A few days ago, I noticed a most interesting story in Above the Law, a news website about the law, law schools and the legal profession, link below:
Supreme Court Clerk Hiring Watch: A Closer Look At The Clerk Class Of October Term 2020
The article provides a report into the demographics of the October Term 2020 Supreme Court law clerk class. Normally, each of the nine Justices is assigned four law clerks each, with Retired Justices assigned one (but the ones assigned to a Retired Justice are always also assigned to work with the Chambers of a sitting Justice, so that they may gain the necessary legal experience while at the Court).
Virtually all of the Supreme Court law clerks come to the Court via lower court “feeder” judges, discussed in the article. Ideological alignment of feeder judges with Supreme Court Justices is usually a very important factor in the selection process. Conservative Justices have normally and uniformly drawn more law clerks from conservative feeder judges and liberal Justices have likewise drawn from liberal feeder judges.
Some conservative Justices prefer only law clerks from conservative feeder judges, without exception (and some liberal Justices likewise prefer only liberal feeder judges and their clerks) while others often like to hire one law clerk per Term from the opposite site of the ideological spectrum in order to have sort of a “devil’s advocate” on their team. Nevertheless, the hiring of a clerk from a liberal feeder judge by a conservative Justice is almost always very limited, and, in fact, most feeder judges themselves are notorious for being on the extremes of the judicial spectrum (please see more sources below).
www.nytimes.com/…
en.wikipedia.org/...
www.ncsc.org/…
This brings me to what I noticed in the Above the Law article a few days ago:
Chief Justice Roberts disappointed conservatives with a number of his votes in OT 2019, leading one court watcher I know to complain that JGR is now basically a moderate Democrat. And in terms of his clerk hiring practices, he looks like a moderate Democrat too ...
For OT 2020, the Chief’s four clerks served eight different lower-court judges. Of those eight judges, five were appointed by Democratic presidents, and three were appointed by Republican presidents. And looking ahead to OT 2021, his one hire so far clerked for two Democratic appointees.
So, out of 10 feeder judges for the clerks hired by Roberts for OT 2020 and OT 2021 so far, 70% are coming from liberal lower court feeder judges. This seems like an unusual pattern, to say the least … The author of this article does point out that there has indeed been more “across the aisle” law clerk hiring at the Court recently versus around 10 years ago … but Chief Justice Roberts’ recent hiring pattern still seems like a big “anomaly” to me.
And another interesting observation - among the feeder judges for Chief Justice Roberts are James Boasberg -twice (Obama-appointee), Vince Chhabria (Obama), Paul Watford (Obama), Sri Srinivasan (Obama), Robert Katzmann (Clinton), Jed Rakoff (Clinton) and Jeffrey Sutton (George W. Bush). I mention Sutton as he’s also on the feeder list for Justice Ruth Bader Ginsburg (as the “devil’s advocate” feeder I presume) … but guess who are some of the other feeder judges for RBG: Boasberg, Watford, Srinivasan, Katzmann and Rakoff ... a huge overlap with Roberts, imho!
Now, do I think that Chief Justice Roberts is becoming a “moderate Democrat”? No, he isn’t. But, is he still the same very conservative John Roberts as when he started as Chief Justice back in 2005. I say that he isn’t either.
Perhaps — and this is just my own personal theory — Donald Trump’s extremism has so alienated John Roberts as an individual and as a jurist that he has naturally drifted away from many conservative positions he has held in the past while hanging on to other conservative ideas and ideals. I think this has happened to many traditional conservatives as of late (you can certainly see the drifting of historically Republican suburbs away from the party in 2016 and 2018 election results).
Some “never-Trumpers” have become very anti-Trump while still considering themselves to be conservative Republicans, while others’ alienation from Trump has also expressed itself in a slow drifting away from what Trump and today’s Republican Party represent ideologically.
Many articles have been written recently re. this subject (some examples below). This is all food for thought … and a story that is still being written and unfolding.
www.nytimes.com/…
www.npr.org/…
www.cnn.com/…
www.newyorker.com/…
verdict.justia.com/...