Legal Commentary

Is Federalist Society Membership an Obstacle to Getting Law Firm Jobs?

By Ilya Somin

The ongoing discussion over the law firm partner who decided to reject all job applicants with Federalist Society membership raises the question of how common discrimination against Federalist Society members really is in the law firm world. The only real way to get a definitive answer to this question is to look at systematic data comparing the success of job applicants who reveal their Fed Soc membership with that of applicants who have similar credentials, but are not Fed Soc members (or conceal their membership). In the absence of such data, all we have are conjectures. Here are mine:

Overall, I doubt that Fed Soc membership is a big obstacle to getting law firm jobs. This is likely to be so for three reasons. First, law firm partners are usually focused on the bottom line. If they reject good conservative or libertarian applicants in favor of inferior liberal ones, their pocketbook is likely to suffer. Anyone who has ever worked at a big law firm knows that partners hate it when that happens. Those few who are indifferent to profits are unlikely to stay in business for long. Second, surprising as it may be, many practicing lawyers simply don?t care about politics as intensely as academics and political activists do. They may have political opinions, but those opinions aren?t a major part of their lives. For such people, hiring associates who disagree with their political views isn?t a big deal because they don?t care about politics that much in the first place. Of course this isn?t true at all law firms. There are some that are intensely political, especially here in Washington. But it?s true of enough of them that the applicant with unpopular political views will still have a wide range of firms to choose from.

It?s also worth nothing that there are some firms where Federalist Society membership might actually be an advantage. After all, many partners at prominent law firms are Fed Soc members themselves. These people are unlikely to prefer weak Fed Soc applicants to clearly superior liberal ones; after all, they care about the bottom line too. But Fed Soc membership could sway them in a close case. More generally, there are lots of conservative and libertarian practicing lawyers, enough that those firms where liberals predominate are likely to be roughly offset by the ones where right of center types hold sway.

When I was in law school, I put the Federalist Society on my law firm resume, as did many of my classmates who were also members. It didn?t seem to hurt. As a second year, I got a job as a summer associate at an overwhelmingly liberal New York law firm where no one seemed to care much about my politics one way or the other. The only time ideology came up in a negative way during numerous interviews with big-name New York and DC firms was when a conservative partner grilled me about the fact that I had been an RA for liberal Yale professor Bruce Ackerman (an exchange that didn?t end up costing me the offer, though I did get rejected on the grounds that the hiring committee thought I was too likely to become an academic, as also happened at several other firms).

By contrast, both liberal and conservative law professors warned me not to put the Fed Soc on my CV for the academic job market, where ideological discrimination is likely to be greater because the academia is far more ideologically homogenous than the law firm world, (see also here), there is little or no equivalent to the constraint imposed by the profit motive, and academics tend to care about politics far more than practicing lawyers do.

These personal experiences aren?t necessarily typical. Only systematic data can really settle the issue. But they are similar to those of other Fed Soc members I know in the law firm and academic worlds (and I know a great many in both). It?s not unusual for people to put Fed Soc membership on their law firm resumes, while the conventional wisdom is strongly against doing so on academic CVs.

Even if I am correct as a general matter, there are certainly likely to be individual cases of ideological discrimination against Fed Soc members in law firm hiring. But I doubt that the private sector job prospects of law school grads who are Fed Soc members are likely to be systematically worse than the chances of those who are not.

Full post as published by The Volokh Conspiracy on December 09, 2009 (boomark / email).