Adam Liptak, New York Times, Politics, SCOTUS, Supreme Court, Supreme Court Clerks

Supreme Court Clerk Hiring: Is It Becoming More Political?

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Today’s New York Times has a meaty and interesting front-page article about political ideology and Supreme Court clerk hiring. The piece, written by SCOTUS correspondent Adam Liptak, reminded us a lot of one that Liptak wrote last year (which we discussed here). But since there’s no such thing as too much talk about The Elect, let’s dig into it.

(By the way, speaking of Supreme Court clerk hiring, we’re working on an update that should come out soon. If you’re aware of a clerk hire that wasn’t included in our last write-up, listing both OT 2010 and OT 2011 clerks, please email us (subject line: “SCOTUS clerk hiring”). Thanks.)

Liptak begins by discussing the fabulosity that is a SCOTUS clerkship:

Each year, 36 young lawyers obtain the most coveted credential in American law: a Supreme Court clerkship. Clerking for a justice is a glittering capstone on a résumé that almost always includes outstanding grades at a top law school, service on a law review and a prestigious clerkship with a federal appeals court judge.

One could quibble with the number of 36, but we’ll get to that later. Let’s focus on the main point of the piece, the growing politicization of high-court clerk hiring….

Liptak hits the main point in the second paragraph, when he points out this interesting tidbit about Justice Clarence Thomas: “Without exception, the 84 clerks he has chosen over his two decades on the court all first trained with an appeals court judge appointed by a Republican president.”

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Interesting, although not a huge surprise to those who follow SCOTUS clerk hiring closely. When it comes to being right-of-center, CT’s clerks are “true believers,” even more so than the clerks to Justice Antonin Scalia. Thomas clerks may come from a wider range of law schools than clerks to the famously elitist Scalia (which is why Thomas had to defend his young proteges against charges of TTT-hood); but when it comes to ideology, CT’s clerks are as solid as they come. As Liptak notes later on in the article, their ranks include Laura Ingraham, the feisty blonde commentator, and John Yoo, a favorite figure here at ATL.

The NYT piece gets more interesting when it conducts comparisons between the current Court and the Court of years past:

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.

If you’ll indulge a little inside baseball on SCOTUS clerk hiring — which is why you come to ATL, right? — the methodology is open to question. Here’s one for starters: Is the political party of the appointing president a reliable proxy for either a judge’s ideology or the ideology of that judge’s clerk?

Maybe not. As one knowledgeable ATL reader points out:

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You should do some additional due diligence into this NYT’s article about the ideology of Supreme Court clerks. The article — and the accompanying chart — suggests that conservative judges are more ideologically driven than their liberal counterparts. The NYT looks at the appellate judges for whom the Elect clerked, and sees whether a GOP or Dem President appointed that judge. For example, NYT points out 7 of the 20 clerks (from 05-10) for Justice Stevens clerked for appellate judges appointed by a Republican President, while only 4 out of 20 clerks for Justice Kennedy clerked for Democratic-appointed appellate judges.

My guess is that some of the Kennedy clerks were liberal, while almost all of the Stevens clerks were liberal. For example, a quick look at Wikipedia shows the fallacy of NYT’s sloppy analysis. Kate Shaw clerked for Judge Posner and then Justice Stevens. She’s considered a “conservative” clerk under NYT’s analysis. But guess where Kate Shaw is working these days? The Obama White House. All this proves is that Judge Posner hires liberal clerks, not that Justice Stevens hires conservative clerks.

That is certainly true: Judge Posner seeks brilliant clerks without regard to ideology. Kate Shaw is not the only example of a left-leaning Posner clerk who went on to clerk for the high court. Perhaps the most famous one would be celebrity law professor Larry Lessig.

And there are other examples, involving feeder judges other than Richard Posner. For example, take Sarah Eddy McCallum, who clerked for Judge Rakoff (S.D.N.Y.) and Judge John Walker (2d Cir.), before joining the chambers of Justice John Paul Stevens. McCallum is fabulous and fascinating — she’s a former international actress, competitive downhill ski racer, and Wachtell Lipton associate — but those who know her wouldn’t call her a right-winger. And yet because she clerked for the Bush-appointed Judge Walker before she clerked for Justice Stevens, Sarah McCallum is treated as a “conservative” clerk to a “liberal” justice.

