Federalist Society and Clerkships Forum

[Barrred]

Its really hard to generalize regarding judges' preferences for hiring clerks with similar political/judicial ideologies.

I think its fair to say that district judges care less than COA judges about their clerks' political persuasion. From my experience, conservative district judges may care *particularly less* because conservative district judges are (slightly) more likely to see their role at the trial court as entirely apolitical, but this is just based on my anecdotal experience.

At the COA level, judges from both sides of the spectrum seem to care at least somewhat about political ideology, but I don't think you can generalize about whether liberal or conservative judges care more/less. I know of judges from both sides who explicitly seek out people who share their political ideology, as well as judges from both sides who explicitly seek out ideological diversity in their clerks.

[ndirish2010]

There are more circuit judges than many would think that simply hire without ideological preference. I think this might even include more conservatives than progressives, given that there are far more progressive law students.

[Anonymous User]

I'm clerking for a GOP appointed judge who has sent clerks to both liberal and conservative SCOTUS and I was asked no questions on the subject of any ideological issues. I don't think ideology will factor much in my experience.

I was asked in an interview for another GOP appointed judge who my favorite justice was. I know this judge did not like my answer. Needless to say, I did not receive an offer.

[charmonster]

I'm clerking for a GOP appointed judge who has sent clerks to both liberal and conservative SCOTUS and I was asked no questions on the subject of any ideological issues. I don't think ideology will factor much in my experience.

I was asked in an interview for another GOP appointed judge who my favorite justice was. I know this judge did not like my answer. Needless to say, I did not receive an offer.

"GOP appointed" isn't a very meaningful category here.

[Phil Brooks]

Does anyone else see the hypocrisy of conservatives screaming for all views to be heard (when a right-winger wants to make a speech) while at the same time screening for ideological purity in their group members and, it turns out, clerkship applicants?

[Barrred]

Does anyone else see the hypocrisy of conservatives screaming for all views to be heard (when a right-winger wants to make a speech) while at the same time screening for ideological purity in their group members and, it turns out, clerkship applicants?

There is a difference between wanting all views to be expressed in society and wanting all views to be expressed in your chambers. In fact, it seems possible that conservative judges' preference for hiring conservatives is a logical extension of their wanting all views to be heard, because they feel that if they didn't hire the conservative clerks, they wouldn't be hired at all, whereas there is no dearth of judges willing to hire liberal clerks.

Whether this sentiment is right or wrong is a different question, but I think its at least internally consistent/don't constitute "hypocrisy."

[rpupkin]

Does anyone else see the hypocrisy of conservatives screaming for all views to be heard (when a right-winger wants to make a speech) while at the same time screening for ideological purity in their group members and, it turns out, clerkship applicants?

Some conservative judges strongly prefer clerks who share their political and judicial philosophies; others don't. Same for liberal judges.

[Phil Brooks]

Does anyone else see the hypocrisy of conservatives screaming for all views to be heard (when a right-winger wants to make a speech) while at the same time screening for ideological purity in their group members and, it turns out, clerkship applicants?

Some conservative judges strongly prefer clerks who share their political and judicial philosophies; others don't. Same for liberal judges.

Seems to me like a safe space from ideas that might challenge their worldview.

[Barrred]

Does anyone else see the hypocrisy of conservatives screaming for all views to be heard (when a right-winger wants to make a speech) while at the same time screening for ideological purity in their group members and, it turns out, clerkship applicants?

Some conservative judges strongly prefer clerks who share their political and judicial philosophies; others don't. Same for liberal judges.

Seems to me like a safe space from ideas that might challenge their worldview.

In defense of this practice, the worldview-challenger role is generally supposed to be played by the advocates, other judges on the panel, and higher reviewing courts.

Not sure that is how I would run my chambers if I were a judge, but it seems to me that the judicial system will ensure that a judge's worldview is properly challenged without him having to maintain perfect ideological diversity among his personal staff (just like the political system allowed President Obama's worldview to be plenty challenged without requiring him to hire conservative white-house staffers).

[rpupkin]

Does anyone else see the hypocrisy of conservatives screaming for all views to be heard (when a right-winger wants to make a speech) while at the same time screening for ideological purity in their group members and, it turns out, clerkship applicants?

Some conservative judges strongly prefer clerks who share their political and judicial philosophies; others don't. Same for liberal judges.

Seems to me like a safe space from ideas that might challenge their worldview.

In defense of this practice, the worldview-challenger role is generally supposed to be played by the advocates, other judges on the panel, and higher reviewing courts.

Not sure that is how I would run my chambers if I were a judge, but it seems to me that the judicial system will ensure that a judge's worldview is properly challenged without him having to maintain perfect ideological diversity among his personal staff (just like the political system allowed President Obama's worldview to be plenty challenged without requiring him to hire conservative white-house staffers).

