Bench Memos

The Justices’ ‘Revealing’ Clerk-Hiring Practices

In this piece, Professor 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 “of the 20 law clerks appointed this Term by the five conservative Justices . . . 18 of the 20 — 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 . . .  9 of the 16 — or 56 percent — 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 résumé, 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 suggest 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 credentialing and patronage, that raise interesting but (I think) different questions.  

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