The partisan polarization of the Supreme Court: the role of feeder judges and clerks

by on September 7, 2010  •  In Supreme Court

Adam Liptak has an excellent analysis in this morning's NY Times of how the dramatic upsurge in the partisan polarization of the Supreme Court can be seen in who is selected for clerkships and how they are selected. The process is one factor in the hyper conservative jurisprudence of this Court.

My one quibble with the article that it conflates political with partisan: it repeatedly refers to an increased politicization of the Court, which I think is misleading. The Court has been sharply divided by ideology at various points in its history. What is new is that the Democrats and Republicans are both far more ideologically coherent than they have been in modern times, and judicial appointments are far more politicized. The net result of this double phenomenon is that the views of appellate judges (who feed the Supreme Court with clerks) predictably track the views of the party affiliated with the President who appointed them, at least on certain issues.

And Supreme Court Justices increasingly tend to select clerks from like-minded appellate judges. In the chart below, e.g., note that Justice Rehnquist hired almost as many clerks from D-appointed court of appeals judges in the 1975-1980 period as Justices Roberts, Thomas, Scalia and Alito together have hired in the last five years. According to the Times, even Big Law is increasingly partisan, as more and more firms are identified more strongly with one party or the other, in part by which clerks they hire. 


Excerpts from full article are after the jump.

…These days the more conservative justices are much more likely than were their predecessors to hire clerks who worked for judges appointed by Republicans. And the more liberal justices are more likely than in the past to hire from judges appointed by Democrats.

Each justice typically hires four clerks a year. Since Chief Justice John G. Roberts Jr. joined the court in 2005, Justice Antonin Scalia has not hired any clerks who had worked for a judge appointed by a Democratic president, and Justice Samuel A. Alito Jr. has hired only two. At the other end of the ideological spectrum, only four of Justice Ruth Bader Ginsburg’s clerks on the Roberts court came from judges appointed by Republicans. The early data on President Obama’s two appointees, Justices Sonia Sotomayor and Elena Kagan, show a similar pattern.

By contrast, Chief Justice Warren E. Burger, a conservative appointed by President Richard M. Nixon who led the court from 1969 to 1986, hired roughly even numbers of clerks who had worked for judges appointed by Democrats and Republicans. Judge Richard A. Posner, a generally conservative judge appointed to the bench by President Ronald Reagan, clerked for Justice William J. Brennan Jr., a liberal.

The recent divide in the selection of clerks amplifies the ideological rifts on a polarized court, one political scientists say is the most conservative in recent memory. And it echoes as clerks go on to prominent careers in government, the legal academy and major law firms.

David J. Garrow, a University of Cambridge historian, said the court had in this way started to mimic the political branches of government. “We are getting a composition of the clerk work force that is getting to be like the House of Representatives,” Professor Garrow said. “Each side is putting forward only ideological purists.”

Supreme Court law clerks share the justices’ chambers, do much of their work and influence their thinking. They make recommendations about which cases the court should hear, help prepare the justices for oral arguments, discuss the cases with them and draft major portions of the opinions and dissents…

Indeed, the polarization among law clerks has had consequences for the development of the law, a 2008 study published in the DePaul Law Review found. The presence of clerks who identified themselves as Democrats made liberal votes from the justices for whom they worked more likely, the study found. The opposite was true, too.

A handful of federal appeals court judges known as feeder judges are gatekeepers. J. Michael Luttig, for instance, produced more than 40 Supreme Court clerks in his 15 years on the federal bench, with 33 of them going to work for Justices Thomas or Scalia. Mr. Luttig, now general counsel of the Boeing Company, said the justices’ overall hiring practices reflected a fundamental shift.

“As law has moved closer to mere politics, political affiliations have naturally and predictably become proxies for the different political agendas that have been pressed in and through the courts,” Mr. Luttig said. “Given this politicization, it should come as no surprise to learn that the more liberal judges tend both to hire clerks who would self-describe themselves as Democrats and to hire clerks from other judges who would likewise self-describe themselves as Democrats, and vice versa for the more conservative judges.”…

The politics do not stop when clerks leave the court. Though a clerkship is a ticket to a law firm job that can include a $250,000 signing bonus, many former clerks take positions consistent with their former bosses’ ideological leanings in the legal academy, the government and elsewhere. Laura Ingraham, the conservative political commentator, served as a law clerk to Justice Thomas, for instance. So did John C. Yoo, the Bush administration official who provided legal advice about interrogation practices.

