Are Feeder Judges Unusually Ideological? If So, Why?

In the latest issue of the Green Bag, David Garrow has a very interesting discussion of the ideological leanings of feeder judges and the impact they may have on the internal workings of the Supreme Court.  (Feeder judges, for those unfamiliar with the term, are lower court judges whose clerks often go on to clerk for the Supreme Court.)  Garrow notes that many feeder judges are considerably more ideological -- that is, less politically centrist -- than is typical for appellate judges.  Garrow writes:

[I]n recent decades virtually every [feeder judge] has been either exceptionally liberal or highly conservative and almost none have been politically difficult to pigeonhole.

For instance, the D.C. Circuit has long enjoyed an overall numerical advantage, but why is it that judges Silberman, Sentelle, and Williams, just like judges Bazelon, Wright and Mikva in earlier years, score far above equally well-respected but ideologically moderate jurists like Judith W. Rogers? Similarly, in a national context, why have judges Luttig and Kozinski topped the charts rather than say judges Michael Boudin, Pierre Leval, and the late Edward Becker? The explanation is not that the Fourth and Ninth Circuits have decidedly stronger reputations than the First, Second, or Third, nor that clerks to judges like Silberman are decidedly more able than clerks to a Boudin or Leval. If instead the real answer is simply that multiple justices have closer personal ties to judges like Luttig, Silberman and Kozinski than Rogers, Boudin, and Becker, then the justices have only themselves to blame for a "clerk force" whose political loyalties are far more partisan than was the case in earlier decades when clerks did not undergo the ideological socialization that they now receive during their appellate clerkships.

Garrow speculates that training by ideological feeder judges has created a more ideological Supreme Court.  The dynamic, Garrow suggests, is that feeder judges train law clerks to wage ideological battle.  Those clerks naturally take the same approach when they get to the Supreme Court:

Law clerks who come to the Supreme Court already socialized into a highly political and ideologically oriented view of appellate decision-making may not best serve either their justice or the Court. Instead they may be predisposed toward what Judge Posner rightly calls the "disreputably partisan" behavior so richly documented in case files from Justice Blackmun's latter years on the Court.

I suspect Garrow has an exagerrated sense of how much court of appeals judges influence their clerks.  Most appellate clerks have some pretty settled ideas about the law before they  start their clerkships.   At the same time, the ideology of feeder judges may be important because judges often prefer to hire clerks with views roughly similar to their own.  It seems plausible to say that if feeder judges are unusually ideological, on average they will probably tend to hire clerks that are pretty ideological; if feeder judges are more centrist, on average they will probably tend to hire clerks that are more centrist.  Exceptions exist, obviously, but this seems like a decent rule of thumb.

So are feeder judges more ideological than most?   That may be right, although the evidence is more mixed than Garrow lets on.   For example, Judge Kozinski doesn't fit well along the left-right axis; his libertarian leanings make him "conservative" in some areas and "liberal" in others. (I must know 20 or 30 Kozinski clerks, and on the whole they're pretty hard to pigeonhole politically.)  To the extent Garrow's point is right,  I suspect there are a bunch of possible expanations.  First, part of it is probably just a coincidence, the result of close personal connections between Justices and particular judges.  (For example, Judge Luttig clerked for Scalia and helped Thomas prepare for his confirmation hearings.) Second, Presidents looking to move the courts to their side have an incentive to put bright, young, connected, and politically predictable nominees on the circuit courts; those bright judges are more likely to become feeder judges.  Third, some Justices may want clerks with a particular set of views, as the Justices may have those views, too.   Finally, successful feeders are often natural lobbyists who try to "sell" their clerks to the Justices. Perhaps a rough correlation exists between perceived ideology and willingness to pursue the sale.

UPDATE: Garrow's piece is now online here, thanks to Howard Bashman.

Comments

[James]

Could there also be a signaling mechanism here? Imagine that certain circuit judges attract more and/or better applicants for clerkships. Those circuit judges can be more selective. Supreme Court justices will use the mere fact of clerkship for those judges as information about the quality of clerks.

This could be a kind of self-sustaining coordination game. Kozinski is better to work for because his clerks are more likely to clerk for the Supreme Court. His clerks are more likely to work for the Supreme Court because they are (on average) higher quality. They are higher quality because he's better to work for. Small initial differences become magnified and entrenched.

If this is what's going on, ideology could be the small initial difference that becomes magnified. One complementary possibility is that ideology correlates to future chances to be on the Supreme Court, and I'm guessing this helps attract more clerkship applicants ("I clerked for Justice ______ before his/her nomination").

[Orin Kerr]

James,

There's definitely a strong circularity to it: A judge who starts to feed becomes more desirable to applicants, and thus ends up with better credentialed clerks who are more likely to be feedable.

[Bruce Boyden]

Lock in!

That could explain why the feeders are more ideological too (assuming that to be true for the moment). Non-ideological judges draw from the pool of candidates for whom ideology is not important, plus some fraction of those for whom it is important, but not determinative. Ideological judges draw from the pool of candidates for whom ideology is not important, *and* those candidates who share their ideology (while losing the portion for whom ideology is important but not determinative and their ideology goes the other way). This small difference, ceteris paribus, may be enough of an edge.

[Garth Sullivan]

And of course as the Supreme Court itself seems ideologically driven, it would not be unusual for Justices to prefer hiring the clerks of like-minded judges who have already screened clerks for a like-minded ideology.

[Stuart Buck]

Interesting article and blog post.

