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Wednesday, February 15, 2006

A Federalist on the (State) Supreme Court

From Howard (natch) comes the news that Colorado's solicitor general, Allison Eid, who is also a professor at the University of Colorado's law school, has been appointed to the supreme court of that state.  Congratulations are in order to her.  For con-law professors teaching federalism (Rick?), who want to explain to their students why they read so many cases that come before Lopez and Morrison and Raich, why they spend at least a couple classes going through the Shreveport Rate Case and the Lottery Case and the Child Labor Case and all the rest, why we don't just "teach the rule," I have found that Eid's recent article, "Teaching New Federalism," 49 St. Louis U. L.J. 875 (2005), is a great, short, readable resource that students appreciate.

Her appointment makes me reflect yet again on an odd fact: that although many self-styled federalists, New Federalists, or Federalist Society members believe strongly and sincerely that a substantial part of legal power ought to reside in the states, the path for career advancement for them, as for everyone else, remains the lock-step march through the federal courts in the clerkship process (with, as a hoped-for end, a berth in a standard Eastern or Western big-city law firm), and the standard heros of the movement remain federal, not state, judges.  One might ask why that is.  One could make the argument that as long as the federal courts are the ones determining the shape of the federal-state balance, it's best to go to the federal courts to help redraw that balance. 

I'm sure there's some truth to that, strategically speaking, but I don't think that's the real purpose motivating the preference, for federalist types and everyone else, for clerking on a federal rather than a state court.  Rather, I suspect the same old motivations impel this preference: that the federal courts are more prestigious; that they look better on one's resume; that one would rather wield more rather than less power; that if the preference for federal over state courts for reputational purposes is a result of nothing more than path-dependence, then so be it; that federal courts are "sexier," and state courts are "ghetto."   

I can accept all this, while still feeling that there is a certain air to this general preference on the part of federalist students at elite law schools for federal over state clerkships (shared by the influential professors who steer them to federal courts in the clerkship process) of refusing to walk the talk.  In this sense, making the choice to "go federal" rather than clerk on a state level is not dissimilar to a strong believer in a small federal government who, for reasons of ambition and because some people believe it's better to live in Washington than Paducah, wants nothing more than to be appointed to serve for a large federal agency, and who then exerts his or her efforts to increasing the size and scope of that agency and its involvement in public policy.

I sincerely wish all students considering clerkships would give greater thought to clerking on the state court level; although the casebooks and newspapers may be filled with federal cases, there is a lot of action on the state court level, and those, especially, who view the states as the most important repository of government power ought to bring their skills to the legal process at that level.  [more...]

Happily, from time to time, a state court judge amasses a sufficient reputation that prestige and career advancement though clerking for that judge on the state court level are possible; I think of former Massachusetts SJC judge Charles Fried, also a Harvard Law professor, whose former clerk Rachel Brand went on to clerk for Justice Kennedy and now serves as head of the Office of Legal Policy.  If I recall correctly, Justice White also from time to time took law clerks who previously had served as clerks on state courts.  Here's hoping Justice Eid will serve as another beacon for would-be clerks of a federalist bent who believe that honoring federalism means actually working in the "several States," rather than following the same old paths to power in the standard network of federal courts and large urban law firms.   

Posted by Paul Horwitz on February 15, 2006 at 03:40 PM in Law and Politics | Permalink


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I don't think anyone's mentioned that most state judgeships are not lifetime appointments, and in fact often are elective offices. Those are pretty significant disincentives compared to the federal judiciary.

Posted by: Dan Domenico | Feb 16, 2006 7:00:32 PM

It's very possible that my rationale fails to accurately explain the motives of those who seek office in the Federal judiciary, but I do think that it remains necessary for people who believe in Federalism to occupy the Federal judgeships - at least, until we go mad and repeal the supremacy clause. ;) The Federal courts are the gatekeepers of the relationship between state and federal power, and so even if someone is genuinely enthusiastic about working at the state level (not, incidentally, that I think a desire to personally exercise a power at the state level is a prerequisite for believing that someone ought to exercise that power at the state level), there is still a need - and thus a duty - to ensure that the courts are maintaining an appropriate understanding of Federalism (which is to say, allowing incursions of neither state power on federal, or vice versa). I fully agree with you about the prestige factor, but I think that either way, it should remain a goal to "get the right judges."