The clerks who do join law firms often form ideological clusters. According to a study published last year in the Vanderbilt Law Review, several of the leading firms — Kirkland & Ellis, Sidley Austin and Jones Day — have largely hired clerks from the more conservative justices. Others — including Wilmer Cutler Pickering Hale & Dorr and Jenner & Block — have tended to hire from the more liberal justices.

The rise of “politically oriented practice groups,” the study said, reinforces the impression that the court is “a superlegislature responding to ideological arguments rather than a legal institution responding to concerns grounded in the rule of law.”

For his part, Justice Thomas has said that choosing clerks is like “selecting mates in a foxhole. I won’t hire clerks who have profound disagreements with me,” he said at a luncheon in Dallas a decade ago. “It’s like trying to train a pig. It wastes your time, and it aggravates the pig.”…

With the departure of Justice Stevens, it appears that none of the justices routinely write first drafts of their opinions. Instead, they typically supervise and revise drafts produced by their clerks….“We have created an institutional situation where 26-year-olds are being given humongous legal authority in the actual wording of decisions, the actual compositional choices,” Professor Garrow said.

The justices forbid their current clerks to talk to the press, and most former clerks refuse to discuss the work they performed for living justices in any detail. But Artemus Ward and David L. Weiden received responses from 122 former clerks to a question concerning the drafting of opinions for their 2006 book “Sorcerers’ Apprentices.” Thirty percent of the clerks said their drafts had been issued without modification at least some of the time…

There are about 160 active federal appeals court judges and more than 100 more semiretired ones, yet more than half of the clerks who have served on the Roberts court came from the chambers of just 10 judges. Three judges accounted for a fifth of all Supreme Court clerks.

There is ideological polarization among the feeder judges just as there is in the larger population. Judge Garland of the District of Columbia Circuit, appointed by President Bill Clinton, has sent 21 clerks to nine justices in the Roberts court years, but 17 of them went to members of its liberal wing.

On the other hand, Judge Alex Kozinski of the Ninth Circuit, in San Francisco, appointed by President Ronald Reagan, sent 13 clerks to the court in those years, but only one to the court’s liberal wing. In a 1998 interview published in The Green Bag, a law journal, Judge Kozinski, a generally conservative judge on a court with a reputation for liberal decisions, said he took account of ideology in hiring clerks, giving “an extra measure of consideration to conservative and libertarian law students” in considering whom to hire….

Some 1,000 people apply for Supreme Court clerkships each year, and the usual practice is to apply to all of the justices. Put another way, justices cannot tell anything about applicants’ ideological leanings from the fact that they applied.

Lacking other information on that score, the justices seem to look to the ideology of the feeder judge, Professors Baum and Corey Ditslear wrote in a study published this year in The Justice System Journal. “The identity of the judge with whom a clerk works has become more valuable as a source of information about the clerk’s proclivities,” they wrote.

The stark political divide among the clerks is recent. “The Supreme Court clerkship appeared to be a nonpartisan institution from the 1940s into the 1980s,” according to detailed data in the Vanderbilt study.

Over the Roberts court years, by contrast, none of the five more conservative justices — Chief Justice Roberts and Justices Thomas, Scalia, Alito and Kennedy — hired more than 20 percent of their clerks from judges appointed by Democrats. Three of the more liberal justices — Justices Stevens, Ginsburg and Sotomayor — hired 12 percent to 35 percent of their clerks from judges appointed by Republicans. Only Justice Breyer hired roughly half of his clerks from judges appointed by presidents of each party.

The Justice System Journal study, which considered the 10 years ending in 2005, found “a growing polarization in the system.” In particular, those data “suggest a high level of bipartisanship for Breyer and a lack of bipartisanship for the relatively moderate Kennedy.”

The ideological divisions continue after clerks leave the court, another recent development. Clerks from conservative chambers are now less likely to teach, according to the Vanderbilt study, which looked at data through 2006. If they do, they are more likely to join the faculties of conservative and religious law schools. Republican administrations are now much more likely to hire clerks from conservative chambers, and Democratic administrations from liberal ones. Even law firm hiring splits along ideological lines.

Political polarization among Supreme Court clerks may be curious, but is it consequential? According to the DePaul study, by Professor Peppers and Christopher Zorn, the political leanings of law clerks influence the votes of Supreme Court justices. The study used information about political party affiliations collected from more than 500 former clerks and standard measures of judicial ideology.

“Over and above the influence of the justices’ own policy preferences,” the study concluded, “their clerks’ policy preferences have an independent effect on their votes.” Everything else being equal — the justice, the year, the case — the presence of additional liberal clerks in a given justice’s chambers makes a liberal vote more likely, the study said, while the presence of additional conservative clerks pushes justices in the opposite direction…


Leave a Reply

Your email address will not be published. Required fields are marked *