Currently, Justice Samuel Alito is the only non-participant. (Justice John Paul Stevens was the only member of the court who did not participate in the cert pool at that time. Kennedy was among the eight members of the court at that time who participated in the “cert pool,” in which all the clerks from the participating chambers divide the thousands of petitions for a writ of certiorari filed each term, with one law clerk reviewing each and writing a memorandum recommending a grant or denial that is then shared among all the other chambers in the pool. Gorsuch, 26 years old at the time, was a law clerk serving Justice Anthony Kennedy as well as retired Justice Byron White. United States came before Gorsuch not in his current job as a federal appeals court judge but as one of dozens of cert petitions he analyzed as a Supreme Court law clerk during the October 1993 term. “Does require a ‘nexus’ between the United States and a non-resident alien to apply to him extraterritorially a federal criminal statute?” wrote Gorsuch, who is President Donald Trump’s nominee to succeed the late Justice Antonin Scalia on the Supreme Court. The case in front of Neil Gorsuch presented “an interesting constitutional question,” as he put it.
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