A new study has found that former clerks have started to take jobs that reflect the ideologies of the justices for whom they worked.
“It’s cause for concern mainly because it’s a further piece of evidence of the polarization of the court,” said William E. Nelson, a law professor at New York University and one of the authors of the study.
Now, anyone who follows SCOTUS clerk hiring today might yawn at this. Is it really surprising that, as reported in the study, the Bush Administration hired more clerks from the conservative justices, the Clinton Administration hired more clerks from the liberal justices, and certain firms skew conservative (Kirkland & Ellis) or liberal (WilmerHale) in their hiring of former Supreme Court clerks?
But here’s the interesting part:
Until about 1990, the study shows, there was no particular correlation between a justice’s ideological leanings and what his or her clerks did with their lives…. Before the 1990s, the study found, all sorts of former clerks served in the government under all sorts of administrations….
In addition, there have been changes with respect to clerks entering academia:
From about 1940 to 1990, the study found, about a third of all clerks became law professors. There was variation among the chambers, but it was not correlated to the justices’ ideological leanings…. [But now] clerks from conservative chambers are less likely to teach. If they do, they are more likely to join the faculties of conservative and religious law schools.
We’ve heard anecdotally about anti-conservative bias in law faculty hiring (similar to what you sometimes see in law firm hiring). Does this study support the sense of some conservatives that the legal academy is hostile to their ideas?
More discussion of the article, plus the latest in Supreme Court clerk hiring news, after the jump.
“I’m also surprised that the change is so dramatic. But wasn’t this kind of the purpose of founding the Federalist Society?”
“Justice Scalia always talks about after he was nominated, the Senate voted for him 98-0, so yeah, things have changed recently.”
“That article seems more a commentary on the more politicized hiring of administrations, law schools, and law firms than more politicized hiring of justices.”
The hiring decisions of the justices — that’s the next subject of this post. Quite a lot has happened since our last Supreme Court clerk hiring round-up.
We have independently confirmed these hires by Chief Justice John Roberts (first reported on Law Clerk Addict):
1. Paul Crane (UVA 2007 / Wilkinson)
2. Kathryn Tarbert (Vanderbilt 2005 / Ginsburg (D.C. Cir.))
3. Kate Heinzelman (Yale 2009 / Garland)
And we know the fourth hire too: Zac Hudson (Yale 2009 / Kavanaugh).
Kate (Komp) Tarbert’s hiring is confirmed on the website of Vanderbilt Law. We’re guessing that Kate Tarbert is related — perhaps married? — to Heath Tarbert, who also clerked for Judge Douglas Ginsburg in 2005-2006 (en route to a clerkship with Justice Clarence Thomas).
Justice Kennedy is also done hiring for OT 2010. Here’s what we’ve learned and/or confirmed:
1. For October Term 2010, he has hired Rob Johnson (Harvard 2009 / Kozinski) and James Stern (UVA 2009 / (Wilkinson).
2. For October Term 2011, he has hired Ishan Bhabha (Harvard / Garland).
In addition, according to Law Clerk Addict, Justice Clarence Thomas has hired Will Peterson (Texas 2008/Jones (5th Cir.)). We haven’t confirmed this specific hire, but we are inclined to credit it, since we’ve heard that CT is done for OT 2010.
Here’s the table of October Term 2010 clerks so far. Some of these hires are recent, and some are less recent. As we’ve explained before, we generally don’t report SCOTUS clerk hiring in real time, one clerk at a time; we usually wait until we have multiple names to announce.
If you notice an error or omission, or if you can fill in some information that we are missing, please email us (subject line: “SCOTUS clerk hiring”). Thanks!
OCTOBER TERM 2010 SUPREME COURT CLERK HIRES (as of December 23, 2009)
Chief Justice John G. Roberts
1. Paul Crane (UVA 2007 / Wilkinson)
2. Kate Heinzelman (Yale 2009 / Garland)
3. Zac Hudson (Yale 2009 / Kavanaugh)
4. Kathryn Tarbert (Vanderbilt 2005 / Ginsburg (D.C. Cir.))
Justice John Paul Stevens
1. Sam Erman (Michigan 2007 / Garland)
Justice Antonin Scalia
1. Robert Allen (Harvard 2009 / Boudin)
2. Matt Owen (Michigan 2008 / Gorsuch (about to start Bristow Fellowship))
3. Adam Unikowsky (Harvard 2007 / D. Ginsburg)
4. Jason Wilcox (Chicago 2009 / Sutton)
Justice Anthony M. Kennedy
1. Steven Horowitz (Harvard 2009 / Posner)
2. Rob Johnson (Harvard 2009 / Kozinski)
3. Richard Re (Yale 2008 / Kavanaugh)
4. James Stern (UVA 2009 / Wilkinson)
For October Term 2011:
1. Ishan Bhabha (Harvard 2009 / Garland)
Justice Clarence Thomas
1. Will Peterson (Texas 2008 / Jones (5th Cir.))
Justice Ruth Bader Ginsburg
1. Amy Bergquist (U. Minnesota 2007 / W. Fletcher / J. Tunheim (D. Minn.))
2. Keith Bradley (Columbia 2007 / Janice Rogers Brown)
3. David Newman (Yale 2006 / Katzmann / Rakoff (S.D.N.Y.))
4. Elisabeth Theodore (Harvard 2009 / Garland)
Justice Stephen G. Breyer
1. Erika Myers (Stanford 2008 / Kozinski)
2. Brian Netter (Yale 2006 / Rogers (D.C. Cir.))
3. Natalie Ram (Yale 2008 / Calabresi)
4. David Zionts (Harvard 2008 / Garland)
Justice Samuel Alito
Justice Sonia Sotomayor
Justice Sandra Day O’Connor (retired):
Justice David H. Souter (retired):
If you’re aware of SCOTUS clerk hiring news not previously reported in these pages, or if you notice an error, please email us (subject line: “SCOTUS clerk hiring”). Thanks.
In Supreme Court Clerks’ Careers, Signs of Polarization [New York Times]
SCOTUS OT 2010 [Law Clerk Addict]
SCOTUS Clerk Hiring [Clerkship Notification Blog]
List of law clerks of the Supreme Court of the United States [Wikipedia]
Earlier: Prior ATL coverage of Supreme Court clerks (scroll down)