To be sure, these are isolated examples. But here’s another point that actually affects the analysis more broadly: Judge Michael Boudin (1st Cir.), who is a top-shelf feeder judge — we respectfully disagree with Laurie Lin on this — is not exactly J. Michael Luttig when it comes to either his own right-wing ideological purity or the purity he demands of his clerks. And yet, because Judge Boudin is a Bush 41 appointee to the First Circuit, all of the clerks he feeds to the Court automatically get categorized as “conservative” clerks to “liberal” justices, even though many of them — e.g., my college roommate Derek Ho, who clerked for Judge Boudin and then Justice Souter — are far from conservative.

Of course, one response to such quibbling is that no study is perfect. As a law professor who studies the federal courts pointed out to me, “the analysis relies on a proxy for ideology, and that makes it imperfect. But scholars rely on proxies for ideology like this all the time, and, on average, and with statistical controls for random variation, they are thought to capture a good bit of reality.”

But this defense of the methodology can also be attacked. From a former Justice Department official who worked on judicial nominations:

The problem with using party as a proxy in such a small sample — appellate court judges that are the source of SCOTUS clerks, and more particularly, the subset of GOP-appointed judges in that category — is that it is thrown off by the relatively small number of outliers who break overwhelmingly in favor of [the other side ideologically]…. [T]here are substantially more liberal or at least non-ideological Republican appointees than there are conservative or non-ideological Democrat appointees (a trend obviously apparent from the history of SCOTUS personnel alone).

Indeed. Take a look at the top three feeder judges, who are given shout-outs in the New York Times graphic: Judges Merrick B. Garland (D.C. Cir.), J. Harvie Wilkinson (4th Cir.), and Alex Kozinski (9th Cir.). Judge Wilkinson — described by Emily Bazelon and David Newman of Slate as “a middle-of-the-road southerner like Lewis Powell, the Supreme Court justice for whom he clerked” — occasionally votes with the liberals; he tangled with the more hard-line Judge Luttig in Gibbs v. Babbitt (the famous “red wolf” case). The same goes for Chief Judge Kozinski, who calls cases as he sees them, and is far less consistently conservative than, say, his fellow Ninth Circuit feeder judge, Diarmuid O’Scannlain (my former boss).

In fairness, one could argue that Judge Garland isn’t exactly a Stephen Reinhardt. Judge Garland was certainly the most conservative of President Obama’s four short-listers for Justice Stevens’s seat. But even if Judge Garland is moderate, his clerks are solidly liberal. Anyone who moves in these circles can tell you that Garlandistas, as they are known (per Tony Mauro), are more ideologically consistent as a group than either the clerks to Judge Wilkinson or the clerks to Chief Judge Kozinski. As Judge Wilkinson told the Times, “I’ve tried in my own hiring on the circuit court level not to put an ideological litmus test on anyone I’ve hired. Law is a craft and profession that in many ways transcends philosophy.”

To beat a dead horse, here is a liberal friend of mine questioning the methodology, in an email to me:

“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.”

Are these authors serious? [My girlfriend who clerked on the Court] had things like “Rebellious Lawyering” & Now Legal Defense [on her résumé and transcript when she applied to the justices], you had Fed Soc (I presume), etc…

In terms of what reveals what, the idea that one cannot discern ideology without lower-court judge is to me evidence that [this approach is] stupid.

Point made: the increased politicization of Supreme Court clerk hiring as described in the article may be somewhat exaggerated, to the extent that the identity and/or appointing president of the feeder judge is a poor proxy for the true ideology of the law clerk. (Of course, in fairness to these scholars, it is readily ascertainable — see, e.g., Wikipedia, which lists SCOTUS clerks and their feeder judges going back for decades — while other proxies are harder to obtain.)

Okay, let’s go back to the Liptak article. On the phenomenon of polarization, Liptak quotes former Judge J. Michael Luttig (who has traded the bench for bucks, leaving the Fourth Circuit to become general counsel of Boeing). Judge Luttig, a former SCOTUS clerk himself, agrees that the process has become more political:

“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. 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.”

Then Liptak discusses the consequences of this increased polarization in chambers:

[I]deological orthodoxy can dampen the robust discussions in chambers that clarify issues and shape rulings. Justice Scalia for instance used to seek out candidates from the opposite ideological camp when he served on a federal appeals court in Washington and in his early years on the Supreme Court.

“He made it a point of telling me that I was his token liberal,” said E. Joshua Rosenkranz, who clerked for Justice Scalia in 1986, his last year on the appeals court. “To his credit, I’m sure it was largely because he wanted to be sure he always heard the arguments against the positions he was taking.”

Joshua Rosenkranz, whom I had the pleasure of meeting at the movies, is currently a partner at Orrick. He is probably one of the few lawyers who can boast of clerking for both Justice Scalia and Justice Brennan — as well as Judge Stephen F. Williams of the D.C. Circuit, who was a major feeder judge back in the day.

