, ‘What would be your dream job?’ And I’ve always said, ‘Supreme Court justice,’” he admitted. “It’s the ultimate legal job, and it’s the ultimate job ever.”
David Kennedy, 34 (no relation to any of them—in the Senate or on the bench), is an assistant U.S. Attorney in the Southern District of New York.
“I have friends who sort of joke about it; I don’t think they’re predicting,” he said. “I don’t know—maybe they are.
“It’s sort of a weird thing to be told,” he continued, laughing. “Don’t you think?”
The Little Supremes viewed law school as the entrance into a secular priesthood.
Most came to the law as an extension of an academic venture that they had begun in college, where most studied topics like political theory, philosophy, American government. The law placed a premium on rigorous thought and argumentation, appealing to many Little Supremes with debating backgrounds, and it also seduced those interested in influencing society on the level of ideas.
“I became a lawyer, I suppose, because I unwittingly internalized at a young age Tocqueville’s observation that lawyers are the high priests of American society,” said one Little Supreme grandiloquently. “It was less about Clarence Darrow; it was less about the drama of the courtroom or the legal profession. It was an invitation to a seat at the table at the great American conversation.”
The Little Supremes are interested in public service, and that’s why many of them got into the law. But many have a rarefied view of what that means.
It doesn’t mean working for local candidates, participating in the rough-and-tumble of a campaign, or working as a public defender. They aspire to a significant role in public affairs, but on the level of ideas, or in the federal government, as statesmen, judges, big-picture advisors. In other words, something between the penury and isolation of a purely academic life and managing John Edwards’ campaign.
It starts with the right law school—Harvard, N.Y.U., but most especially Yale—and follows a few very specific paths from there.
According to classmates of theirs from law school, the difference between the Little Supremes and other extremely ambitious law students was the difference between someone who is interested in an appointed position and someone interested in an elected one. Unlike some of the aspiring Senators and governors canvassing law-school campuses—think Bill Clinton at Yale in the early 1970’s, or Cory Booker there in the mid-1990’s—the Little Supremes didn’t shake everyone’s hand or shy away from turning some people off.
Just about the worst thing that you can say about someone in law school is that they were a “gunner”—a catch-all term that can be used to describe someone who won’t share notes, say, or whose arm is locked in the upright position in class discussions, signaling a general readiness to offer “insight.”
The Little Supremes were not typically gunners. They weren’t suck-ups—in part because they tended to view professors as intellectual equals—but they did form close relationships with “famous” professors.
Most didn’t suffer from the need to let everyone know they were the smartest people in the room. Respect is earned quietly—and typically from others who have served with them in the more selective environment of law review—and certainly with a minimum of political fervor. (Wouldn’t want that on the record, would we?)
When exam time came around, it often wasn’t the Little Supremes holding forth on their reading of the establishment clause or grappling with other Big Ideas. They were more engaged by the wonky so-called “plumbing” courses, including those that focused on how the court and government work: federal courts and administrative law. One Little Supreme described the latter as “electrical engineering for lawyers.”
The Path to Power …
If the Little Supremes’ cars are festooned windshield to bumper with stickers from Harvard and Yale and N.Y.U., they’re also covered in names like Kent, Fay and Sears, the names of awards given to top law-school students; Rhodes, Marshall, Knox and Luce, references to the post-college fellowships many of them received; and SCOTUS, a reference to their time clerking on the highest court in the land, an honor like no other in the legal profession.
While only five former Supreme Court clerks in history have returned to the court as justices, three of them now sit on the court.
“The thing about Yale Law School,” said Michael Goldhaber, a member of the class of 1993 who is now the senior international correspondent for The American Lawyer, “is that everybody is competing to a be a Supreme Court clerk, and everybody who wants to be a Supreme Court clerk wants to be a Supreme Court justice. Those two fantasies go hand in hand.”
At N.Y.U., as at other top schools, somewhere between 15 and 40 students with the top grades get special counseling for prime clerkship placements, the goal being to send the top Supreme Court clerkship candidates to “feeder judges,” said Mr. Neuborne.
These are the old kingmakers of an old profession. In the first half of the century, it was Second Circuit Judge Learned Hand; in the 25 years after that, Second Circuit Judge Henry Friendly. At least six of his former clerks are on the federal bench—including Justice Roberts and Judges Pierre Leval, A. Raymond Randolph, Michael Boudin, William Curtis Bryson and Merrick Garland.
