an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Response to Adam Liptak on the Polarization of Supreme Court Clerks
Adam Liptak has an article in today’s New York Times on what he calls the “polarization of Supreme Court clerks.” He contends that whereas in years past the Justices hired law clerks with a mix of political perspectives, today they tend to hire clerks who share their own political ideologies. How do the Justices know which applicants are conservative and which are liberal? According to Liptak, the Justices use a proxy: the party of the President who nominated the circuit court judge for whom an applicant previously clerked. Liptak explains: “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.”
Although Liptak talks about hiring by both conservative and liberal Justices, the article’s goal is a criticism of the Roberts Court’s conservative members. The conservative Justices are presented as more likely to engage in ideological hiring (Justice Thomas is the poster child) than are the liberal Justices. And the conservative Justices’s ideologically-compatible law clerks are presented as tilting the law in an ever-more conservative direction. (Liptak has previously written pieces asserting that Chief Justice Roberts has been shifting the court rightwards.)
Liptak’s claim about increased ideological hiring is exaggerated because he misses an important background development. In addition, Liptak’s assessments of the effects of what ideological hiring has occurred are unpersuasive.
Liptak uses the graph at the top of this page to demonstrate how ideological hiring by the Justices has increased over time and to show in particular that today’s conservative Justices hire clerks who share their politics. The graph compares the circuit judges (classified in terms of the party of the President who nominated them) for whom Supreme Court clerks in the 1975-1980 and 2005-2010 terms previously clerked. Presented that way, the numbers seem to support Liptak’s strong claims.
But Liptak overlooks a key change between 1975-1980 and 2005-2010 in the composition of the circuit courts. In 1980, there were 50 circuit court judges who had been nominated by a Republican President; 86 of the circuit court judges had been nominated by a Democratic President. (There were also 4 circuit judgeship vacancies in 1980.) In other words, in 1980, 37% of the circuit court judges were nominated by a Republican President and 63% were nominated by a Democratic President.
By contrast, today there are 91 sitting circuit court judges who were nominated by a Republican President and 68 circuit judges who were nominated by a Democratic President. (There are also 20 circuit judgeship vacancies). In other words, of the current federal circuit judges, 57% were appointed by a Republican President and 43% were appointed by a Democratic President.
Some of what Liptak identifies as increased hiring of Supreme Court law clerks from Republican circuit judges simply reflects the increased number of law clerks from Republican circuit judges because there are today more Republican circuit court judges.
Recognizing the changed makeup of the circuit courts also casts doubt on Liptak’s identification of Supreme Court clerks with the politics of the circuit court judge form whom they served. With more clerkships available in 2005-2010 with circuit judges appointed by Republican Presidents, highly-qualified Democratic applicants are more likely to clerk for a judge appointed by a Republican. In 1980, a top student who preferred a Democratic-appointed circuit judge had a good chance of getting the clerkship. Today, the same student is more likely to end up with a clerkship with a Republican-nominated judge.
How much of the shift Liptak describes washes out once we account for the increased number of Republican-nominated circuit court judges today?
Instead of focusing on the hiring practices of the individual Justices, it is useful to look at all of the law clerks hired at the Supreme Court and the circuit judges for whom they previously clerked.
Liptak’s graph begins with hiring practices for the 1975-1980 terms. Adding up Liptak’s individual numbers for that period, 73 out of 178 or 41% of law clerks at the Supreme Court during those terms came from circuit court judges appointed by a Republican President. 105 Supreme Court clerks, the other 59%, came from circuit court judges appointed by a Democratic President.
Compare these figures to the numbers provided just above of circuit court judges in 1975-1980 who were nominated by Republican and Democratic Presidents. Assuming an even distribution of law clerk talent across Democratic and Republican circuit judges and an even distribution of applications to the Supreme Court from Republican chambers and Democratic chambers, the outcome Liptak reports is pretty close to the ratio of Republican circuit judges to Democratic circuit judges in 1980. If you run the numbers, circuit court judges appointed by a Republican President sent seven extra law clerks over their fair share in the 1975-1980 terms, an average of about 1 additional clerk per term.
