Monday, September 13, 2010

Law Clerk Polarization and Credentials

By Mike Dorf

In a pair of articles in last Tuesdays NY Times, Adam Liptak offered an interesting statistical snapshot of law clerk hiring by the Supreme Court.  The main article focused on how law clerks have become more ideologically polarized in recent years than a generation ago.  Although the article describes this as a general phenomenon, the accompanying graphic indicates that it is substantially more pronounced among the conservatives.  During the Roberts Court period, Justices Scalia and Thomas have hired no clerks who previously clerked for Democratic appointees, whereas the liberals have hired a small but substantial number of clerks who previously clerked for Republican appointees.  (The body of the story does note that Justice Breyer hires almost as many former clerks for Repubican appointees as from Democratic appointees.)  But even treating this as a phenomenon of the conservative Justices only, the article raises a number of interesting questions, including:

1) Why did Justice Scalia apparently abandon his former practice of hiring at least one moderate-to-liberal clerk to play devil's advocate?

2) Is the Court really more divided ideologically now than it was during the Burger years?

3) If not, what explains the fact that conservative Justices changed their hiring patterns?

4) Could it be the research (cited by the article) that shows that law clerks do appear to have (some) influence on Justices' votes?  That seems hard to believe, because Justices would certainly not think of themselves as being influenced by their law clerks, and thus not "afraid" of being persuaded or otherwise led by their clerks..

And so we are left with something of a puzzle.

Meanwhile, the second article on law clerk hiring is even more intriguing in at least one way.  This article describes how, with the exception of Justice Thomas, the Justices have, in recent years, overwhelmingly selected their law clerks from a very small number of very selective law schools.  The article then quotes a statement made by Justice Thomas in a February session at the University of Florida (which I praised here).  The article contains the following quotation from Justice Thomas:
“Self-proclaimed smart bloggers . . . referred to my clerks last year as TTT — third-tier trash,” he told students at the University of Florida in February. “That’s the attitude that you’re up against.”
Who are these self-proclaimed smart bloggers, I wondered, so I searched for the phrase "third tier trash" and discovered that "TTT" actually stands for "third tier toilet" or "third tier trash can," and is not used (by smart bloggers, not-so-smart bloggers, or, so far as I can tell, anybody) to refer to students who attend law schools ranked in the third tier (presumably by US News).  Instead, TTT is a term of derision for these schools themselves, insofar as some bloggers believe that some such schools hold out false hope to students who will pay big $$ in tuition without much prospect of landing a good (or any) job in law at all.  Perhaps Justice Thomas (reasonably) misunderstood TTT to be a term of derision for persons rather than for law schools, in much the way that the offensive term "white trash" refers to people.

In any event, I'm more interested in the assumption embedded in what Justice Thomas was saying.  Justice Thomas more or less equates going to an elite law school with unearned privilege.  Now it happens that elite law schools and universities more broadly do in fact draw their students from a pool that is disproportionately privileged.  But not wholly so, as Justice Thomas himself obviously knows, having attended Yale Law School despite growing up poor in rural Georgia.

Although not stated in expressly political terms, it is hard not to hear in Justice Thomas's words a by-now standard conservative trope: Elite universities are bastions of liberal thought, which, in turn, is elitist.  In this view, even someone like Barack Obama, who attended Columbia College and Harvard Law School despite coming from modest means, is part of the liberal elite.  Thomas himself is not automatically elitist under this approach because, despite attending Yale, he resists its supposedly dominant ideology and frequently bashes his alma mater.

Finally, lest there be any confusion on the point, I do think there is much to be said for SCOTUS Justices selecting their clerks from a wider range of law schools.  I just don't like the cultural/political resonance in the way Justice Thomas made his point.


Paul Scott said...

Can the conclusions really be reached by the methodology employed? The data slots clerks as being from Judges appointed by Democrats or Republicans. The conclusions being reached are related to the political leanings of the clerks.

Does Kosinski only hire clerks he believes to be conservatives? If not, does he only recommend those that are conservative to conservative Justices? To me, the data seems almost meaningless to the question being asked. Perhaps Scalia still hires a single liberal clerk each year, it just so happens that that clerk for the last five years has come from a judge appointed by a Republican.

Without some evidence that there is a strong positive correlation between the party of the President that appointed a Judge and the political ideology of a clerk for that judge, I just don't see how this data is meaningful. (Frankly, even in the presence of such a strong positive correlation, the n is so small that noise would likely dominate anyway).

Paul Scott said...

Additionally, just looking at the last 30 years, we have had 10 years of Democratic Presidents and 20 years of Republican Presidents. Presumably (though I have no data), there has been a strong Republican trend in judicial appointments over those 30 years. If that is right, even if SCOTUS clerkships were assigned randomly, you would expect a strong trend towards clerks coming from Judges appointed by Republicans.

Michael C. Dorf said...

Paul, you raise legit questions, but I think the findings are reasonably robust (although no info re statistical significance is provided). The reason is that the article cites a study that did find a significant "law clerk ideology" effect, even using appointing President of lower court judge as a proxy for law clerk ideology. Other studies do show that Republican lower court appointees are more conservative than Democratic lower court appointees and anecdotally, I do sense that the lower court "feeder" judges pretty strongly tend to hire among their own. There are some prominent Republican appointees--Kozinski and Posner come to mind--with libertarian and otherwise independent streaks, and they do hire liberals from time to time, but I think the general trend is still valid. (Also, the article notes that Kozinski is mostly feeding Kennedy, who is himself the least conservative of the conservatives, so the "Kozinski" effect would not much show up among the most conservative Justices).

Paul Scott said...

The one paper (Peppers and Zorn) actually linked in the news article used a survey to assign political ideology to the clerks. Even there, where it (Peppers and Zorn) used party affiliation of the clerk as a proxy for political ideology of the clerk, the paper was quick to note the problem of using party affiliation as a proxy for ideology.

Though anecdotal, this rings true to me in part because of my own experiences. My party affiliation has changed over the years, but I feel my own politics have moved only slightly. I am certainly more liberal today than I was 20 years ago, but I am a Democrat today and was Republican 20 years ago because of changes in the politics of the two parties more so than changes in my ideology.

Looking at the data in the Peppers and Zorn paper, data which ends with clerks in 2004, Scalia, for example, was hiring approximately 65% self-identified Republicans and 35% self-identified Democrats. Only Thomas was hiring 100% self-identified Republicans. Thomas is also noted as having hired exclusively from Republican appointed Judges. So this seems to reinforce (on a very small n) that correlation made in the news article.

The other extreme, however, hiring 100% self-identified Democrats, is Breyer. This is the Justice in the news article with the most even split between clerks coming from Judges appointed by Republicans or Democrats.

Also, with Thomas being the major outlier, the Peppers and Zorn paper shows a much stronger correlation between Liberal justices hiring self-identified Democrats than it does conservative justices hiring self-identified Republicans. This correlation runs opposite the trend noted in the news article.

It is certainly possible that since the news article data starts in 2005, and the Peppers and Zorn data ends in 2004, that there was a phase shift at 2004/2005. But I think the more likely explanation is that the political affiliation three-times removed is just a bad proxy for political ideology of the clerk.

Michael C. Dorf said...


Thanks for that extra level of detail. I hadn't looked back at Peppers and Zorn since they first published.

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