My colleague, Bill Nelson, has written a fascinating and perhaps troubling history of Supreme Court clerkships since the appointment of Justice Brandeis in 1916. Nelson’s troubling finding is that, since 1990, conservative justices increasingly hired clerks from the pool of clerks of conservative circuit judges. According to Nelson, “90.1% of Justice Kennedy’s clerks, 79.4% of Chief Justice Rehnquist’s, 92.7% of Justice Scalia’s, and 100% of Justices Thomas’s clerks who served prior clerkships with circuit or district court judges did so with judges appointed by Republican presidents.” By contrast, more than half of Burger’s, Stewart’s, and Powell’s clerks were clerks of judges appointed by Kennedy or Johnson. Nelson also finds that clerks from the chambers of four conservative justices (Scalia, Thomas, Rehnquist, and Kennedy) sort themselves ideologically in their career trajectory: Since 1990, they increasingly go to conservative law schools or to law firms with prominent conservative mentors such as Kirkland & Ellis (which became a landing place for conservative justices’ clerks after Kenneth Starr joined the firm in 1993). In short, Nelson is finding evidence of an increase in ideological sorting among legal elites since the 1990s, with conservatives joining think tanks, law schools, and law firms that specialize in favoring conservative causes.
As conservative myself — meaning someone with a preference, ceteris paribus, for deregulation, decentralization, and tradition — I find this ideological sorting a bit disturbing. Sorting likely leads to ideological polarization for both Left and Right. There is increasing evidence that popular culture is already excessively sorted and polarized on ideological grounds: Consider, in this respect, Bill Bishop’s excellent book, The Big Sort, which documents the trend of migrants’ sorting themselves into ideologically polarized counties. Must we academics jump on the sorting bandwagon as well? Are law schools such ideologically riven places that each faction must seek refuge in institutions filled with like-minded colleagues? (I have not found a “generalist” law school uncongenial, but my experience may be atypical). Without apportioning blame for this alleged sorting trend, I think that it is undesirable and that we academics ought to think about how to arrest it.
Posted by Rick Hills on December 11, 2008 at 09:03 AM
Comments
I have been visiting several schools this year after AALS conference interviews and you can clearly see that schools’ faculty tend to be majority conservative or majority liberal. It would seem that faculty tend to hire future law professors with similar ideology (the established majority vote). As a former law clerk, who has been a part of the law clerk hiring process and has conferred with fellow law clerks, I must admit that judges deny that they take political ideology into the hiring process but THEY DO!
Posted by: newcomer | Dec 13, 2008 5:39:53 PM
The article has some real howlers. E.g., “the development of politically oriented Supreme Court practices [at particular law firms] has a tendency ultimately to transform the Court into an awesome axis of political power.” (The Supreme Court is already obviously at an axis of political power — I don’t see how the existence of a Kirkland & Ellis makes it more so. In any case, the authors, when listing Supreme Court arguments for various firms miss the fact that most of those cases are pretty unideological. Each of those firms likes business cases most of all — the clients who pay. And each of those firms takes substantial numbers of pro bono prisoner/defendant cases, because that’s a way to get arguments.
I also think it’s hysterical the way the authors simply assert that conservative clerks for Scalia, Thomas, and Kennedy — because they believe in originalism — will be uninterested in teaching interdiscipliary legal subjects, such as (the authors’ example) history. The authors ignore that historical research is considered very relevant to originalists. And the authors seem never to have heard of that other interdisciplinary legal phenomenon of the last 30 years — law and economics.
Posted by: dcuser | Dec 12, 2008 7:06:00 PM
I have not read Bill Nelson’s paper but, based strictly on Rick’s account, and on the comments above, it strikes me as unlikely that “conservative” Justices are more sort-prone than “liberal” ones. (Anecdotes are not data, of course, but my sense is that there are more left-leaning people who clerked for Scalia, Rehnquist, O’Connor, and Kennedy than right-leaning people who clerked for, say, Ginsburg or Stevens.)
More generally, I have mixed feelings about the desirability of “sorting”. We’ve kicked this topic around before, I know, but it seems to me that some “sorting” — via voluntary associations, non-state institutions, perhaps even neighborhoods and communities — along some dimensions, contributes to the kind of diversity that we do (or, at least, I think we should) value. Do you disagree, Rick? I *suspect* that you don’t, so I guess we’d then agree that the challenge is identifying the settings, and the dimensions, where “sorting” bothers us, and distinguishing them from those that do not.
