From Posner to Scalia

It’s rare for a young law school graduate to have the opportunity to clerk for an esteemed jurist on the 7th Circuit Court of Appeals or the U.S. Supreme Court. To do both? That’s almost unheard of—as long as you haven’t heard of Aaron Van Oort.

In July 1999, shortly after graduating from law school, Van Oort began a clerkship under Chief Judge Richard Posner.

“[It was] the most purely legal job I’ve ever had and expect I ever will have,” says Van Oort, now a partner at Faegre Baker Daniels focusing on appellate law and class action litigation. “Judge Posner handled all of the administrative work himself or through his secretary, so the only thing my co-clerk and I had to do was help him prepare for oral argument, then help edit and research opinions afterwards.”

What intimidated him about working with Posner ended up being the part of the clerkship he enjoyed the most.

Rather than having his clerks write bench memos to help him prepare for oral arguments, Posner would have them discuss each case. The judge listened silently as Van Oort and his co-clerk presented cases and recommended how to resolve them. “Only after we had committed to our positions would he share his views,” he says. “I was 25 years old and fresh out of law school. Judge Posner was a genius and a legal giant. It was incredibly intimidating. But I came to love the exchange—and ever since, I’ve enjoyed every chance I get to stand up in court and talk with judges about the issues that matter to my clients.”

By the fall of 2000, Van Oort had moved on to the U.S. Supreme Court. As a clerk to Justice Antonin Scalia, Van Oort assisted with each of the four primary categories of the court’s work: deciding which cases to grant cert, analyzing merits cases to prepare for oral argument and decision, drafting opinions and handling applications for stays in capital cases.

“I don’t honestly know what convinced Justice Scalia to give me an interview, but I suspect that it was a letter from Judge Posner,” says Van Oort, who had unsuccessfully applied to the Supreme Court during his third year at the University of Chicago Law School. “Within a matter of weeks, I got a call from Justice Scalia’s chambers inviting me to an interview.”

The timing couldn’t have been better. Van Oort ended up clerking during a little case called Bush v. Gore.

“I remember looking out the windows of my office at the court and seeing huge crowds of partisans waving signs. Sometimes they organized into marches, and we could hear the chants through the walls,” he says.

When the court’s opinion was released, Van Oort and his fellow clerks watched the live TV coverage from a conference room. “It felt surreal to watch the reporters, standing just on the other side of the wall, read the opinions and try to discern and communicate what they meant to the American people,” he says.

Bush v. Gore was memorable, but clerks’ conferences were favorite moments for Van Oort. Each week that the court held oral arguments, before the justices met to vote, Scalia would call all four clerks into his office.

“He would shut the door, and we’d not come out until he had decided for each case how he planned to vote and why,” Van Oort says. “The debates were fierce, and the justice used the process to test and refine his views on the case.”

Van Oort says what he values most is what he learned from each of the legal giants.

“From Judge Posner, I learned that, no matter how strong your authority is, you’re going to lose if your position doesn’t make sense,” he says. “From Justice Scalia, I learned that, no matter how much sense your position makes, you’re going to lose if you don’t have authority. So now when I’m litigating cases for my clients, I continually ask, ‘Do I have authority, and does my position make sense?’ And it turns out that’s a pretty good way to prepare to talk to courts.”