Case of the missing law clerks: Is Justice Souter’s silence on hiring a signal he’s retiring?

Does Souter’s silence on hiring mean he’s leaving?

WASHINGTON — The case of the missing law clerks is this spring’s most-watched mystery at the Supreme Court.

It could be, to borrow a page from Sherlock Holmes, the court’s dog that didn’t bark, offering a clue as to the retirement plans of Justice David Souter.

Or perhaps Souter, known for his wry humor, is having a little chuckle at our expense.

He isn’t saying, declining through a court spokeswoman to put the issue to rest.

Either way, eight justices are known to have hired the four law clerks who will work with them in the Supreme Court term that begins in October. Souter appears to be the lone holdout.

Officials at the highest levels of government have taken notice, while the court’s press corps is consumed with anxiety.

Why does this matter? Under the scenario that counts, Souter, 69, would not be hiring clerks because he isn’t planning to be in Washington in the fall. A retirement would give President Barack Obama his first chance to nominate a justice and the next few months would bring Senate confirmation hearings.

This is concededly an unusual way to signal that a retirement announcement is imminent, but then the court is an unusually secretive institution. Those who watch it for a living gobble up crumbs of information, much the way Sovietologists once looked for the slightest changes at the Kremlin.

Consider, too, that attempts to elicit information from Souter’s former clerks, normally voluble law professors among them, have been met with stony silence.

But one former senior government lawyer who declined to be named because he practices in front of the Supreme Court said, “It’s getting late, even for Souter.”

For the last three years, at least, the identities of Souter’s clerks for the upcoming term have been known by now. Gossipy legal blogs actively seek out the names of the clerks — recent graduates of the nation’s top law schools who go on to lucrative careers and, sometimes, the Supreme Court.

Clerkships are highly sought and applicants have been known to interview with multiple justices in the hopes of landing a job at the high court. Chief Justice John Roberts and Justices Stephen Breyer and John Paul Stevens were clerks when they were younger.

Clerks typically start work in July and spend the summer poring over appeals to decide which ones they think the court should hear. Justice Clarence Thomas recently said of new clerks that “the way that we work, there is no start up time. You hit the ground running and you’re ready to go.”

So if Souter hasn’t made his choices yet, but plans to do so, he is not giving them much advance notice.

Still, tantalizing as his silence is, there are other possible and less momentous explanations.

Artemus Ward, who co-wrote a book on law clerks called Sorcerers’ Apprentices, said he doubts that Souter is planning to retire to New Hampshire this summer, much as the justice dislikes Washington and yearns for his old farmhouse.

“I wouldn’t put too much stock in the clerk-hiring game as an indicator” that Souter plans to retire, said Ward, a political science professor at Northern Illinois University.

The justice always has been the last to hire, Ward said, because he likes to gauge how people do as clerks for lower federal court judges. Yet other justices are hiring earlier and earlier. Some even have made offers to lawyers for the middle of 2010.

“So it may very well be that Souter is waiting longer out of frustration with the process,” Ward said.

Also possible is that Souter has not finished his hiring, but has sworn the others to secrecy until he’s done. This is the Supreme Court, after all, which has resisted cameras and other intrusions.

Less likely, but not inconceivable is that the rough economy is affecting even the top of the legal profession and that Souter’s current crop of clerks will be around for another term. Or another justice will leave this summer and Souter already has agreed to employ his colleague’s clerks.

The other candidates for retirement are Justice Ruth Bader Ginsburg, 76, and Stevens, 89, although neither has betrayed any intention of leaving. Ginsburg, who is undergoing chemotherapy following surgery for pancreatic cancer in February, said she wants to serve into her 80s.

Even if Souter were intending to step down, he might be likely to hire clerks with the expectation that they would remain at the court working for his successor or another justice. Several justices have described the mountain of legal briefs that awaited them when they joined the court, so having clerks in place would help, Ward said.