I have to say that I'm a bit confused Sentelle as an example of a partisan feeder, while using Boudin and Leval as examples of moderates who don't feed as often. From 1989 to November 2005 [see http://www.law.umich.edu/currentstudents/careerservices/pdf/Appendixd.pdf ], both Boudin (16) and Leval (14) sent more clerks upstairs than Sentelle (12). And Harvie Wilkinson sent 27 in that period compared to Stephen Reinhardt's 9, but I'd be surprised if any lawyer in America thought that Wilkinson is more partisan than Reinhardt.

Also the overall implication that politically identifiable judges *create* more partisan clerks seems dubious to me. I've known plenty of Supreme Court clerks both from the time of law school and during clerkships. Some seemed partisan to some extent, but my best guess would be that they brought their partisanship to the clerkship, rather than the other way around. And my next guess would be that most clerkships -- even for so-called "partisan" judges -- can *moderate* a clerk's partisanship. That is, some people may come out of law school having focused their attention on highly politicized judicial decisions (abortion, affirmative action, whatever), but when they get into the nitty-gritty of a clerkship, they soon realize that there are hundreds of cases that come through their chambers each year where, no matter how sympathetic one side may be, the law or the facts are rather clearly on the other side. And there are many cases that have no substantial ideological or partisan implications in the first place. Indeed, I suspect that this is true to some extent even at the Supreme Court level, where about 30% of decisions are unanimous. In short, I'd bet that the effect of clerkships runs the other way around: Hot-headed young law students see their partisanship moderated by the effect of dealing with hundreds of non-partisan cases in which they see judges from all sides trying to do the right thing.

[Stuart Buck]

I somehow left a bit of text out of this sentence:

I have to say that I'm a bit confused that Garrow seems to use Sentelle as an example of a partisan feeder, while implying that Boudin and Leval are examples of moderates who don't feed as often.

[Alex]

The better question is why do we have the phenomenon of feeder judges? And whether it is a good thing that a very small percentage of the hundreds of circuit judges can send their clerks to the Supreme Court? If getting a Supreme Court clerkship is based largely in securing a circuit court clerkship with a specific judge that suggests that the Supreme Court, not unlike other employers, is simply being "lazy" in their hiring practices; the Justices are employing a short-cut to weed out "weaker" candidates. If the "right" circuit judge is based on personal friendships with certain Supreme Court Justices then we have a nice sort of "patronage" system in place. So really maybe nothing is that surprising. I also wonder if the general awareness of the "feeder" system discourages large swaths of clerks from even applying for a Supreme Court clerkship (of course further whittling down the number of prospective applicants and enthrenching the position of certain judges as feeders)

[Orin Kerr]

Alex,

Hiring for competitive positions often relies in part on proxies that are imperfect measures of ability. How is it different in this case than in most others?

[blackdoggerel]

Even before getting into normative conclusions, the data don't even come close to supporting Garrow's theory from an empirical standpoint. He states, "[I]n recent decades virtually every [feeder judge] has been either exceptionally liberal or highly conservative and almost none have been politically difficult to pigeonhole." But look at the U. Mich. statistics. Double-digit feeders have included Boudin, Calabresi, Edwards, Garland, Doug Ginsburg, Kozinski, Leval, Luttig, O'Scannlain, Posner, Sentelle, Silberman, Tatel, Wilkinson, and Williams. Of these, lawyers and academics in the know (vs. the general public) could only realistically label a few of them are "exceptionally" liberal or "highly" conservative. Sure, most of them lean one way or the other, and some are consistently one or the other. Most judges are like that. But it's a stretch to deem them outliers of one or the other ideology.

The real ideological outliers aren't feeders at all. Where are Judges Berzon, Paez, Kleinfeld, and Karen Williams? Why has Judge Reinhardt, in 30 years on the bench, only sent 9? Why has Edith Jones only sent 5? Why has Frank Easterbrook (much more solidly conservative than Judge Posner) only sent 3? Why has Karen Lecraft Henderson, who is much more reliably conservative than other members of the DC Circuit, only sent 1?

If you look at the list of double-digit feeder judges, the quality they share isn't ideological extremism: it's exceptional quality of judging. With one or two exceptions, there isn't a judge on that list who isn't recognized as one of the top judges in the last 10-20 years, "top" meaning possessing a brilliant legal mind, having extraordinary writing ability, and writing groundbreaking opinions that withstand close scrutiny. With respect, this simply can't be said of the non-feeder judges listed in the previous paragraph, or with some of the judges Garrow says "should" be feeders but aren't. (Easterbrook is hailed for his prowess as an academic, but his judging and opinions haven't received an equal level of praise.)

Top law students know who the exceptional judges are, and they gravitate to them. SC Justices know who the exceptional judges are, and they choose clerks from them, because the clerks are already top performers AND those clerks will have spent a year learning and interacting with some of the most brilliant legal minds in the federal judiciary. So it's not difficult to understand why certain judges are feeders, once you realize who the feeders are and the exceptional level of work they routinely put out. Extreme ideology seems to have little to nothing to do with it.

There are a lot of other holes to poke in Garrow's theory (including the normative conclusions he draws), but it's enough for now to point out that the empirical data just don't even come close to supporting his sweeping claims.

[Anon]

Blackdoggerel is right. No one who has the slightest familiarity with the D.C. Circuit (especially those who have attended oral arguments) would say that Judith Rogers is "equally well-respected" as Silberman or Sentelle or Williams. They're not in the same league.