The feeder judges tend to be Supremes-in-waiting themselves. These days, some of those judges are political iconoclasts Richard Posner and Alex Kozinski, conservative sparring partners Michael Luttig and J. Harvie Wilkinson III, and Second Circuit Clinton appointees Pierre Leval and Guido Calabresi.
“I think Guido picks winners,” said Mr. Roosevelt, who didn’t get a clerkship offer from Judge Calabresi but did clerk on the D.C. circuit, considered a training ground for Supreme Court justices.
And it’s a betting man’s game. The wildly irreverent, anonymous legal Web log Underneath Their Robes keeps tabs on where feeder-judge clerks end up, and refers to Supreme Court clerks as “members of the Elect.”
Not surprisingly, most Little Supremes cluster in Washington, D.C. After clerking for the court, they are hotly sought after by the law firms with appeals-court practices. Young Federalist Society sympathizers often pick Kirkland and Ellis or Gibson, Dunn and Crutcher; liberals flock to Jenner and Block and Wilmer Cutler Pickering Hale and Dorr; those in between opt for O’Melveny and Myers; Sidley, Austin, Brown and Wood; or Mayer, Brown, Rowe and Maw.
The administration’s legal offices are the real stomping ground for Little Supremes. There are certain high-profile spots in government which ensure that someone will notice how you’re interpreting the Constitution: as one of the U.S. Solicitor General’s 17 attorney assistants, or in the Office of Legal Counsel at the Department of Justice, where Justice Roberts, Judge Alito, Justice Scalia and the late Chief Justice William Rehnquist all worked at some point.
The Little Supremes who work at New York firms have all put in time with the government. Charles Duggan, 37, a former Scalia clerk, just finished a year as associate counsel in the White House counsel’s office, the position that Justice Roberts held in the second Reagan term. Afterward, he went to the litigation department at the Manhattan white-shoe firm Davis, Polk and Wardwell, where he was joined by the aforementioned Ms. Newstead, fresh from her White House job.
… And Its Detours
But another route, the one taken by Mr. Alito, is to become an assistant U.S. Attorney. The Southern District of New York, headquartered in Manhattan, is a prestigious launching pad. Some of the Little Supremes working there are Jesse Furman (Yale Law School, class of 1998) and Michael Scudder (Northwestern University School of Law, class of 1998), both former Supreme Court clerks, and David Anders, 36, the jack-of-all-trades who sent Bernie Ebbers to the Big House.
These are the only Little Supremes likely ever to utter the words, “Ladies and gentlemen of the jury …. ” They’re the scrappiest of the Little Supremes—and, just maybe, have a little more scrapping to do.
“How do I put this?” said Mr. Primus of Mr. Furman, who is a friend of his from law school. “I think he’d probably also be a good building manager or chief financial officer—whatever you put in front of him.” (Mr. Furman declined to comment.)
Then there are the academics. It’s not an obvious place to start.
“To be a successful academic, you have to really have a viewpoint—or several viewpoints,” said Mr. Feldman. “And you have to be willing to wade into very controversial issues and take controversial stands on them in order to advance the debate; that’s why you hold the function in society that you hold.”
It’s telling that the major constitutional scholars on either side—Robert Bork on the right and Larry Tribe on the left—haven’t made it to the Big Bench.
The nomination and confirmation process has been kinder to those academics who have studied administrative law, where the issues tend not to be divided along party lines.
The Little Supremes know this.
“If you really want to be on the Supreme Court,” Mr. Roosevelt said, “you need to make political connections and not express controversial views, and I think I’m not doing very well on either of those.”
That’s why Traci Lovitt, 35, a fireplug appellate lawyer who once argued a case before the Supreme Court when she worked in the Solicitor General’s office, said to count her out.
“I think it is an unfortunate reality today that to be a judge, you cannot hold vehement opinions prior to the nomination and confirmation process,” she said. “You can’t be opinionated. You can’t hold views and be loud and outspoken about them. That is something I would never compromise about myself.”
But who knows? Twenty years from now, that could be a stump speech.
“Roberts is very thoughtful, and he’s careful not to commit himself before he’s sure of what he thinks. That’s a quality I admire, and I seek to emulate that,” explained Mr. Schizer, preparing his way to become a stealth nominee. “I think you would find a lot of people who are not quite sure what I think about some issues.”
Mr. Primus let out a deep breath. “I believe that before I die, it’s likely that someone I know will be nominated to the Supreme Court,” he said.
You heard it here first.