Polarizing Supreme Court Law Clerks?

by Ed Whelan

Yesterday’s New York Times has a front-page story reporting that the “more conservative justices are much more likely than were their predecessors to hire clerks who worked for judges appointed by Republicans” and that the “more liberal justices are more likely than in the past to hire from judges appointed by Democrats.”  The article identifies this trend as a “form of political polarization” that “amplifies the ideological rifts on a polarized court.”  Evidently it is something that the concerned reader is expected to decry.

A few observations:

1.  Orin Kerr persuasively argues that ideological hiring by the justices is a solution to a problem:

Supreme Court Justices solve the principal/agent problem [that is, the problem of ensuring that agents act in the way the principals wish] by tending to hire law clerks who generally agree with their bosses’ views of the law. That agreement gives the Justices more confidence that their law clerks will be faithful agents without the Justices having to engage in costly monitoring of law clerk performance. 

He also disputes the article’s suggestion that the practice of ideological hiring is more common among conservative justices:

Because the pool of potential circuit clerks is more liberal than the pool of existing circuit court judges, ideological mixes between clerk and judges tend to be one-way. Specifically, it is common for many GOP-nominated circuit court judges to hire liberal clerks. After all, most of the applicants out there are liberal. Even if you slightly prefer conservative candidates, you’re likely to end up with lots of liberal clerks given the pool. In contrast, it is rare for a Democratically-nominated circuit court judge to hire a conservative clerk. (Not unheard of, but rare.) If you’re a Democratically-appointed circuit judge, and you slightly prefer liberal clerk candidates, you’ll find you have tons of qualified liberal applicants to choose from. 

This dynamic then leads to the chart we see in the Liptak article with conservative Justices hiring almost exclusively from GOP-nominated circuit court chambers while liberal Justices have a more mixed record. If you’re a conservative Justice, you’ll find ideological matches only in the ranks of alumni of GOP-appointed circuit court judges. On the other hand, if you’re a liberal Justice, you’ll find ideological matches among the alumni of both Democratically-appointed circuit court judges and some GOP-appointed circuit court judges.

2.  The article asserts that “ideological orthodoxy can dampen the robust discussions in chambers that clarify issues and shape rulings.”  If “ideological orthodoxy” refers to political ideology, then I don’t dispute that there is a downside to ideological uniformity in a chambers.  That uniformity removes one (but only one) of the checks available to a justice to ensure that he or she is not simply indulging his political preferences.  If “ideological orthodoxy” refers to judicial philosophy, then ideological uniformity may also have a downside for those justices who haven’t settled on their judicial philosophy.  But I don’t see why a justice who has settled on his or her judicial philosophy would see any advantage in having a law clerk who rejected that approach.  (Of course, I wish that those justices with settled unsound approaches had clerks who would persuade them to change.)

To make the point more concretely:  The article states that Justice Scalia “used to seek out candidates from the opposite ideological camp.”  My understanding is that Scalia sought (and perhaps still does seek) one or two textualists with liberal political sympathies.  I don’t imagine that he ever sought “living constitutionalists” or that he ever thought they could be expected to make any meaningful contribution to his work.

3.  The article contends that justices have little information about “applicants’ ideological leanings” and credits speculation by political scientists that the “identity of the [lower-court] judge with whom a clerk works has become more valuable as a source of information about the clerk’s proclivities.”  This speculation strikes me as improbable.  There are strong ideological markers on the resumes of many applicants, and (for the reasons that Kerr explains) it would be folly to assume that a clerk for a Republican-appointed judge is ideologically conservative.  I think that it’s far more likely that justices rely on judges whose previous assessments of clerks—including of their abilities—have proven to be trustworthy.

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