(I recognize that a complete analysis would look at each individual term from 1975-1980 but Liptak doesn’t supply the numbers of Republican versus Democratic clerks per year.)
In other words, instead of concluding that the Justices in 1975-1980 wisely aimed for diversity among their law clerks, there is a more simple explanation: there were more law clerks from Democratic circuit court judges than there were law clerks from Republican circuit court judges and the overall hiring reflected this fact.
Let’s turn then to 2005-2010. Liptak reports that there were 217 law clerks hired for the 2005-2010 terms from federal circuit court judges. 141 of those, or 65%, were hired from judges appointed by a Republican President. 76 clerks or 35% were hired from judges appointed by a Democratic President.
Again, compare those percentages to the percentages of Republic and Democratic circuit judges. As mentioned above, of the current federal appellate judges, 57% were appointed by a Republican President and 43% were appointed by a Democratic President.
Comparing the proportions of clerks with the proportions of circuit court judges for 2005-2010, the circuit court judges nominated by Republican presidents have sent 16 more law clerks over their fair share. So (again assuming even distribution of talent and of applications), in 2005-2010 there have been on average 2.3 more Republican law clerks at the Supreme Court than we would expect in hiring that is blind to politics.
Having 2.3 extra clerks from Republican circuit judges out of a total of 37 clerks per term doesn’t strike me as much to get worked up about. This is particularly so given that in 2005-10, five out of nine Supreme Court Justices were themselves nominated by a Republican President and the Chief Justice (a Republican nominee) has one more law clerk than do the other Justices.
This brings me back to Liptak’s focus on the hiring practices of individual justices and to his analysis of what it means for a conservative justice to prefer all conservative clerks and for a liberal justice to prefer all liberal clerks. Liptak tells us first that in the past a conservative Justices would have a liberal or two on staff, who could present the other side of a case and influence the Justice. Today, with a stronger concentration of conservative law clerks in conservative chambers, the conservative Justice doesn’t get the benefit of a different view. Second, Liptak argues, because of the important roles they play in picking cases and drafting opinions, the clerks themselves are able to further tilt the Court in a conservative direction. Therefore, he says, current hiring practices “amplify[y]the ideological rifts on a polarized court.”
The first of these two claims strikes me as naïve. The second betrays a serious tension in Liptak’s argument.
Supreme Court Justices don’t need law clerks in order to hear every argument on every side of a case. The parties, the amici, the lower courts, the law review editors, and, increasingly, the legal bloggers—as well as the other Justices themselves--all ensure every argument is brought forward. While there is some evidence (which Liptak discusses) that law clerks can influence a Justice’s position in certain cases, we should not overstate the effects, particularly in cases with strong political overtones. Supreme Court Justices are very smart and very experienced. It is naïve to think that a 20-something year-old law liberal clerk will be so persuasive that Justice Scalia will abandon originalism or vote to invalidate gay marriage and it is equally naïve to imagine that Justice Ginsburg will be persuaded by a conservative clerk to find gender classification should only be subject to rational review under the Equal Protection Clause. More likely is that a year in Justice Scalia’s chambers will turn a liberal clerk conservative. (I am reminded here of various commentators who expect, also naively in my view, that novice Justice Kagan will be able to win over veteran Justice Kennedy).
The tension in Liptak’s assessment is this: If, like Liptak, we think the Justice should be in the driver’s seat, then surely it is better for a Justice to hire law clerks who will be faithful lieutenants and who will perfectly execute the Justices’s wishes. Liptak’s argument for diversity presents the risk of having a law clerk who tries to manipulate outcomes: providing selective information to the Justice, hiding key facts, burying cert. petitions, inserting language in an opinion to lay the groundwork for overruling a case with which the clerk disagrees, or colluding with clerks in other chambers who share the clerk’s own political disposition.
Diversity in chambers presents a greater risk of law clerks aggrandizing power at the Court than comes from clerks whose views are close to those of the Justice they serve. Posted
by Jason Mazzone [link]