The Day I Met John Roberts Changed My Life

How my escape from private practice led to a clerkship with Justice Scalia

I first met John Roberts in the fall of 1990. He was principal deputy in the Office of the Solicitor General, and I was interviewing for a line position in his office. In a way that neither of us could remotely have anticipated, my interviews that day set me on the path that led years later to my extensive writing in support of his Supreme Court nomination.

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This post is much more personal—much more about me and a momentous, and objectively foolish, career decision I made—than any of my other Confirmation Tales posts. It might well be of interest only to my kids. (“Nope, not even to us!,” I hear them saying in my mind’s ear.) But it bears on how I came to be extensively involved in every Supreme Court confirmation battle over the past three decades. So I ask you to indulge me.

Back in the summer of 1990, I was flourishing as a litigation associate at what was (and, I gather, remains) arguably the best law firm in the country at which to practice, Munger, Tolles & Olson in Los Angeles. I knew that I would make partner at the law firm by the end of 1991, and I would be set for life. But as I reflected on the prospect, I was filled much more with dread than with joy. “I don’t want to do this for the rest of my life,” I said to myself. “So why should I do it for one second more?”

My impatient question had an obvious answer: pocket the partner credential, and leverage it later into some other job. But patience has never been my strong suit, and I didn’t want to wait. I was 30 and single, so why not try something else? Plus, I figured, the credentials and goodwill I had built up gave me the freedom to take some big risks.

So in early September 1990, I surprised folks at the firm by informing them that I had decided to leave the firm. “What will you be doing?,” they asked. “I don’t know,” I responded. But announcing a clear decision to leave gave me the spur I needed to figure that out.

(Careful readers with strong memories might recall that I’ve previously identified my becoming president of the Ethics and Public Policy Center as “the second of two objectively foolish employment decisions that would define the course of my career.” Leaving Munger, Tolles & Olson just before I would have made partner was the first.)

In October 1990, I traveled to D.C. to interview for a handful of jobs, including two in elite offices in the Department of Justice: assistant to the solicitor general in the Office of the Solicitor General and attorney-adviser in the Office of Legal Counsel. Neither set of interviews went well, but one of my interviews with one of John Roberts’s fellow deputies is especially memorable for how poorly it went.

John Roberts with George W. Bush in 2005

Larry Wallace was a longtime career deputy in OSG and no friend of conservatives. I had just co-authored an amicus brief in a hot-button abortion case (Rust v. Sullivan) that was to be argued at the end of October, and whether it was that or something else in my record, Wallace was stunningly hostile to me.

Wallace had a notoriously messy desk, with briefs piled in a mound so high that his colleagues would occasionally conduct scavenger hunts to see who could find the oldest document. But I barely had time to take in the scene when he opened our conversation by making this series of declarations, in very much these words:

1. “You’re lying on your résumé. No associate has this level of responsibility.” (Yes, he explicitly (and wrongly) accused me of “lying.”)

2. “We don’t have any vacancies.”

3. “Even when we do have vacancies, you’re not qualified to work in this office.”

4. “Even if you were qualified, we have more qualified applicants.”

5. “Even if we didn’t, we could find them.”

6. “Even if we couldn’t, we wouldn’t have to fill any vacancies.”

I believe that, in a bit of a daze, I went straight from my interview with Wallace to my interview with John Roberts. I recall very little about that interview, beyond that it was pleasant and normal. Ditto for my interviews with Solicitor General Ken Starr and deputy David L. Shapiro (my brilliant federal-courts professor on sabbatical from Harvard law school).

I certainly did not come away from the interviews with the thought that a job offer might be forthcoming. For all of his extravagant hostility, Wallace spoke considerable truth in his third, fourth, and fifth declarations. OSG liked to hire former Supreme Court clerks, who were familiar with the inner workings of the Court. I did not have that valuable credential, nor had I even argued an appeal, nor was anyone in OSG personally familiar with my work. So no matter how glowing my recommendations were, I was a longshot candidate from the start. Wallace’s obvious determination to throw his very hefty weight against me seemed to doom any slim chance I had.

* * *

In early December 1990, I was all set to accept an offer to begin work as a federal prosecutor with the U.S. Attorney’s Office in Los Angeles. I hadn’t heard back from OSG or OLC, but I wasn’t particularly expecting to.

My phone at work rang. “Hello, Ed, this is Ken Starr.”

Why was the SG himself calling me?!? Would he be making me an offer after all?

“I’m sorry to say that we’re unable to make you an offer at this time,” Starr continued, “but would you be interested in clerking for Justice Scalia?”

I was stunned. If you had asked me to set reality aside and pick an ideal next job, clerking for Justice Scalia would have been at the top of my list. I had unsuccessfully interviewed for a clerkship with Scalia back in August 1986, in the window between the Senate Judiciary Committee hearing on his nomination and the Senate’s unanimous vote to confirm him. But when I started my job search in 1990, I was more than five years out of law school—no one clerked so late back then—and I was looking for a job that would begin soon. The thought of applying for a clerkship with Justice Scalia had never crossed my mind.

“Absolutely!,” I replied to the SG.

Two weeks later, I was in D.C. to interview for a clerkship with Justice Scalia. It turns out that he hadn’t completed his hiring for the set of clerks who would start in July 1991. Things turned out better for me this time, and I would soon begin my career in D.C.

* * *

A dozen or so years later, I was principal deputy in the Office of Legal Counsel and in that capacity was designated by the Attorney General to serve as the ethics official for all of the lawyers in the Department of Justice’s highest offices. So I became Larry Wallace’s ethics adviser. I never found occasion to remind him of his interview of me.

I ran across the late Ken Starr on various occasions in the ensuing decades. I thanked him for connecting me with Justice Scalia, but I never inquired of him just how that happened. I have zero reason to think that John Roberts played any part in the connection—pardon the teaser title of this post—but I will remember the occasion on which I first met him as the day that ended up redirecting my career.