Posted by: Rick Garnett | Dec 12, 2008 1:30:48 PM
Paul K,
Doesn’t that depend on whether clerks are only willing to work for judges who share their ideology? Why would you think that is true?
Posted by: Orin Kerr | Dec 12, 2008 3:32:59 AM
It’s funny that we rarely reflect in these situations on just how “liberal” a law clerk could be who was willing to clerk for a “conservative” judge, or vice versa. Can we not just accept that the pool of Supreme Court-eligible clerks is already a pretty small slice of the ideological spectrum generally?
Posted by: Paul K. | Dec 11, 2008 10:32:22 PM
Wouldn’t the main reason for all this be that conservative students aren’t altogether welcome at law schools? Isn’t the imbalance of liberal vs. conservative law profs among the very highest in academia? The same is true of students. It is natural and correct that conservative students gravitate towards institutions in which they may speak and think freely–and, what’s more, be commended for it. It’s certainly not that conservative student choose to dissociate; it’s that they’re excluded. Count the anti-Bush cartoons on professors’ doors. Tally the anti-conservative sneers by students in the hallways. Conservative students see where the brighter career prospects lie.
Posted by: Conservative Fordham student | Dec 11, 2008 10:23:44 PM
Ginsburg, Souter, and Stevens tend to hire mostly from Democratically-appointed judges, but not to the degree that their conservative counterparts do (2/3 v. 9/10). Not that I’m saying this means anything.
Right . . . this isn’t meaningful unless you know whether the individual clerks are liberal or not. Lots of Republican-appointed judges (such as Wilkinson or Williams or Boudin) end up hiring moderate-to-liberal clerks who then clerk for liberal Supreme Court Justices.
Posted by: Stuart Buck | Dec 11, 2008 4:00:46 PM
Dobe– that’s a fair criticism of the post. Adam Liptak’s column in the NYT (referenced in Chris’s post) answers that question:
http://www.nytimes.com/2008/12/09/washington/09bar.html?_r=2&scp=2&sq=liptak&st=cse
Ginsburg, Souter, and Stevens tend to hire mostly from Democratically-appointed judges, but not to the degree that their conservative counterparts do (2/3 v. 9/10). Not that I’m saying this means anything.
Posted by: Hauk | Dec 11, 2008 3:53:32 PM
Just a note on a minor methodological point: I thought the Peppers and Zorn effort to interview clerks about their ideology was a lot more effective way to determine their ideology than the Nelson et.al. approach of relying on the party affiliation of the clerk’s circuit court clerkship. Judges pick clerks, not the other way around: The fact that someone clerked for a circuit court nominated by a Republican doesn’t provide a particularly good indicator of their politics. This is especially true because the law student application pool is traditionally pretty heavily liberal: There aren’t enough liberal judges to meet student demand, and a lot of liberal clerks end up with conservative judges. Thus, I wasn’t surprised by the Peppers and Zorn finding that SCT law clerks traditionally had been something like 3-1 liberal-to-conservtaive over time.
One more thought: The fact that there are “conservative” and “liberal” appellate practices in DC is mostly a product of the ambition of the lawyers in appellate shops. If you want a political job in an administration, it greatly helps to have connections with the bigwigs who will be staffing political jobs in an administration. My sense is that former clerks are drawn to practices that match their overall views mostly because they think it will help them get a cool government job down the road.
Posted by: Orin Kerr | Dec 11, 2008 3:24:48 PM
Rick: what an odd comparison — all conservative justices here are modern, while all liberal justices are from the prior era. If there is an overall polarization trend in clerkship hiring, all modern justices, liberal and conservative alike, will have more ideologically concentrated clerks than all justices from the Burger generation. Why not compare apples to apples — liberal v. conservative contemporaries? How many clerks in Stevens’, Souter’s, or Ginsburg’s chambers come from conservative circuit court judges?
Posted by: dobe gulia | Dec 11, 2008 3:17:49 PM
Apropos your post, I thought I’d point to Adam Liptak’s NYT piece earlier this week, which reviews a study Todd Peppers and I just published that is (in part) on this subject, as well as the earlier study by Corey Ditslear and Lawrence Baum that Nelson references. A post on the piece is here:
Posted by: Christopher Zorn | Dec 11, 2008 10:59:51 AM
To what extent is the sorting driven by ideology or by prestige chasing (which, one might argue, is the dominant organizing principle of law schools)?
Posted by: lawyer | Dec 11, 2008 10:28:01 AM