(For names of past Scalia “counter-clerks,” see this post. They include Christine Jolls (OT 1996), Rachel Barkow (OT 1997), and Gil Seinfeld (OT 2002) — but note that Nino hasn’t had one in a while.)

Liptak then makes an excellent point that I predict will only become more true as the years pass:

Sometimes it seems that a Supreme Court clerkship has become a prerequisite to a seat on the court. The three candidates on President Obama’s short list to replace Justice Stevens — Justice Kagan, who joined the court in August, and Judges Merrick B. Garland and Diane P. Wood — had all served as Supreme Court clerks (and all to liberal justices).

Indeed. For a lamentation about how The Elect get all the spoils, see here.

Indeed, if Justice Kagan’s recent hiring is any guide, a Supreme Court clerkship may even be a prerequisite for a Supreme Court clerkship. Three of her four clerks have completed clerkships with other members of the court, Justices Ginsburg, Breyer and Anthony M. Kennedy.

If I may, I’m going to call out Liptak just a little here. He’s writing for a general audience, and the paragraph above, about Lady Kaga’s little monsters, is perfectly fine for laypersons. But as one can see from looking at the clerk hiring practices of new justices, it’s a common practice for new SCOTUS members to bring seasoned crews aboard for their maiden voyages — i.e., to hire clerks for their first Terms who have experience clerking at SCOTUS.

(And while I’m being persnickety — or precise, as The Elect might say — let me return to that number of 36 for SCOTUS clerks. It’s open to challenge: What about clerks to retired justices? These clerks are traditionally “loaned out” to active justices, so they get to work on big sexy cases; they’re not just ghostwriting Finding Susie. And clerks to retired justices generally get the same huge signing bonuses that clerks to active justices get when they leave the marble-clad precincts of One First Street for private law firms. As Liptak observes, the going rate these days for SCOTUS clerk signing bonuses is $250,000, on top of the regular salary and year-end bonus that would go to an associate of corresponding seniority.)

The Times article then discusses the role played by clerks at the Court. It discusses how, now that Justice Stevens has left the bench, there is no justice who writes his or her own first drafts — which won’t come as news to those who are familiar with the clerkship as an institution. But there is some nice reporting about remarks by Justice Ruth Bader Ginsburg:

Justice Ginsburg, a famously hard-working justice, described her own habits in an interview with Todd C. Peppers, who teaches public affairs at Roanoke College, for “Behind the Bench: Portraits of United States Supreme Court Law Clerks and Their Justices,” a book to be published next year by the University of Virginia Press. Justice Ginsburg said she was an energetic supervisor and editor who made sure the final product faithfully reflected her views. But the initial draft, she said, is prepared by a clerk.

“I write the opening,” Justice Ginsburg said. “It will be anywhere from one to three paragraphs. It’s kind of a press release, and it will tell you what the issue was and how it was resolved.”

Then she said she provided a law clerk with a detailed outline. “Sometimes, to my delight, they will give me a draft that I can make my own version through heavy editing, but I don’t have to redo it,” Justice Ginsburg went on. “I’d say it’s a good year if I have two law clerks that have that skill.”

Very, very interesting — and maybe a little depressing, too. It’s sad to think that there is hierarchy and striving even among members of The Elect. You land a clerkship with RBG, and you think you have it made. But once you arrive in her chambers, you’re competing with three other brilliant people to be the best RBG clerk, the one whose work doesn’t have to be redone by Her Honor (or at least the one who doesn’t get in trouble for discussing chambers business in public).

Does one ever get off the treadmill? Maybe not. Look at how three former SCOTUS clerks, brilliant and accomplished, all holding high office — Judge Garland, Judge Wood, and then-Solicitor General Kagan — found themselves vying for the coveted Supreme Court seat vacated by Justice Stevens.

There really isn’t such a huge difference between 1L gunners vying to be called on and 60-year-old lawyers competing for clients, cases, or judicial appointments. A career in the law is a never-ending struggle for greater and greater prestige. And once you make your peace with that, you’ll be a happier person.

P.S. Speaking of things SCOTUS-related, check out the new and improved SCOTUSblog, which just got a major design overhaul. Doesn’t it look fabulous?

P.P.S. Don’t forget to send us your SCOTUS clerk hiring news, via via email (subject line: “SCOTUS clerk hiring”). Gracias.

Polarization of Supreme Court Is Reflected in Justices’ Clerks [New York Times]
Polarization of Supreme Court Clerks: A Chart [New York Times]

Earlier: Supreme Court Clerk Hiring Watch: A discussion of politics and law clerk hiring.

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