Question about Judicial Clerks

[aerocontrols]

In another thread the following is offered up as evidence that someone is a GOP operative - that he was a:

Law Clerk to Justice William H. Rehnquist, U.S. Supreme Court, 1974-1975.

I was under the impression that Supreme Court Justices chose clerks from all over the political spectrum.

About a decade ago, I was a law clerk at the U.S. Supreme Court. I worked for an extraordinary justice, Antonin Scalia. Scalia is a conservative. I am not. This fact confuses most people. How could a conservative justice hire a liberal clerk? How could a liberal work for a conservative?

This is a vision of law that is common today. The events of the last month have only strengthened it. It is the vision Texas Gov. George Bush evokes when he castigates the Florida Supreme Court for "changing" the law. It is a picture of law as politics, or better, politics by other means. Of judges deciding cases according to their political preferences; using the law to achieve what, through the ordinary political process, they could not.

I am a lawyer because I believe this picture of the law is wrong. And no time taught me its errors more forcefully than the year I watched Scalia judge. For there is no real check on a Supreme Court justice's power, save his integrity. And there is no effective limit to the campaign he might wage to bend the law to his politics, save the respect he has for the law apart from politics. And yet this Justice, who has strong political views, repeatedly yielded to what the law required, when the law required it. No doubt, not every case was controlled; not every field of law is governed by strong rules. But where there was a rule to follow, Scalia followed it, his politics notwithstanding.

Perhaps my impression is wrong, and Lessig was an exception to the rule?

Just how ideologically biased are clerks toward the views of the Justice who they serve under?

How much so in 1974?

MattJ

 

[crimresearch]

I'll go way out on a limb here, and hazard a guess that when judges are accepting clerks, they put the question of which political party that clerk will be an 'operative' for a quarter of a century into the future, lower on the list than other items...like recomendations, prestige of school, etc.
Being a member of the Young Democrats, or Campus Republicans isn't neccessarily a lifelong affliction.

But hey maybe the commonly held belief among some JREF members that the truly evil can predict or even manipulate the future timeline (as in the case of the Vietnam era draft board and military personnel clerks knowing that GWB's daddy would move from being a government bureaucrat to President down the road, or in the case of 19 to 24 year old sailors serving alongside Kerry in 1970 initiating a 'time capsule' smear campaign against his 2004 presidential ambitions) do hold some water...

Or maybe I'm just toooo damn skeptical.

 

[jj]

I'll go way out on a limb here, and hazard a guess that when judges are accepting clerks, they put the question of which political party that clerk will be an 'operative' for a quarter of a century into the future, lower on the list than other items...like recomendations, prestige of school, etc.
Being a member of the Young Democrats, or Campus Republicans isn't neccessarily a lifelong affliction.

But hey maybe the commonly held belief among some JREF members that the truly evil can predict or even manipulate the future timeline (as in the case of the Vietnam era draft board and military personnel clerks knowing that GWB's daddy would move from being a government bureaucrat to President down the road, or in the case of 19 to 24 year old sailors serving alongside Kerry in 1970 initiating a 'time capsule' smear campaign against his 2004 presidential ambitions) do hold some water...

Or maybe I'm just toooo damn skeptical.

Perhaps you can't imagine that a judge would hire clerks who would share his or her ideological theories?

 

[Rob Lister]

Perhaps you can't imagine that a judge would hire clerks who would share his or her ideological theories?

I'll also go out on a limb here and suggest that is probably more the exception than the rule but for the not-so-obvious reasons. I suspect (but could easily be mistaken) that clerking for a SCJ requires skills and resorces that far, far exceed political affilition.

To even be considered for the job requires that you are able to articulate ANY position required, exquisitely, whether you believe [in] it or not.

 

[aerocontrols]

I'll go way out on a limb here...

Or maybe I'm just toooo damn skeptical.

Perhaps you can't imagine that a judge would hire clerks who would share his or her ideological theories?

Thanks for your input, but I'm mostly trying to find out what happens in the Law Clerk system and why, not speculate about what various people here may believe or not believe.

There's a reason why I started a whole new thread.

