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Are politically moderate judges and law clerks better?

In his recent Green Bag article, discussed in Orin Kerr's post, Prof. David Garrow, one of the country's top Supreme Court scholars, laments the fact Supreme Court clerks increasing come from court of appeals clerkships with "exceptionally liberal or highly conservative" 'feeder' judges, rather than with "equally well-respected but ideologically moderate jurists."

The implication is that "ideologically moderate" clerks and justice are for some reason preferable to those who are "exceptionally liberal or highly conservative." Contra Garrow, I don't see any reason to believe this to be true.

One possible reason to prefer moderate clerks and judges is that they are more likely to reach correct decisions. This, however, is definitely not Garrow's argument. After all, Garrow's own views on the substantive constitutional law are far from being moderate, as one can see in his scholarly work on substantive legal doctrine; see, for example, his well-known book on judicial protection of abortion and sexual freedom. This is not a criticism of Garrow (my own views are no more moderate than his are), but it does close off the most obvious possible reason for favoring centrist judges and clerks. Indeed, Garrow's preference for centrist clerks seems, ironically, to be a preference against clerks who share his own strongly liberal political and legal views!

Instead of relying on the supposed correctness of their views, Garrow's preference for centrist clerks seems to be based on a belief that ideologically more extreme clerks (and possibly judges as well) are more likely to allow "disreputably partisan" considerations to influence their decisionmaking. If I interpret his argument correctly, Garrow is suggesting that committed liberals and conservatives are more likely to allow their policy views to influence their interpretation of the law than centrists.

I see little reason to believe this. Garrow's analysis implicitly conflates having moderate views with not having any ideological commitments at all. In reality, however, moderates do have political views and partisan loyalties, and these views and loyalties may be just as strongly held as those of liberals, conservatives, and libertarians. In cases where the strict adherence to the law leads to ideologically extreme results, moderates may well be tempted to follow their policy preferences instead of the law - just as conservatives and liberals might in cases where the law leads to results they dislike.

Indeed, in two important ways moderate jurists may be more prone to ideological judging than more extreme ones. First, moderate judges such as Justices O'Connor and Kennedy, are more likely to favor complex balancing tests than strong liberals and conservatives, who are more likely to favor bright line rules. Balancing tests tend to leave more scope for judicial discretion (and thus ideological decisionmaking) than rules do.

Second, I suspect that moderates are less likely than comparative extremists to realize that their political preferences are the products of a contestable ideology rather than of simple, nonideological "common sense." Indeed, Garrow's own article partially endorses this fallacy, to the extent that he assumes that moderate views are, by nature, less "ideological" than extreme ones. Of course, if you believe that your views are just common-sense truths that only extremist wingnuts/moonbats could disagree with, you are less likely to be hesitant about imposing them on others through the use of judicial power.

jota:
"Balancing tests tend to leave more scope for judicial discretion (and thus ideological decisionmaking) than rules do."

This in my mind is off the mark. It is bright-line rules that cabin trial court's discretion within the ambit of an idealogicaly-driven policy-goal or agenda. I.e., they leave no room to play with the facts. The pre-ordain decisions.

Unlike bright-line rules, balancing tests permit district courts to decide cases on their specific facts. And it is very difficult to argue, looking at however many district court deicions one cares to, and comparing them with the appellate courts reversals or affirmances, across the board, that district courts tend to decide cases idealogically. District judges are fact-finders, and when fact-finding, as opposed to examining a cold record far removed from the factfinder on the appellate leve, it is quite difficult to institute true idealogical agendas.

I don't mean this in a negative way, but Professor Somin's observation strikes me as one steeped in appellate, rather the trial court, experience, would make. From my experience, a district judge prefers balancing tests, even if she might sometimes complain about the lack of guidance, simply because when they get a dictate from on high that forecloses deciding a case on their facts, they are left holding the bag.
9.29.2006 4:46pm
Caliban Darklock (www):
I think a moderate is more likely to see the ideologically-motivated flaws in an extreme argument, without appearing as though he's knee-jerked an objection simply because you're on the other side.

