Adam Liptak has a Sidebar column in the New York Times about a new article in the Vanderbilt Law Review on the career paths of former Supreme Court clerks. The article is The Liberal Tradition of the Supreme Court Clerkship: Its Rise, Fall, and Reincarnation, by William E. Nelson, Harvey Rishikof, I. Scott Messinger, and Michael Jo.
The article presents empirical findings of the employment pattern of former Supreme Court clerks. It concludes that “careers of former clerks show striking trends of political polarization in the recent history of the clerkship with regard to the legal academy, government service, and private practice.” The basic finding is that the law clerks of conservative-leaning Justices often then work at conservative-leaning law firms and then end up in Republican Administrations or stay in private practice, while the law clerks of liberal-leaning Justices often work at liberal-leaning law firms or go into academia with possible pit-stops for positions in Democratic Administrations. Liptak summarizes the findings for who became an academic here:
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 article then argues that this polarization has had a number of harmful effects on the law, including that it has made legal academia overwhelmingly liberal and therefore of less interest and influence on more conservative judges and Justices.
The study’s basic finding that former law clerks often tend to work in places where others share their ideological orientation certainly matches my anecdotal evidence. As I once described the staffing switch from the Bush White House lawyers to the Obama White House lawyers, “Out With the Scalia Clerks from Kirkland, In With the Stevens Clerks from WilmerHale.” At the same time, the article makes a lot of quite broad claims about cause and effect that I though overreached. The identified trends are interesting, but I’m not sure they reveal anything particularly important. It seems to me that these trends largely reflect the fact that a lot of law clerks are interested in career paths that factor in ideological views, such as high-level DOJ spots, White House Counsel gigs, and judicial appointments. The trends reflect those realities, but I don’t tend to think they are the cause of significant additional polarization in views of the law. That’s my initial sense, at least.
UPDATE: Following Ilya’s model of full disclosure, I should add that I clerked for Justice Kennedy, identified in the article as one of the Court’s conservative Justices. I’m not sure it had any impact on my employment, though: Before clerking I was a law professor at GW and a VC blogger, and after clerking I went back to being a law professor at GW and a VC blogger.
Ryan Waxx says:
You have the cause and effect mixed up. A person who’s clerked for a conservative has zero chances of hiding his politics from a liberal tenure board. A madman might try for that career path anyway, but he has to like the idea of wasting a couple years of work in exchange for the privilege of being rejected for the most noble of reasons.
December 21, 2009, 4:02 pmRedman says:
Flash. The Supreme Court is a political body. Who knew?
December 21, 2009, 4:19 pmfrankcross says:
One possible small problem here is opportunity. Of the justices of the Rehnquist Court, more liberals went to the academy and more conservatives went to government. Now, the latter is probably an artifact of the 8 year Bush Administration welcoming conservatives. Some of those individuals might have and might still join the academy. Liberals who went to the academy might have gone to government, had it been in Democratic hands.
December 21, 2009, 4:26 pmlgm says:
This probably has more to do with how conservative justices choose law clerks than the influence of the justices on the clerks. If clerks chosen by conservative justices are under-represented in prestigious law schools, that suggests that conservative justices are choosing based on political views rather than legal sharpness. There is a reason Federalist Society on your resume after all.
December 21, 2009, 4:50 pmUncleWin says:
lgm,
No. Conservative and liberal justices alike overwhelmingly select their clerks from the elite law schools. That clerks for conservative justices do not return to those schools to teach in the same proportion as their liberal counterparts says nothing of their qualifications for the clerkship.
December 21, 2009, 5:00 pmLarryA says:
The study seems to presume that the clerks’ political leanings are a product of which Supreme Court justice they serve. It could also be that conservative students apply to conservative justices and liberal students apply to liberal justices.
December 21, 2009, 5:01 pmArthurKirkland says:
I believe it would be better for justices to engage ideologically dissimilar clerks roughly as often as they engage ideologically similar clerks. I believe one learns at least as much — and usually more — from someone with a differing perspective.
I hope I continue to hold this position throughout a Supreme Court transition from seven Republican-appointed justices to six or seven Democratic-appointed justices.
December 21, 2009, 5:19 pmvonneumann says:
The article was written by my professor at NYU Law, Bill Nelson, and several other professors at the school. When I attended the school, Nelson’s entire first year course was focused on how to bring about change by using the Supreme Court. This perspective should be remembered.
December 21, 2009, 5:44 pmmariner says:
lgm:
Alternatively, it could mean that prestigious law schools are choosing based on political views rather than legal sharpness, and that seems rather more likely.
December 21, 2009, 7:30 pmCornellian says:
It strikes me as unusual to get an academic appointment before a SCOTUS clerkship.
December 21, 2009, 8:43 pmLeo Marvin says:
I like your optimism.
December 21, 2009, 8:50 pmOrin Kerr says:
Cornellian,
Perhaps the better way to think of it is that I was hired as a professor without such a clerkship. I had applied to clerk the year after law school and had one interview but no offer; I didn’t think of applying again until about 4 years later, when I was already a tenure-track prof.
December 21, 2009, 9:00 pmCareer Polarization Among Former Supreme Court Law Clerks | Liberal Whoppers says:
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December 22, 2009, 6:03 amCJColucci says:
As Yogi Berra once said, if people don’t want to come to the ball park, you can’t stop them. I know a handful of clerks for conservative SCOTUS judges who teach in lib’rul law schools. They never seemed to have any trouble.
December 22, 2009, 7:45 pmLeo Marvin says:
I infer more than interview is possible. Does anyone ever get more than one offer, and if so do the Justices who made them compete to woo the candidate?
December 22, 2009, 7:51 pm