MattJ

 

[Suddenly]

Thanks for your input, but I'm mostly trying to find out what happens in the Law Clerk system and why, not speculate about what various people here may believe or not believe.

Why the Justices choose a clerk is up to them, but usually it depends on scholarship way more than political leanings although a justice isn't going to hire someone so politically biased that it will interfere with the work to be done.

The flip side is easier, the question of whether someone who clerks for a Judge must then obviously share that Judge's beliefs is easier to answer:

No. They don't.

The easiest way to explain this is that high level clerkships are so hard to get and generally so beneficial to future career prospects that a prospective clerk is going to take what he or she can get and not really worry about this sort of thing.

 

[crimresearch]

Thanks for your input, but I'm mostly trying to find out what happens in the Law Clerk system and why, not speculate about what various people here may believe or not believe.

There's a reason why I started a whole new thread.

MattJ

I see...you want input, just not from people who might tell you how it works...

 

[aerocontrols]

I see...you want input, just not from people who might tell you how it works...

Your first paragraph was fine. Your second paragraph looked like 'bait' to me to continue the argument from the other thread. Unsurprisingly, jj bit.

Of course, you are free to continue that argument in this thread as well, if you both choose. I can't stop you.

 

[crimresearch]

Since I have JJ on ignore, the only argument is the one you and JJ are promoting.

And I will take this as meaning that you are not in the least interested in hearing from someone who has actually had students go on to become law clerks.

 

[aerocontrols]

Since I have JJ on ignore, the only argument is the one you and JJ are promoting.

And I will take this as meaning that you are not in the least interested in hearing from someone who has actually had students go on to become law clerks.

I'm very interested, so I'll try again:

Perhaps my impression is wrong, and Lessig was an exception to the rule?

Just how ideologically biased are clerks toward the views of the Justice who they serve under?

How much so in 1974?

 

[jj]

Since I have JJ on ignore, the only argument is the one you and JJ are promoting.

Since you claim to have me on ignore since your attempt at a failed question and political force, how do you know I'm promoting anything?

 

[jj]

Why the Justices choose a clerk is up to them, but usually it depends on scholarship way more than political leanings although a justice isn't going to hire someone so politically biased that it will interfere with the work to be done.

The flip side is easier, the question of whether someone who clerks for a Judge must then obviously share that Judge's beliefs is easier to answer:

No. They don't.

The easiest way to explain this is that high level clerkships are so hard to get and generally so beneficial to future career prospects that a prospective clerk is going to take what he or she can get and not really worry about this sort of thing.

Here we see an answer from somebody who might actually know.

Thank you. I'm a bit surprised that there is that little ideology involved, but you obviously have more insight into this than I do.

 

[aerocontrols]

Why the Justices choose a clerk is up to them, but usually it depends on scholarship way more than political leanings although a justice isn't going to hire someone so politically biased that it will interfere with the work to be done.

I guess what I'm envisioning as a possibility is not so much that a Judge rifles through his applicants looking for ideologically pure candidates but where applicants are pre-selected - either by their law professors (I really think you should apply for a clerkship with Judge X) or on their own. Do students gravitate toward professors with whom they have shared ideology, professors who may be chummy with judges of the same ideology?

The easiest way to explain this is that high level clerkships are so hard to get and generally so beneficial to future career prospects that a prospective clerk is going to take what he or she can get and not really worry about this sort of thing.

How often does a clerkship become available at the Supreme Court? Are there positions with every judge in every year?

 

[Suddenly]

I guess what I'm envisioning as a possibility is not so much that a Judge rifles through his applicants looking for ideologically pure candidates but where applicants are pre-selected - either by their law professors (I really think you should apply for a clerkship with Judge X) or on their own. Do students gravitate toward professors with whom they have shared ideology, professors who may be chummy with judges of the same ideology?

What I am saying is that for the most part it is like a basketball player trying to get a job in the NBA, except with an incoming talent pool at least ten times deeper. You take what you can get and count the money (or in this case, experience).