Given a rabidly conservative opinion that happens to be very wrong, the conservative may not see that it's wrong simply because they agree with the conservative basis of the decision. A liberal, regardless of how rational his objection is, appears to object purely because he is a liberal and must oppose the conservative. But a moderate might be able to explain why the opinion is flawed, without being dismissed as a partisan shill by the opinion's conservative proponents.

Just my two cents.
9.29.2006 5:12pm
JosephSlater (mail):
I think Caliban D. has the right argument for one side of this debate. But I'm glad to hear Ilya finally say something I've often said: "moderates" can be passionate, ideological, locked into certain presumptions as well, and no less so just because they happen to believe strongly in things that, at the time, are in the middle of the political spectrum. Not to mention that the middle of the spectrum changes significantly over time.

Having said that, were I a conservative judge, I would want a liberal clerk, and vice-versa, just to make sure I could see the other side of the argument.
9.29.2006 5:20pm
mkl:
While ideologically moderate clerks and justices may not inherently be preferable to the exceptionally liberal or highly conservative, there is likewise no argument that they are inherently less suitable to the job. If current practices limit opportunity for the clerks of moderate judges, that does directly impair the prospects of clerks with moderate views and the quality of clerks available to moderate judges.
9.29.2006 6:17pm
Ilya Somin:
Unlike bright-line rules, balancing tests permit district courts to decide cases on their specific facts. And it is very difficult to argue, looking at however many district court deicions one cares to, and comparing them with the appellate courts reversals or affirmances, across the board, that district courts tend to decide cases idealogically. District judges are fact-finders, and when fact-finding, as opposed to examining a cold record far removed from the factfinder on the appellate leve, it is quite difficult to institute true idealogical agendas.

I disagree. There is no such thing as judicial decision-making based on "fact-finding" alone. You have to also have some way to determine what legal conclusion the facts dictate. If that mechanism is a bright-line rule, there is lrelatively little discretion for the judge (district or appellate) to manipulate the outcome to suit his or her ideological proclivities. With a balancing test, there is more room for play in the joints because the judge can 1) shade the factual findings to make the balance come out his preferred way, and 2) manipulate the relative weight given to the different factors in the test (few balancing tests provide clear guidance on what to do if Factor A cuts one way and Factor B counts another). I'm not saying that this happens in all or even most cases. But it is likely to be a greater danger with balancing tests tahn with bright-line rules. Indeed, I suspect that one reason why district judges often like balancing tests is precisely because they give them greater discretion.
9.29.2006 8:17pm
Ilya Somin:
I think a moderate is more likely to see the ideologically-motivated flaws in an extreme argument, without appearing as though he's knee-jerked an objection simply because you're on the other side.

I agree. But by the same token, a moderate is less likely to see "ideologically motivated flaws" in a moderate opinion. Prof. Garrow seems to assume that such flaws won't occur, but that assumption is based on what I think is a flawed premise: that moderates can't be "ideological."
9.29.2006 8:19pm
frankcross (mail):
I don't think the balancing test argument sells. The theory is that balancing tests allow more judicial discretion in subsequent cases, and that may or may not be true. If you assume it is true, there will be liberal and conservative decisions in those cases, per the ideology of the judge. So you might see decisions: R,L,R,L,R,L.

If a brightline test cabins this discretion, it only does so by imposing an ideological litmus test in the first case. Thus, it is no less ideological, but is inflexibly ideological, according to the ideology of the instantly deciding court. Perhaps producing decisions: R,R,R,R,R,R.

That is why the balancing test would be less ideological -- from the perspective of the deciding court it does not impose an ideology.
9.29.2006 8:39pm
Cecilius:
Balancing tests are more messy than bright-line rules, but if a truly partisan judge confronts a bright-line rule, then oftentimes they can find ways to explain (or simply decide with little to no explanation) why their case falls on whichever side of the line they prefer. So bright-line rules don't cabin leeway much if you draw an ideological judge, at least at the trial court level. Ideological or not, however, as a practicing lawyer I'd rather have the bright line rule so we know which claims, defenses, or appeals are truly worth pursuing. As a conservative, I've run into a few cases where the bright-line rule laid down by conservative judges didn't benefit my client, and I sometimes believed the rule was wrongly decided, but at least we knew to look for another avenue. If bright-line rules are a product of partisanship, then I can live with that regardless of whether or not I personally like the rules or whether or not they help my client. There's nothing more frustrating than pinning your case on an argument revolving around a 6-factored test with no one factor being more weighty than any others.
9.29.2006 9:33pm
jgshapiro (mail):

So bright-line rules don't cabin leeway much if you draw an ideological judge, at least at the trial court level.