For what it's worth, I have heard more stories about conservative judges who would go out of their way to hire liberal clerks for the sake of ideological diversity--Scalia and Gorsuch are two conspicuous examples--than I have about liberal judges who would go out of their way to hire conservative clerks.

[LurkerTurnedMember]

OP here. A lot of good comments for sure. I appreciate the data points given above. That is a bit shocking to ask an applicant about his or her political views so bluntly. I can understand using a proxy, like "what's your favorite justice" or "are you part of fedsoc." But to just straight up quiz you to make sure you're conservative enough. Wow.

I also wonder whether judges face any pressure to ensure their hiring is objectively reasonable. This is a discussion for anoher thread, of course, but surely if a judge expressly hired only men or through proxy, like only applicants who could grow beards or had adam's apples, there would be consequences, right?

[rpupkin]

I also wonder whether judges face any pressure to ensure their hiring is objectively reasonable.

LOL. Life tenure, dude.

[LurkerTurnedMember]

I also wonder whether judges face any pressure to ensure their hiring is objectively reasonable.

LOL. Life tenure, dude.

I know but... Even if a judge said to an applicant "you're black/woman/gay/poor and I don't hire you people" you're saying nothing legal (other than impeachment) could happen?

[A. Nony Mouse]

For what it's worth, I have heard more stories about conservative judges who would go out of their way to hire liberal clerks for the sake of ideological diversity--Scalia and Gorsuch are two conspicuous examples--than I have about liberal judges who would go out of their way to hire conservative clerks.

I believe Scalia stopped doing this a while back, though.

Also frankly I don't think there are going to be any consequences for who a judge decides to hire. It's a temporary position working directly for an individual in a pretty personal capacity - how can you really challenge that? If an Oscar listing said something like "no [fill in your chosen group] need apply" that would be one thing, but an A3 judge is never going to list a job description like that, and they don't need to because they have complete control over who they interview/hire. They're never going to say to an applicant "I don't hire your kind" because they just won't interview them to start with.

(I suppose in theory someone could sue a judge for employment practices but it's going to be very messy to get past judicial discretion and it's not likely to get them impeached. And I don't think it would ever happen based on not hiring someone - more like if they hired someone then sexually harassed them. Not that I think that lawsuit would get very far either though.)

[rpupkin]

For what it's worth, I have heard more stories about conservative judges who would go out of their way to hire liberal clerks for the sake of ideological diversity--Scalia and Gorsuch are two conspicuous examples--than I have about liberal judges who would go out of their way to hire conservative clerks.

I believe Scalia stopped doing this a while back, though.

Scalia used to hire at least one liberal clerk every term (he'd call them "counter clerks"), and he stopped making it an annual thing sometime in the 2000s. But he still made an effort to hire liberal clerks right up to the end; he had at least a couple liberal clerks in his last few years on the bench.

[A. Nony Mouse]

For what it's worth, I have heard more stories about conservative judges who would go out of their way to hire liberal clerks for the sake of ideological diversity--Scalia and Gorsuch are two conspicuous examples--than I have about liberal judges who would go out of their way to hire conservative clerks.

I believe Scalia stopped doing this a while back, though.

Scalia used to hire at least one liberal clerk every term (he'd call them "counter clerks"), and he stopped making it an annual thing sometime in the 2000s. But he still made an effort to hire liberal clerks right up to the end; he had at least a couple liberal clerks in his last few years on the bench.

I stand corrected.

[Anonymous User]

I'm clerking for a (non-feeder) conservative judge who regularly participates in fed soc panels. I think some of the fears of being "sniffed out" as not conservative enough are avoidable. Yes, you want red soc on your resume but no one is going to grill you on how well you attend events/what the three principles are, etc. Also, an applicant can to a certain extent drive the conversation to areas where you are "sufficiently conservative" even if you aren't across the board. For instance, you can bring up federalism, or national security, or police deference, or textualism, or separation of powers, or eminent domain law. Then that will be the topic for a bit.

But yeah, it's a bad idea to discuss the value of legislative history.

Eta: this is directed at people who agree with the fed soc position on some but not all issues. It doesn't apply to liberal students just trying to get a hiring edge.

[HillandHollow]

I come from a school where FedSoc is probably the largest and strongest student (and alumni) group. A very liberal friend ended 1L in top 5%, and was encouraged by faculty to join FedSoc as a signalling and networking mechanism. The friend did not do it (did not want to clerk), but it sounded like pretty common practice.

As far as my personal experience: for judges that I believed (for whatever reason) leaned liberal or just didn't care, I left ACS on my resume. For the opposite, I took it off. But, my position is pretty easily guessed by reading the experience and volunteer sections of my resume. I ended up getting an offer from a right-leaning judge using the resume that still had ACS on it. So, who knows?