There will be some attraction based on political belief in both directions, as there will also be the potential for later conversion to the Judge's viewpoint. However, these jobs are such plums that people who want clerkships are unlikely to worry about who they clerk for. Professors will for the most part want to get as many students into high level clerkships for bragging purposes. Judges want smart people that understand them and will do good work. If I were in that position, despite being somewhat liberal, I would rather have a conservative that understands his role is writing within my legal framework than a liberal that can't understand the role.

That is if we are talking about Federal post-graduate clerkships, which are considered high-level resume material. Summer clerkships and state courts would be for the most part a different story depending on the context. I managed to clerk for a federal judge one summer, and seeing as he was a big Law and Order Republican appointee (his court was known as "The House of Pain" to the local defense bar) I'll go on a limb and suggest I didn't share many of his views.

How often does a clerkship become available at the Supreme Court? Are there positions with every judge in every year?

Hiring policies are up to the Justices, usually clerks are hired for a term of 1 to 4 years, so every year there are several vacancies. I've heard of some judges using career clerks as well. I'm sure if you google you can find more information as applying for these sorts of things are a big deal in some circles.

 

[NoZed Avenger]

I guess what I'm envisioning as a possibility is not so much that a Judge rifles through his applicants looking for ideologically pure candidates but where applicants are pre-selected - either by their law professors (I really think you should apply for a clerkship with Judge X) or on their own. Do students gravitate toward professors with whom they have shared ideology, professors who may be chummy with judges of the same ideology?

There may be a slight leaning that way, but my informal look into it a few years back led me to believe that ideology actually has very little to do with the process. The vast majoirty of my knowledge is simply anecdotal, however, so I cannot say much.

I do know O'Neil was 1st in his class at UT when he graduated. I would guess that his class had 700-800 in it at the time. For persons outside of Texas (and in areas unrelated to Texas law), UT is probably judged to probably be the best law school in the state.

I am not saying that is necessarily accurate, but I believe that was the perception in the 70's, too.

 

[Suddenly]

Here we see an answer from somebody who might actually know.

Thank you. I'm a bit surprised that there is that little ideology involved, but you obviously have more insight into this than I do.

Another factor is that most judges don't like to consider themselves in political terms. If there is ideological bias it is more along the lines of legal theory than politics. Scalia isn't going to hire someone who is hostile to textualism, regardless of politics.

Such a decision has practical value as well seeing as Scalia would be concerned that someone that doesn't get his legal theories would not be a good clerk for him.

 

[Michael Redman]

For persons outside of Texas (and in areas unrelated to Texas law), UT is probably judged to probably be the best law school in the state.

I am not saying that is necessarily accurate, but I believe that was the perception in the 70's, too.

That's some serious qualifying you're doing there. Let me guess: STCL or SMU? I'm guessign STCL, because you don't seem like the product of SMU upbringing.

 

[NoZed Avenger]

That's some serious qualifying you're doing there. Let me guess: STCL or SMU? I'm guessign STCL, because you don't seem like the product of SMU upbringing.

Nope.

I'll give you another guess -- My hedging has to do with Texas trial work, primarily. I think UT potentially has the best program overall, especially in some areas such as international law (though recently I would say 2-3 other schools in the state could argue the overall point).

But I only applied at 1 law school in Texas because I planned to litigate in Texas. I did not feel that UT was the best for that particular item.

N/A

 

[Suddenly]

Nope.

I'll give you another guess -- My hedging has to do with Texas trial work, primarily. I think UT potentially has the best program overall, especially in some areas such as international law (though recently I would say 2-3 other schools in the state could argue the overall point).

But I only applied at 1 law school in Texas because I planned to litigate in Texas. I did not feel that UT was the best for that particular item.

N/A

I can dig it. I only applied to one law school in my state as well.

It helps that we only have the one school...

 

[jj]

Another factor is that most judges don't like to consider themselves in political terms. If there is ideological bias it is more along the lines of legal theory than politics. Scalia isn't going to hire someone who is hostile to textualism, regardless of politics.


What's textualism, out of curiousity?

I can certainly see that there has to be some compatability between clerk and judge.


Such a decision has practical value as well seeing as Scalia would be concerned that someone that doesn't get his legal theories would not be a good clerk for him.

Well, yes. I think that's necessary, really, if the judge is to get any useful input from the clerk.