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Monday, November 04, 2013

A response to Prof. Stone: The justices' "revealing" hiring practices

In this piece, Prof. Geof Stone proposes that a "difference between conservative and liberal justices" is that

"the conservative Justices are determined to spend their time with pre-cleared conservative law clerks. . . .  Whereas the more liberal justices were clearly interested in exposing themselves to a range of different viewpoints and having the positions challenged, the conservative justices went way out of their way to ensure that their law clerks were already in sync with their judicial ideology."

In support, Geof points to and characterizes as "revealing" the fact that "[o]f the 20 law clerks appointed this Term by the five conservative Justices . . . or an astonishing 90 percent -- clerked last year for a Republican-appointed judge. Of the 16 law clerks appointed this Term by the four more liberal Justices . . . clerked last year for a Democratic-appointed judge."  

Let's put aside questions about whether the Republican appointees for whom the "liberal" justices' clerks worked were or are "conservatives" and about how representative this Term's hiring is of the justices' practices over time.  And, let's take it as given that almost any and every justice, at least sometimes, takes into account whether a clerkship applicant's worldview, outlook, philosophy, etc., "fits" well with his or her own.  Still:  Each of the clerks that Geof is talking about, regardless of the party of the President who appointed the Court of Appeals judge for whom he or she clerked, had a resume, a work history, several recommendations, a publication history, a variety of life experiences, etc., and so is not reducible to his or her judge's partisan affiliation.  

In order to say with any confidence that "conservative" justices are hiring who they hire in order to avoid encountering a variety of views (or, for that matter, that the liberal justices were doing what they do in order to encounter such views), or even whether such isolation is a by-product of what they are doing, it seems we would need to know a lot more about these clerks -- as, presumably, the justice who hired them did -- than the party of the President who appointed his or her judge.  Who knows?  Maybe the numbers to which Geof points simply suggests that Republican-appointed "feeder" judges are more willing to hire "liberal" clerks (and to support their applications to the justices) than Democratic-appointed judges are willing to hire and support "conservatives"?  Again, it seems we need to know more before we can confidently make the ideological cocooning charge. 

(In keeping with the saying that "data" is the plural of "anecdote," here is some more data:  One of my co-clerks for Chief Justice Rehnquist was a brilliant and engaging center-left graduate of the University of Chicago who clerked for a Republican appointee and who had been strongly recommended by a "conservative" professor.  For one of his co-clerks, he was stuck with me, a "conservative" who had done anti-death penalty work, whose recommenders were "liberal" academics, and who had been blessed with the chance to clerk for a truly great judge, appointed by President Carter.)

Geof makes some other points, about credentialling and patronage, that raise interesting but (I think) different questions.  

Posted by Rick Garnett on November 4, 2013 at 09:01 PM in Rick Garnett | Permalink

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The article is silly because it tries to takes something that is already KNOWN to be true by anyone more aware of how clerks are hired in the first place and tries to share that fact with the public as political commentary by making an argument using small sample statistics (90% of 20 people) and questionable labels or definitions (how many Republican-appointed appellate judges even serve as Supreme Court feeders as opposite to Democrat-appointed judges, how much do students game this system by signaling their ideology, etc.) to demonstrate that it is true that more conservative justices overwhelming hire people with ideological compatibility.

What's strange is that he isn't really saying HOW he came to know this information. Professor Stone didn't need to look at the # of clerks hired who clerked for Republican-appointed presidents. He knows this information because elite law schools like Chicago are extremely active in the process of helping students get hired as law clerks. When I was a student, it was very clear that the coordinated efforts to get clerks hired involved some level of filtering or matching based on a student's expressed or perceived ideological identification. Maybe it has changed since then, but I doubt it. And this seemed to be coming from the judge's preferences and the ways that professors as recommenders, particularly former clerks themselves, chose to push for or advocate a specific hire (or at least interview). Let's face it, it would be rare to find a student who wouldn't want a Supreme Court clerkship (or an appellate clerkship with a highly regarded judge), no matter which justice or judge was hiring!

So it seems disingenuous for someone who is part of the same machine that is actively helping judges and justices filter candidates based on their ideology and pushing candidates to specific law clerk slots based on the candidate's known ideology to then purport to be 'noticing' the statistics how conservative judges hire. If it's really a problem for conservative justices to be living in a bubble of people with too much of the same world view, then perhaps it's time for law schools like Chicago, Harvard, Yale, Stanford, etc. to competing against each other for these precious spots for their own students by engaging in some of the ideological filtration.

Posted by: chicago alum | Nov 4, 2013 9:48:16 PM

In my experience, liberals heavily outnumber conservatives at the law schools that tend to generate the pool of circuit clerks. On the other hand, the federal judiciary is roughly evenly divided between GOP and Dem appointed circuit judges. As a result, GOP-appointed circuit judges regularly hire liberal clerks, while Dem-appointed circuit judges almost never hire conservative clerks. I think this explains the trend Stone identifies: Justices who want to choose liberal clerks can choose clerks who worked for Dem or GOP appointed circuit judges, while Justices who want to choose conservative clerks will choose mostly or entirely from GOP appointed circuit judges.

