Unlike Gorsuch, Kavanaugh Jumps Into SCOTUS Cert Pool

Then-U.S. Supreme Court nominee Judge Brett Kavanaugh walks along the hallways of the Russell Senate Office Building on his way to a meeting with Sen. Lindsey Graham, R-South Carolina, on July 11. Photo Credit: Diego M. Radzinschi/ALM

In an early sign of his pledge to be a “team player” on the U.S. Supreme Court, new Justice Brett Kavanaugh has decided to join the court’s “cert pool,” a system for sharing law clerks to screen the thousands of incoming petitions for review.

Under the arrangement the court began in 1973, clerks of justices who are in the pool divide up the job of screening incoming petitions for certiorari review. For each petition, one clerk writes a memo recommending for or against cert that is circulated to all the justices in the pool. It erases the need for clerks in all nine chambers to write memos about each case for their justices.

Two justices—Neil Gorsuch and Samuel Alito Jr.—have stayed out of the pool, which means that their clerks give them independent assessments of petitions, apart from the pool memos. Court spokeswoman Kathy Arberg on Thursday confirmed that Kavanaugh “plans to participate in the cert pool.”

What is the "cert pool?"

  • Clerks in the "pool" divide up new petitions, and write a memo recommending or denying certiorari.

  • The clerks for Gorsuch and Alito do not participate. Critics say the pool gives outsize influence to individual clerks.

  • Kavanaugh wrote "pool" memos when he was a clerk for then-Justice Anthony Kennedy.

The cert pool is controversial. Critics assert that it gives enormous gatekeeping power to individual clerks, and lawyers grumble that it is difficult to explain to clients that their costly petition was viewed by only one law clerk before cert was denied. When asked, justices in the pool have said they don’t rely solely on the clerk memo for making their decisions.

But retired Justice John Paul Stevens has said the growth of the cert pool may have contributed to the shrinking of the court’s docket. In 1998, he told a reporter that “when a clerk writes for an individual justice, he or she can be more candid.” But when a clerk writes a pool memo for multiple justices, Stevens said, “You stick your neck out as a clerk when you recommend to grant a case. The risk-averse thing to do is to recommend not to take a case.”

Sidley Austin partner Carter Phillips, who has also been a critic of the cert pool if it grows too large, said Wednesday, “I completely understand why someone coming into the term after it has begun would want to take advantage of the broader resources. I hope he decides to stay out of the pool after he finishes his first term.”

Kavanaugh had experience in writing pool memos when he clerked for Justice Anthony Kennedy during the 1993 court term, as did Gorsuch, who clerked both for Kennedy and then-retired Justice Byron White.

Kavanaugh has hired four female law clerks, a record for any justice in a single term. Only one of the clerks, Kim Jackson, earlier clerked for Kavanaugh on the U.S. Court of Appeals for the D.C. Circuit. Shannon Grammel clerked for Judge J. Harvie Wilkinson III on the Fourth Circuit; Megan Lacy for Judge Diarmuid O'Scannlain on the Ninth Circuit and Sara Nommensen for Judge Laurence Silberman on the D.C. Circuit.

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