Legal Commentary

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.