Granted, it's true that some GOP-appointed Justices tend to only hire clerks who they think are ideologically compatible. But the same is true with some Dem-appointed Justices. Consider Justice Ginsburg, for example. According to Stone, Justice Ginsburg is a confident Justice who is among the group that should (by his theory) regularly hire conservatives. But if you look at the list of Ginsburg clerks, I don't see any that are conservative. I spot one on the list who is libertarian -- David Post, who had clerked for RBG on the DC Circuit and came back to clerk for her during her 1st year on the Supremes. But David is hard to pigeonhole ideologically, and over the others on the list, I don't spot any that I think of as conservative. (Although if there are some, that would be interesting to know, too.)

Posted by: Orin Kerr | Nov 4, 2013 10:29:38 PM

It's also odd that Stone does only a one-year, intra-Court comparison, and doesn't look at trends over time or how previous hiring patterns related to the percentage of federal judges by party of presidential appointer at those times (although the whole mechanism is not all that old). I note for the record that Stone clerked for J. Skelly Wright before going on to clerk for Brennan. Wright was a Democratic appointee and a popular feeder judge for liberal justices, although not quite as famous for it as David Bazelon; the Bazelon-to-Brennan move was, back in the day, the Tinkers-to-Evers-to-Chance of liberal clerkship movements. Really, although I am willing to draw stronger conclusions than Rick about the existence of ideological cocooning, Stone's piece is weak through and through.

Posted by: Paul Horwitz | Nov 4, 2013 11:00:29 PM

Two holes in the argument:

1. Scalia liberals. Name the equivalent phenomenon from a liberal Justice.

2. Perhaps Republican-appointed feeder judges on the lower courts are more likely to pick clerks without regard to ideology. Example: who do you think picks more ideologically identifiable clerks, Posner or Reinhardt? Not even a close question.

Posted by: WT | Nov 4, 2013 11:10:26 PM

Scalia liberals are very rare in practice actually. Point 2 is true for Posner, though not for some others.

Posted by: Anon | Nov 5, 2013 12:08:59 AM

Anon -- think of S. Williams, Boudin, Kozinski, D. Ginsburg. All Republican-appointed, all have hired liberal clerks quite often.

Scalia liberals aren't that rare either. See Tara Kole's 2009 interview at bitterlawyer.com/tara-kole-the-life-times-of-an-a-list-entertainment-lawyer/: "Scalia hires four clerks a year, and he always hires a more liberal clerk. That was me, and I usually try and make that clear."

Posted by: WT | Nov 5, 2013 11:03:50 AM

Scalia's said many times in interviews in the past few years that he rarely hires liberals anymore, because (he claims) it's hard to find one who takes constitutional or statutory text seriously.

Posted by: anon | Nov 5, 2013 12:44:28 PM

Fair enough. So I'll make it easier: point to a liberal Scalia equivalent who, at any time in the past 60 years, made it a practice to hire an outspoken conservative even 5 or 6 times.

Posted by: WT | Nov 5, 2013 1:32:38 PM

I don't mean to be too particular about it, but you're moving the goalposts. Not all of Scalia's "liberal clerks" have been outspoken liberals. Nor is it clear why you include "made it a practice" as a requirement. That was a "practice" for Scalia precisely because he believed in hiring conservative clerks, plus a liberal to check his judgment. I doubt you would have much trouble finding prominent liberal judges or justices who have hired conservative clerks from time to time or even frequently, if you leave out the "outspoken" part. Two caveats: most of those would have been mainstream conservatives, not (at the time) Goldwater conservatives, and of course what constitutes an acceptable conservative is a rather fratricidally contested point these days. Also, none of this means that I think there aren't plenty of liberal judges who insist on liberal clerks. There certainly are, and anyone who thinks otherwise would be in the grip of a delusion.

Posted by: Paul Horwitz | Nov 5, 2013 2:58:29 PM

I'm not moving the goalposts in any way whatsoever. My original question: Scalia himself and his former clerks have claimed that he deliberately hires one liberal clerk a year. How many liberal Justices have ever even claimed the same thing?

But even if Scalia has only followed through on this 6 times or so (which is the worst anyone can say), the question is still the same: how many liberal Justices can say that they too have a Scalia-like policy that they too followed through with 6 times?

Posted by: WT | Nov 5, 2013 5:45:44 PM

Is law clerk hiring really so dependent on the applicant's ideological background? Jezz, law sure is a despicable profession. To think that judges endorse this view is downright depressing.

Posted by: depresssed | Nov 5, 2013 10:07:11 PM

Not to worry: It's mostly based on whether they went to one of about five schools and their first year grades. Cheer up!

Posted by: Paul Horwitz | Nov 5, 2013 10:51:21 PM

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