Legal Commentary

The Polarization of Supreme Court Clerks

By Jonathan H. Adler

Adam Liptak reports on the apparent polarization of Supreme Court clerks.  According to Liptak, Supreme Court justices increasingly hire only those who clerked for judges who share their ideological disposition.  Justices appointed by Democratic presidents hire those who clerked for lower court judges appointed by Democratic presidents and justices appointed by Republican presidents hire those who clerked for lower court judge appointed by Republican presidents.

Jason Mazzone comments on Liptak?s story at Balkinzation.  According to Mazzone, Liptak?s failure to account for the changing composition of lower courts causes him to exaggerate the trend.

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.

Mazzone also questions whether the Justices? clerkship hiring patterns really matter all that much.  Mazzone finds Liptak?s suggestion that the alleged polarization in clerkship hiring increases the ideological polarization of the Court to be unpersuasive.  He ends his response with this intriguing thought:

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.

Full post as published by The Volokh Conspiracy on September 07, 2010 (boomark / email).