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Political Leanings of Supreme Court Clerks Help Sway Votes

A recent study published in the DePaul Law Review confirms what Supreme Court observers have long suspected, and what former Chief Justice Rehnquist has long feared: that judicial law clerks' ideological policy preferences have an effect on the way the Justices vote. For those who aren't up to cutting through the law review's complicated statistical analysis, Adam Liptak summarizes the conclusions in his New York Times "Sidebar" column.

Liptak explains that 50 years ago, Justice Rehnquist -- who began his own career as a Supreme Court clerk -- broke the clerks' code of silence to express his concern that his fellow law clerks were shifting the Court's views to the left. The DePaul study confirms Rehnquist's anecdotal experience, concluding that "all things being equal, the presence of additional liberal clerks in a given justice’s chambers makes a liberal vote more likely, the study says, while the presence of additional conservative clerks pushes justices in the opposite direction.

So how does a kid a few years out of law school influence an experienced Justice? According to Liptak:

The study itself concedes the point, noting that “the mechanisms by which clerks might influence their justices’ behavior are many and varied,” ranging from “candid and open policy debates” to “deception in memoranda writing."

Of course, the Justices themselves implicitly recognize that they're vulnerable to influence. For that reason, Justices typically select law clerks based in part on similarities in ideology and judicial philosophy. In addition to personal interviews, the Justices rely on the judicial feeder system and choose candidates who previously clerked for federal judges with philosophies that match their own. Liptak writes:

In the six years ending in 1998, for instance, more than two-thirds of the clerks for three liberal justices -- Ruth Bader Ginsburg, David H. Souter and John Paul Stevens -- had first clerked for appeals court judges appointed by Democratic presidents.

Chief Justice Rehnquist, by contrast, drew about 95 percent of his clerks from Republican appointees. And Justice Clarence Thomas, the study found, “never went to a Democratically appointed judge for a clerk.” (Justice Thomas has compared choosing clerks to “selecting mates in a foxhole.”) Lawrence Baum, who conducted the 2001 study with Corey Ditslear, said the trend it documented continued. The conservative justices overwhelmingly get their clerks from Republican-appointed judges,” Professor Baum said in an interview.

I don't dispute the results of the study, but what I wonder is this: Should Justices take account of their clerks' political preferences in the hiring process? Send your comments below.

Posted by Carolyn Elefant on December 9, 2008 at 02:16 PM | Permalink | Comments (0)

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