Courts

Creepy Thinktank Offers Creepy Clerkship Training Course If You Pledge Undying Loyalty

Heritage Foundation wants a covert army of loyalists.

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For years, the path of least resistance to legal success involved a white-knuckle embrace of extreme conservatism. Compared to the general population, the federal judiciary is disproportionately populated with right-wing activists and tilting more that direction every day. While there are reasons to believe the opportunity window for this strategy may be closing, it’s alive and well today.

And the Heritage Foundation has a double-secret plan to train people with federal clerkships in embedding their agenda deep within America’s legal fabric. The program accepts those who’ve accepted a 2019 clerkship and promises to teach them how to “excel” at clerking. That doesn’t sound so bad. Oh, but there’s more from Mark Joseph Stern’s latest at Slate:

All you need to do is sign a strict nondisclosure agreement swearing that you won’t reveal who teaches the academy or what they say, and vow that you will not use any information you receive “for any purpose contrary to the mission or interest of The Heritage Foundation.”

Strict secrecy, a loyalty oath, and unnamed shadowy donors, eh? That’s usually not required for a primer on taking proper notes. It is, however, required to join these people in waking Roger Taney from his slumber in the nightmare city of R’lyeh. With everyone poking around this program, the Heritage Foundation has deleted references to these nutso requirements from their application materials.

Whether or not applicants will be provided with separate agreements to sign when they show up remains to be seen.

From the Slate article:

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Jon Bourgault, an attorney who clerked on the Rhode Island Supreme Court and the 3rd U.S. Circuit Court of Appeals, agreed that this boot camp further threatens the already-battered institutional legitimacy of the courts. “I find the idea of this program so distasteful,” he told me. Bourgault pointed out that the academy application boasts that participants will learn about “originalism, textualism, habeas corpus, the Bill of Rights, and other substantive legal and practical subject matter” (an incredibly broad category). “The list of topics suggests that they want to teach clerks certain approaches to legal analysis,” he said, “which further suggests they’re trying to influence the outcome of cases.”

It does a lot more than “suggest” that.

Look, even though these clerks are going to be government employees and ostensibly apolitical, no one really believes that when it comes to some of the judges out there. There are conservative jurists who make no bones about staffing up with right-wing clerks to help them ring in the new Lochner era. If the Heritage Foundation wants to tell those clerks what it’s really like to work for James Ho, then so be it. A bunch of former right-wing clerks talking about the right’s house style wouldn’t be so bad. Heritage, Fed Soc, and a tight community of fellow travelers in robes have created a hegemonic legal philosophy and while that may be unfortunate for the Republic, this would be a totally reasonable training program for those clerks.

The problem is this isn’t a program to train right-wing clerks working for James Ho. At least not exclusively. Some of these clerks are going to work for reasonably apolitical judges and Heritage wants to keep the particulars of this program under the radar because they aren’t satisfied with overrepresentation on the bench, they want a covert army of clerks writing memos to push up-the-gut judges toward conservative conclusions by cabining their options.

That’s where the real ethical quandary arises. Under the cover of secrecy, the Heritage Foundation is training clerks to further its “mission” regardless of whether or not that serves the duly installed Article III judge the clerk is supposedly working for.

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This program is bad. It should be ripped into the daylight and everyone involved should be exposed for this assault on judicial integrity. Instead, they’ll keep on doing this and hope America gets distracted again. And they’re probably right.

UPDATE: But for now, Heritage claims they have suspended the program.

The Heritage Foundation’s New, Secretive Clerkship Boot Camp Is Going to Further Trumpify the Courts [Slate]

Earlier: Circuit Court Nominee Worked For Hate Group — Good Thing We’re Not Going To Have A Real Hearing On This One!
Judicial Nominees And Their College Writings: Enough Is Enough

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