But isn't it more obvious, with a bright line rule, that an ideological judge has fixed the result? That is the benefit of a bright line rule, even with exceptions to the rule.

When you decide a case on one side of the bright line that would appear to a reasonable observer to fall on the other side of the line (with or without creating a new exception to the rule), it immediately red-flags the case for appeal, or at least criticism.

Conversely, if you fix a balancing test to come out the way you want it, it is much harder to prove that you weren't simply weighting one factor more lightly than the observer would have, or weighting another factor more heavily.

Not to mention the fact that it is damn near impossible to advise a client ahead of time how to comply with a balancing test that will be applied after the fact. When he asks, "what happens if we do this?" I can only say, "that depends on the judge you get." So much for predictability in the law.
9.29.2006 9:52pm
frankcross (mail):
It's an interesting question worthy of study. Bright line rules might not have such an effect, because of the ability to distinguish them away with facts (about which judges sometimes lie). Moreover, the truly effective bright line rule would be something like: "Defendants always win." That one would be hard to evade. There's a tradeoff between notions of justice (or even lawfulness) and the controlling power of a decision.
9.29.2006 10:18pm
jota:
I respectfully disagree. My experience, when i was clerking at the district court level, was that my, and pretty much every other judge, on the court, tried their damnest to decide the case on theirfacts, irrespedctive of idealogy, while many, if not most, of our case were decide on politics. I dont post this as a bitter former district court clerk, because i also clerked on the appelate level. And my impression, today, as before, has always been, that appelate judges find ways to reach the issue they'd like to, from a policy perspective, while district judges, for the most part, decide cases on their facts. To me that says that its on the appelllate level is where you go if you'd like to influence policy, the disttrict level is where you go if you'd like to influence individual lives.
9.29.2006 11:10pm
frankcross (mail):
Well, we have research that illuminates this. District court judges show an ideological effect, but it is distinctly smaller than appellate court judges' ideological effect, which in turn is distinctly smaller than the ideological effect at the Supreme Court.
9.30.2006 12:02am
Dilan Esper (mail) (www):
I would probably prefer moderate clerks for a different reason. I am suspicious that 26 year olds with agendas will not do their jobs as well as 26 year olds who just want to get the cases right.

That's one of the troubling things about the Federalist Society (a group that I nonetheless think highly of because I like the fact that they foster a lot of debates and are open to hearing both sides of an argument). They obviously want to advance an agenda through the judiciary, and its network of clerks (who are recommended for jobs through the Federalist Society) are a part of that. I think its bad enough when judges are trying to push an agenda beyond the facts of the case. At least after awhile, such judges are going to gain enough respect for the system to tone that stuff down. 26 year old ideologues haven't learned that yet.
9.30.2006 1:46am
Ilya Somin:
I would probably prefer moderate clerks for a different reason. I am suspicious that 26 year olds with agendas will not do their jobs as well as 26 year olds who just want to get the cases right.

The difficulty with this point is the assumption that moderate clerks necessarily don't have an "agenda." A centrist ideologue is no less likely to have an agenda than a conservative or liberal one.
9.30.2006 1:55am
Dilan Esper (mail) (www):
Prof. Somin:

I doubt it. The "agendas" I speak of are things like the desire to bring back Lochner, the desire to outlaw the Death Penalty as cruel and unusual punishment, the desire to strike down large numbers of statutes as violating the Second Amendment, the desire to roll back the commerce clause, etc. I don't think there are comparable "moderate" agendas that would constitute attempts to revolutionize parts of the law.

