Another Response to Geoffrey Stone

In his post below, Eugene K. responds to Geoffrey Stone’s latest reason why the conservative Justices are terrible, horrible, no good, very bad Justices. According to Stone, the conservatives are intellectually weak political hacks, with the evidence being the party affiliation of the President who nominated the circuit court judges that their clerks worked before before clerking on the Supremes this Term. Conservative Justices hired clerks who had worked for GOP-nominated circuit judges 90% of the time, while liberal Justices hired clerks who had worked for Dem-appointed circuit judges only 56% of the time. Thus the liberal Justices are open-minded and the conservatives are small-minded and ideologically driven.

Eugene K. points out some of the problems with Stone’s argument, but in my view he leaves out the most important flaw: Stone fails to consider supply and demand. As most readers know, liberal students heavily outnumber conservative students at the law schools that tend to generate the pool of circuit clerks. At the same time, the federal judiciary is roughly evenly divided between GOP and Dem appointed circuit judges. This creates an imbalance in law clerk hiring. Clerks often want to work for bosses with similar views, and the judges often feel the same way. But judges also want the best clerks. With the supply of conservative clerks relatively low, GOP-appointed circuit judges regularly hire liberal clerks, while Dem-appointed circuit judges only rarely hire conservative clerks. I think this explains the numbers Stone identifies. Justices who want to choose liberal clerks can choose clerks who worked for Democratic appointed circuit judges or Republican appointed circuit judges. On the other hand, Justices who want to choose conservative clerks will choose almost entirely from former clerks of GOP appointed circuit judges.

It’s unfortunately true that some conservative Justices tend to only hire clerks who they think are ideologically compatible. But the same is true with some liberal Justices. Consider Justice Ginsburg, for example. According to Stone’s hypothesis, Justice Ginsburg should regularly hire conservatives. But if you look at the list of Ginsburg clerks — click here and search for “Baxter” to view the list — a different picture emerges. Looking over th the list of 100 or so clerks, I’m not sure any are conservative. I spot one on the list who is libertarian — the VC’s own David Post, who had clerked for then-Judge Ginsburg on the DC Circuit and came back to clerk for her during her first year on the Supremes. But even David is hard to pigeonhole on a left/right political axis, and I’m not sure there any others on the list that count as conservative. Perhaps some are, and if so, that would be useful to know. But if the theory fails when you look at applications, it suggests there may be a problem with the theory.

On the bright side, I think Stone’s view is less offensive than his earlier argument that the conservative Justices are terrible, horrible, no good, very bad Justices because they are Papists who decide cases based on their faith instead of law. But the new argument, while less offensive, still strikes me as mistaken.