Signs of Polarization

December 22, 2009 - Sidebar

In Supreme Court Clerks’ Careers, Signs of Polarization

By ADAM LIPTAK

WASHINGTON

A Supreme Court clerkship really brightens the legal résumé, and former clerks have their pick of the best jobs at law firms, in the academy and in government.

The career choices they make also say something important about the state of the Supreme Court. 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.

I am no longer so sure that the claims and beliefs that our times are more polarized than others is true or accurate.

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.

Clerks from conservative chambers are now less likely to teach. If they do, they are more likely to join the faculties of conservative and religious law schools. Republican administrations are now much more likely to hire clerks from conservative chambers, and Democratic administrations from liberal ones. Even law firm hiring splits along ideological lines.

Does that say anything about academia being a liberal bastion?

Earlier studies have shown the rise of ideological hiring of clerks by the justices. In recent years, the more conservative justices have overwhelmingly hired clerks who had worked for appeals court judges appointed by Republicans. The more liberal justices did the opposite, but a little less consistently.

The new study, published last month in The Vanderbilt Law Review and summarized in the autumn issue of The Green Bag, collected data from 1882 through 2006, which means it did not consider information about clerks for the most recent additions to the court, Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr. and Sonia Sotomayor.

Before the 1990s, the study found, all sorts of former clerks served in the government under all sorts of administrations. That seemed to change in the Clinton years. The Clinton administration hired 96 former clerks, but only 16 percent of them came from the chambers of the four most conservative justices — Chief Justice William H. Rehnquist and Justices Antonin Scalia, Clarence Thomas and Anthony M. Kennedy.

Of the 89 former clerks hired by the administration of George W. Bush, on the other hand, 68 percent came from those four chambers.

“The only other justice who provided five or more clerks for President Bush was the fifth justice who cast a vote in his favor in Bush v. Gore,” the study said, referring to former Justice Sandra Day O’Connor, whose chambers provided eight additional clerks.

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.

The rise of the organized conservative legal movement, including notably the Federalist Society, seems to have changed that, perhaps as a result of the sense among conservatives that law school faculties are overwhelmingly liberal.

“Certain kids coming out of the conservative movement were not feeling comfortable with traditional law schools,” said Harvey Rishikof, another author of the study and a law professor at the National War College. (I. Scott Messinger and Michael Jo also worked on the study.)

Or perhaps colleges, law schools, were not seen as the appropriate forum to fight the conservative battle.

Only 19 percent of clerks from the four most conservative justices in recent decades joined the legal academy and only 7 percent went to one of the top 10 law schools in the annual survey published by U.S. News & World Report. A significant minority joined the faculties of religious or conservative law schools.

Clerks for the other five justices followed the historical pattern, with 34 percent joining the legal academy, about half of them at the elite schools. The study also showed polarized hiring at the law firms with significant Supreme Court practices.

Kirkland & Ellis, for instance, hired 22 former clerks from 1990 to 2006, all from the four most conservative chambers, according to the study. (A Kirkland spokesman added that the firm also hired two former clerks to Justice Byron R. White.) The firm is home to Kenneth W. Starr, the former Whitewater prosecutor who was solicitor general in the administration of the first President George Bush.

And President Clinton shadow. No surprise here.

Wilmer Cutler Pickering Hale & Dorr, on the other hand, hired 35 clerks from the five more liberal justices and only 5 from the other four. Seth P. Waxman, a solicitor general in the Clinton administration, leads the firm’s Supreme Court practice.

The emergence of “politically oriented practice groups,” the study said, reinforces the idea that the court is “a superlegislature responding to ideological arguments rather than a legal institution responding to concerns grounded in the rule of law.”

Is that more partisan, or more realistic?

In his 2006 book on Supreme Court clerks, “Courtiers of the Marble Palace: The Rise and Influence of the Supreme Court Law Clerk,” Todd C. Peppers wrote that “no other internship program in the history of the United States has produced as impressive and diverse a collection of individuals as the U.S. Supreme Court law clerk corps.”

Professor Peppers, who teaches public affairs at Roanoke College, said he was fascinated by the new study’s findings. But he added that the recent trends were in a way unsurprising. “Do justices select like-minded clerks?” he asked. “Of course.”

Exactly.

“And do these clerks go into private practice, government work and the legal academy and use their legal skills to promote ideological views that are compatible with their justices? Of course.”

That may be obvious, but it is not easy to reconcile with the view that that law and politics are, or at least ought to be, different realms.

Dream