Also, the line about the fulcrum and the lever is a shiny restatement of the Acton dictum.

Posted by: Simon | Feb 16, 2006 4:31:19 PM

Thanks for the empirical insights so far; that's why we here at Prawfsblawg love our readership.

Simon, I appreciate your saying I've hit the nail on the head. But while I think this might be -a- justification, and a reasonably good one, for federalists seeking federal positions rather than state positions, I have two problems with it. First, I have doubts about its empirical accuracy, and especially that this supplies the motivating factor for would-be law -clerks-, as opposed to judges. I continue to believe that prestige, salary, path dependence, and power (in a different way than the way in which you mean it, I think) are the prime motivating factors; to paraphrase Posner, "What do federalist judges and law clerk applicants maximize? The same things as everyone else. One might thus read my post as a plea to realign the incentives so that there is greater prestige and possibility for career advancement, and hence greater numbers of interested persons, in working in the state courts and state and local government. But I doubt this will happen all that easily; as I suggested, some people would much rather criticize Washington from -within- Washington than from somewhere else; you get invited to more impressive parties there. Second, I am not sure I find the justification, as you eloquently describe it, entirely normatively attractive. I appreciate the line from Palmerston about occupying power in order to prevent others from doing so, but I also seem to recall some useful quotes about power and human nature from both Lord Acton and James Madison; and one tale of the high-spending Bush 43 government and the current Congress is surely not just about "true" or "false" conservatives, but about the natural effects of "occupy[ing] the levers of power." Give me a lever long enough, and a fulcrum strong enough, and I will naturally want to use them. Again, I think your explanation (and mine) is attractive at some level, but I would love to see the incentives shift enough to encourage a commitment to the importance of state government and state courts to manifest itself in good people actually working in state courts and government. (Not that they don't now! I address this to our readers who are already in state courts and state government. My point is about those who emphasize the importance of local power but seek entry to elite national governmental institutions, and national institutions alone.)

Posted by: Paul Horwitz | Feb 16, 2006 2:52:34 PM

As far as state clerkships go, I think that one needs to examine, primarily, the, for better or worse, "high end" state court clerkship potential- the law, after all, is very region-snobbish.

That means California, New York, and, I suppose, Illinois.

The California court system, including the Supreme Court of California, not only hires only permanent clerks, but usually demands significant pre-hiring experience from them.

Illinois, at least fairly recently (mid-1990s) was the opposite, and employed primarily term clerks, similar to the federal system.

I am unfamiliar with the Court of Appeals in New York, but I bet that someone here is familiar and could enlighten us.

Posted by: The Angry Clam | Feb 16, 2006 2:38:38 PM

As a former state supreme court clerk I can say that Kate's thesis is actually incorrect. At least at the appellate level, most state judges have "temp" clerks like federal judges do. State trial-level judges often do have perm. clerks.

Posted by: Former State Clerk | Feb 15, 2006 11:38:23 PM

The answer to your questions is this: Almost nobody cares about federalism qua federalism. Most people who speak of limiting the power of the federal government in some contexts when it works for them. Most large corporations are "federalists" when it comes to the Clean Water Act not because federalism is good in itself, but because less governmental regulation is good for them.I would think that most corporations that do business in multiple states - and the more states they do business in, the more force with which I would think this would apply - would be fully in favor of Federal power rather than federalism. Would you rather your compliance department had one, Federal, regulatory scheme to deal with, or fifty different regulatory schema? It would seem to me that what large corporations that do business throughout the nation want is uniformity, not diversity; while they may indeed want less regulation, I don't think it follows that divesting the Federal Government of regulatory powers in any area where states are likely to step in and fill the gap is in the interests of a corporation.

I think Paul hit the nail on the head, by the way, in saying that "as long as the federal courts are the ones determining the shape of the federal-state balance, it's best to go to the federal courts to help redraw that balance;" even if you have state judiciaries packed with federalists, that avails you absolutely nothing if the Federal judiciary is packed with "take take take" types. Even when not actively returning power to the states, it should be a goal of the Federalist movement to at least occupy the levers of power to prevent further taking of power (recalling the Palmerston mantra of the Tory party, that it "does not exist to make changes, but to occupy power in order to prevent others from doing so").