I am not saying these agendas are bad-- indeed, I agree with some of them. But I think that someone who is committed to moving the law in radical ways is less likely to be a good clerk, because what you want in a clerk is someone who will identify what the applicable rules are and how they are fairly applied to the case. Not that an ideologue can never put aside the agenda and just do the work, but that obviously isn't what groups like the Federalist Society are thinking is going to happen when they invest so much effort into placing clerks.
9.30.2006 2:26am
T Worsham:
Isn't the most obvious objection to this argument that even ideologically extreme judges are not necessarily likely to choose clerks of their same political bent? I agree that certain jurists can be classified, in some sense, as conservative or liberal. I would think, however, that each person commenting on this post would know at least one, and probably multiple, counterexamples to the proposition that federal judges, including appellate judges, give preference in hiring to individuals conforming to their own political opinions.
I personally have liberal friends who have been taken on as clerks by the most conservative judges (and justices). So I just can't agree with the argument that there is some harm created by a feeder system of certain (so-called) conservative or liberal circuit judges prepping their clerks for Supreme Court work, because I don't think that the politics or ideology of appellate judges necessarily in any way correlates to that of their clerks.
What I do think is that those appellate judges who we percieve as most partisan, one way or another, are often just those judges who are (a) most noticable for the reasoning of their opinions; and (b) least likely, over time, to be promoted, thereby leaving them to toil in a certain type of infamy as a "feeder" judge.
So basically, I say that I appreciate the feeder judge system. It would be disingenuous of me to say that all federal judges are of equal ability. Accordingly, the clerks of certain federal judges are likely of greater ability than those clerks of other judges, and that discrepancy likely tracks over the years—so why not trust more those individuals who have already survived the vetting process of the most respected judges?
9.30.2006 3:46am
Ilya Somin:
I doubt it. The "agendas" I speak of are things like the desire to bring back Lochner, the desire to outlaw the Death Penalty as cruel and unusual punishment, the desire to strike down large numbers of statutes as violating the Second Amendment, the desire to roll back the commerce clause, etc. I don't think there are comparable "moderate" agendas that would constitute attempts to revolutionize parts of the law.

Yes, a moderate clerk may be less likely to want to change existing precedent - though that depends on the precedent in question. However, whether that's a good thing or not depends on whether the existing precedent is correct. If it's wrong, we should want it to be changed. At least in cases where the the court in question has the power to change precedent (as is certainly true of the Supreme Court, analyzed by Garrow), part of a good law clerk's job is to help his or her judge identify areas where current doctrine has gone wrong on the issues raised by a particular case.

If you think that the status quo on most issues is in fact correct, I can understand preferring moderate clerks. But that's basically the same thing as saying that moderate clerks are preferably because moderate results are preferable - a very different argument from that made by Garrow (who himself does NOT prefer moderate results on a wide range of issues).
9.30.2006 4:28am
JosephSlater (mail):
I'm again posting to agree with Ilya about the belief systems of moderates. Again, "moderate" is generally used to mean "more or less in the middle of whatever is currently considered left and right," and that does not necessarily mean "open-minded" or even "fair." Moderates often have very strong ideological commitments to what they believe in. There's not necessarily anything wrong with that, but we shouldn't pretend they don't.
9.30.2006 1:49pm
Caliban Darklock (www):
JosephSlater makes an interesting point.

I encourage a fallacy of equivocation pretty much every time I discuss moderates, because I don't actually think of "moderate" as existing on the continuum between "liberal" and "conservative" - I think of "moderate" as existing on the continuum between "obsessive" and "apathetic".

By implication, therefore, a liberal or conservative is too far on the obsessive side of the continuum to be moderate. However, by representing them as polar opposites, I also imply that the moderate lies between them... when I view the moderate as being more of a common root.

So when Joseph later opines that moderates may have strong ideological commitments, I immediately object to this idea, because to my mind the very essence of moderation is not to have strong ideological commitments. It is important to establish precisely what one means by "moderate".

Ilya observes, for example, that a moderate may be more likely to prefer the status quo. I don't believe this is true. I believe a CONSERVATIVE is likely to prefer that status quo simply because it is the status quo, while a liberal would oppose it for the same reason: simply because it is the status quo. The moderate, in my mind, would have no attachment to either the current state of affairs or the proposed change in them; he simply would not feel very strongly one way or the other, so he would be most likely to examine both with a less-biased eye. (Machiavelli said something once about changes in the order of things, which implies that no eye is unbiased.)
10.2.2006 5:24pm