The Political Divides in DC Appellate Practices — A Comment on the Clement Kerfuffle

One of the unfortunate aspects of the Paul Clement departure from King & Spalding — unfortunate, at least to me — is the extent to which it may signal a growing divide in Washington appellate practices between “conservative” firms and “liberal” ones. This is a big topic, and I’m not the best person to write on it: I last worked for a DC law firm when I was a summer associate 15 years ago. Still, I think it’s a significant issue within the DC legal community, or at least the Supreme Court bar, and I wanted to offer a few preliminary thoughts about it.

First, some background. Several of the most prominent Washington DC law offices — especially those known for appellate and Supreme Court work — have a relatively specific reputation on the political spectrum. For example, the DC offices of Jenner & Block and WilmerHale are liberal, while the DC offices of Kirkland & Ellis and Gibson Dunn are conservative. There are exceptions, of course: in particular, WilmerHale has hired a few prominent conservatives. But for the most part these firms have a relatively clear place on the political spectrum.

Of course, it’s not always that simple: Many DC appellate types are lawyer’s lawyers who shy away from obvious ideological branding. And many appellate practice have a genuine mix of views. But it happens often enough to be a relatively common dynamic.

The ideological orientation of DC appellate shops makes some sense given the fact that many lawyers at these firms are interested in future government service — and at the higher levels, many of the jobs require political appointments. Connections matter when Administrations are making staffing decisions, and the best way to build connections is to work closely with other connected people who can help you. So if you’re interested in joining a future Republocratic Administration, it makes sense to try to go to a law firm with lots of bigwig Republocrats. If a big firm has hired a slew of influential Republocrats from the last Republocratic Administration — hotshots who are likely to be bigwigs in the next Republocratic administration — then a fresh law school graduate with Republocratic sympathies who wants to get a cool government job someday might sensibly aim for a job there. Impress the bigwigs in private practice, the thinking runs, and they’ll take you along back into government the next time the Republocrats win.

One tempering force on that narrative has been timing. In recent decades, big law firms have made intentional decisions to start or expand DC-focused appellate practices at specific times. The timing of that decision can influence the politics of the folks in the appellate practice because those practices often are built from bigwigs leaving government practice. If you’re starting an appellate practice in 2008, for example, the easiest way to do that was with departing Bushies who were looking to re-enter private practice. The chances are that your practice would include a bunch of conservatives. If you were starting the practice in 2000, on the other hand, the chances are that your practice included a bunch of liberals from the Clinton Administration. That accident of timing led to some interesting ideological mixes; in particular, some generally liberal law firms ended up with some relatively conservative appellate practices. Clement’s group at King & Spalding struck me as one example.

I think Clement’s departure is a bit unfortunate because it suggests that even such an ideological mix can be unstable. Notably, Clement left a liberal firm to join Viet Dinh’s small firm, which is mostly if not entirely rightward-leaning. And Viet seems to have plans to expand the firm into a more visible DC appellate shop, which I assume will continue to be mostly conservative. I know most of the people at Viet’s firm, and they’re terrific lawyers. So my point is not about Clement or Bancroft specifically. But I do think something is lost when firms tend to have a specific political orientation, and the fact that the King & Spalding situation has pointed towards that increasing rather than decreasing over time makes me a bit sad. Perhaps I have too much of an idealized notion of legal practice as serving clients rather than causes, and perhaps I’m just wary of the groupthink that can result when folks with strong views surround themselves with others who share the same views. But it does strike me an an unfortunate trend.

Anyway, my ideas here are not particularly well-formed, and I gather commenters will have also sorts of criticisms of them. But I did want to put those ideas out there, especially if others are interested in reflecting on the same trend.