Posted by: Simon | Feb 15, 2006 9:42:47 PM

Kate raises a good empirical question. I can't answer it because I don't have the numbers, but I welcome input from anyone who's seen relevant data on the prevalence of permanent law clerks on state high courts as opposed to on federal courts. I would make a couple of observations. First, one would have to look at a couple of factors: are there more permanent law clerks because of a conscious choice by state court judges to seek "well-trained and experienced professionals," or are they responding to a weaker market for state court clerks by offering additional incentives (job security, state benefits, etc.); and if the prestige level of state court clerkships (at least on state high courts) went up, wouldn't the demand for those clerkships, allowing judges to pick the cream of the law student crop? If so, would they revert to shorter-term clerkships, or not? Also, I'm not sure whether permanent clerks maintain old-boy (or good-old-boy) networks as well as short-term clerks. I suppose it depends on the purpose you're after, if one assumes that this kind of thing is indeed on the judge's mind; is it to create patronage positions, or is it (as with short-term federal clerk positions) to seed the elite precincts of the law with your fans and followers? (Although perhaps the point shouldn't be whether it's on the judge's mind, but what kind of job structure has been set up by the legislature that is budgeting these positions.) Finally, I would note that in my limited and non-empirically tested experience, I am seeing more federal judges, at the district court level certainly but also at the appellate court level, with career clerks. One could theorize a variety of reasons why this might be so, with Kate's thesis being one of those; perhaps, to theorize a little further, a federal judge's willingness to hire career clerks is also related to his or her views of the likelihood of promotion, or the judge's interest in attaining other goods like reputation and influence. One could also see in it, similar to Kate's comment, something like Posner's description of the increasing bureaucratization of the judiciary and its machinery.

Posted by: Paul Horwitz | Feb 15, 2006 7:16:24 PM

I thought the federal clerkship routine was simply a result of state judges having permanent clerks… which begs the question of why most state judges have permanent clerks. Could it be because state decisionmakers understand the value of having well-trained and experienced professionals in these important positions? To be sure, permanent clerks help to maintain good-ol'-boy networks (and outright corruption) too.

Posted by: Kate Litvak | Feb 15, 2006 7:05:42 PM

There is another side to this: People tend to want to clerk for brilliant judges, and brilliant state court judges unfortunately are more rare than we would want. The best of them have tended to be "feeders", too: Traynor, Ben Kaplan, etc. As more law gets federalized, state court judges do less, and fewer people want to be state court judges. Charles Fried is a good example: he was so bored he left after just a few years and went back to Harvard.

Posted by: thelawgal | Feb 15, 2006 5:51:04 PM

Of course, Rachel Brand didn't get the Kennedy clerkship right away; it was only after working in the WH Counsel's office for one of Kennedy's screeners. She might have eventually gotten a Supreme Court clerkship anyway, of course, but I suspect her WH coworkers helped her more than Fried.

Posted by: Anonanon | Feb 15, 2006 5:04:17 PM

Paul, Allison Eid is a friend and -- like you, apparently -- I found her "Teaching New Federalism" paper really helpful. And, I agree with you that more good law students should aim for clerkships on good state courts; I harangue my students on this point. (One funny subtext here, though, is that I suspect Allison will move to the Tenth Circuit, or beyond, fairly quickly; at least if vacancies arise during Republican administrations.)

Mike makes a fair point about the opportunism that animates many "federalism" arguments (on "both sides" of the political fence); that said, I'm pretty sure there are more than three principled structural-federalism folks!

Posted by: Rick Garnett | Feb 15, 2006 5:01:13 PM

The answer to your questions is this: Almost nobody cares about federalism qua federalism. Most people who speak of limiting the power of the federal government in some contexts when it works for them. Most large corporations are "federalists" when it comes to the Clean Water Act not because federalism is good in itself, but because less governmental regulation is good for them.

Likewise, most people who oppose federalism don't oppose it for its own sake, but because limiting the role of the federal government might mean that cherished laws (again, the CWA comes to mind) might not be enforced for vigorously.

I can think of maybe three people who would take the "good and the bad" as it relates to federalism. All the rest look for the desired result, and then wrap that result up with some principle like federalism.

Posted by: Mike | Feb 15, 2006 4:19:20 PM

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