[LurkerTurnedMember]

I'm clerking for a (non-feeder) conservative judge who regularly participates in fed soc panels. I think some of the fears of being "sniffed out" as not conservative enough are avoidable. Yes, you want red soc on your resume but no one is going to grill you on how well you attend events/what the three principles are, etc. Also, an applicant can to a certain extent drive the conversation to areas where you are "sufficiently conservative" even if you aren't across the board. For instance, you can bring up federalism, or national security, or police deference, or textualism, or separation of powers, or eminent domain law. Then that will be the topic for a bit.

But yeah, it's a bad idea to discuss the value of legislative history.

Eta: this is directed at people who agree with the fed soc position on some but not all issues. It doesn't apply to liberal students just trying to get a hiring edge.

WHOA! WHOA! WHOA! what are the three principles? I'm now very interested. Fed Soc has principles?

[Barrred]

I'm clerking for a (non-feeder) conservative judge who regularly participates in fed soc panels. I think some of the fears of being "sniffed out" as not conservative enough are avoidable. Yes, you want red soc on your resume but no one is going to grill you on how well you attend events/what the three principles are, etc. Also, an applicant can to a certain extent drive the conversation to areas where you are "sufficiently conservative" even if you aren't across the board. For instance, you can bring up federalism, or national security, or police deference, or textualism, or separation of powers, or eminent domain law. Then that will be the topic for a bit.

But yeah, it's a bad idea to discuss the value of legislative history.

Eta: this is directed at people who agree with the fed soc position on some but not all issues. It doesn't apply to liberal students just trying to get a hiring edge.

WHOA! WHOA! WHOA! what are the three principles? I'm now very interested. Fed Soc has principles?

and "red soc[ks]" apparently!

[MKC]

it's a bad idea to discuss the value of legislative history.

What's there to discuss?

[wwwcol]

I'm clerking for a GOP appointed judge who has sent clerks to both liberal and conservative SCOTUS and I was asked no questions on the subject of any ideological issues. I don't think ideology will factor much in my experience.

I was asked in an interview for another GOP appointed judge who my favorite justice was. I know this judge did not like my answer. Needless to say, I did not receive an offer.

"GOP appointed" isn't a very meaningful category here.

This is a trap people regularly fall into, but you often cannot infer conservatism from the fact that Reagan or Bush I or [insert president] appointed a judge, especially at the district court level. Same is true of Democratic appointees. All sorts of political considerations influence the nomination process (e.g., a state's Senate representation). If you can't talk to former clerks or people who practice in front of a judge (which are the best ways to figure out a judge's ideology), you're probably better off looking at the academic studies that compile various factors into an ideological score.

[rpupkin]

I'm clerking for a GOP appointed judge who has sent clerks to both liberal and conservative SCOTUS and I was asked no questions on the subject of any ideological issues. I don't think ideology will factor much in my experience.

I was asked in an interview for another GOP appointed judge who my favorite justice was. I know this judge did not like my answer. Needless to say, I did not receive an offer.

"GOP appointed" isn't a very meaningful category here.

This is a trap people regularly fall into, but you often cannot infer conservatism from the fact that Reagan or Bush I or [insert president] appointed a judge, especially at the district court level.

Eh. It's less of a trap now than it was 30 or 40 years ago. As the judicial nomination/appointment process has become increasingly politicized over the last 20 years, we see fewer and fewer judges appointed--even at the district-court level--who stray from the liberal/conservative line of the Democratic/Republican parties. If a judge was appointed by GWB, there's a very good chance that the judge is relatively conservative. Likewise, if a judge was appointed by BHO, there's a very good chance that the judge is relatively liberal. There are exceptions, but those exceptions are getting rarer.

[Anonymous User]

My personal anecdote: the District Judge I clerk for thinks having ACS or FedSoc on an applicant's resume is a negative because it suggests strong political beliefs that may not be easily put aside.

(Yes, I know this is a questionable assumption, and plenty of non-ACS/FedSoc people are very political, but that's his take.)

[ndirish2010]

Does anyone else see the hypocrisy of conservatives screaming for all views to be heard (when a right-winger wants to make a speech) while at the same time screening for ideological purity in their group members and, it turns out, clerkship applicants?

Some conservative judges strongly prefer clerks who share their political and judicial philosophies; others don't. Same for liberal judges.

Seems to me like a safe space from ideas that might challenge their worldview.

In defense of this practice, the worldview-challenger role is generally supposed to be played by the advocates, other judges on the panel, and higher reviewing courts.

Not sure that is how I would run my chambers if I were a judge, but it seems to me that the judicial system will ensure that a judge's worldview is properly challenged without him having to maintain perfect ideological diversity among his personal staff (just like the political system allowed President Obama's worldview to be plenty challenged without requiring him to hire conservative white-house staffers).

Before I was a COA clerk, I used to say that I would hire a counter-clerk. Now, working in chambers, I think it would be counterproductive. FWIW, I clerk for a quite conservative judge, but I think my answer would be the same if I were a progressive in a progressive chambers.