Foreign Citizens as Judicial Clerks Judges

by Peter Spiro

Eugene Volokh has a post over at the Conspiracy on the eligibility of foreign citizens to serve as judicial law clerks. As he notes, many are, so long as they hail from a country with which the U.S. has a defense treaty. I know of at least one instance of a non-citizen (from an EU state) clerking at the Supreme Court.

There is something odd about this, perhaps, at least in historical perspective. Why should someone with no necessary tie to the community be influencing U.S. constitutional law on an issue like abortion (and why is it relevant that the country in which the person holds citizenship has a defense treaty with the US)?

But the fact is that citizenship eligibility requirements have been breaking down across the board, and why not. In the EU, non-citizens of other EU states are eligible for non-policymaking civil service positions. In the US, although competitive civil sevice position remain largely closed off to foreigners, states have liberalized their own citizenship criteria, partly in response to constitutional holdings from the courts but also on their own, beyond what the courts have required of them. This liberalization makes sense, as notions of loyalty become increasingly archaic in everyday public employment.

Incidentally, there is no constitutional requirement that federal judges be citizens of the United States (in contrast of course to the President, Senators, and Representatives). But unsurprisingly there doesn’t appear to be any instance of a non-citizen being appointed to the bench.

Update: Paul Horwitz has these thoughts over at Prawfsblawg.

http://opiniojuris.org/2006/07/27/foreign-citizens-as-judicial-clerks-judges/

3 Responses

  1. Foreign Citizens as Judicial Clerks:

    Every year, a few of our top students are foreign citizens. Can they apply for federal judicial clerkships?

    The answer it turns out, is generally yes, if they’re from coun…

  2. Frankly, I find it both disturbing and maddening that any non-U.S. citizen is a federal law clerk when there are thousands of willing and eager U.S. citizens applying for these same spots. (I know, I was one).

    Mr. Spiro states:


    “the fact is that citizenship eligibility requirements have been breaking down across the board, and why not. In the EU, non-citizens of other EU states are eligible for non-policymaking civil service positions.”

    Who cares what the EU does as a matter of determining U.S. practice? It’s irrelevant, and frankly the EU’s longterm stability is far from assured at this point given its growing fiscal problems and internal strife.

    The fact of the matter is that people, whether by immediate need, desire or broad aspirations, have always throughout history given their allegiance to some local/regional/national body. A non-U.S. citizen would never pass confirmation for the federal bench and any president who did nominate such a candidate would be soundly and rightfully condemned.

  3. Regarding objective criteria for the selection and appointment of federal judges in the United States, I would be interested in knowing if anyone can point to a source (statute, constitution, etc..) where they may be identified.

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