The politics of SCOTUS clerking

Looks like my guide on how to become a clerk on the U.S. Supreme Court is now at least a two-part series. In Part One, I told you the importance of coming from a top-10 law school. Today’s lesson: have the right (or left) ideology.

The New York Times reported this week that all 84 of Justice Clarence Thomas‘ clerks “have first clerked for an appeals court judge appointed by a Republican president.”

Thomas explained his reasoning a decade ago, according to The Times: “I won’t hire clerks who have profound disagreements with me. It’s like trying to train a pig. It wastes your time, and it aggravates the pig.”

Thomas is the extreme example of a growing partisan trend in clerk picking on the Roberts court, with the conservative justices almost exclusively following Thomas’ example while liberal justices largely pick clerks who served for appeals court judges appointed by Democratic president. Justice Stephen Breyer is the only member of the court who comes close to picking an equal number of clerks from both sides.

The Times also reports this doozy: More than half of the clerks who have served on the Roberts court came from the chambers of just 10 judges. Three judges accounted for a fifth of all Supreme Court clerks. So if you clerk for Judge Merrick B. Garland in D.C. or Judge Alex Kozinski on the 9th Circuit, you’re in luck!

A 2008 study found that clerks that identified themselves as Democrats increased the chances of a liberal vote by their judge in the same manner as a Republican clerk/conservative justice combination.

New Justice Elana Kagan‘s clerks for her first term, incidentally, show another popular trend – clerks who clerked for other justices. Kagan took former clerks of Justices Ruth Bader Ginsburg, Breyer and Anthony M. Kennedy.

Mimicking the Maryland model

Can the Maryland Judiciary serve as a useful model for the U.S. Supreme Court?

Sen. Patrick J. Leahy, D-Vt., seems to think so.

Leahy, who chairs the Senate Judiciary Committee, has said he might introduce legislation to enable retired justices to sit in on cases when a current justice has recused himself or herself. Sound familiar?

In Maryland, retired judges regularly sit in by special assignment for their recused brethren and sistren without much complaint from the bench or bar. If, say, Court of Appeals Judge Sally D. Adkins must recuse herself, the high court can turn to retired Judge John C. Eldridge to take her place, thus preserving its full complement of seven judges to hear the case.

Similarly, Leahy’s yet-to-be-introduced proposal would enable the Supreme Court to field its full complement of nine justices in the dozen pending cases in which new Justice Elena Kagan has said she will not participate. Kagan said she must recuse herself because she worked on those cases in the lower courts in her last job as U.S. solicitor general.

To pinch-sit for Kagan, the Supreme Court could turn to its retirees, Sandra Day O’Connor, David H. Souter and John Paul Stevens, under the Leahy plan.

“If there  is a way for retired justices to help the court fulfill its role in our democracy, I think we should consider it,” the senator told The Washington Post.

But there is perhaps a strong argument for preserving the status quo with regard to the Supreme Court and its Maryland counterpart.

O’Connor, Souter and Stevens held lifetime appointments to the bench. Thus, they voluntarily doffed their robes by retiring and, arguably, should not be permitted to don them on a part-time basis.

In Maryland, by contrast, most judges do not retire voluntarily so much as have retirement thrust upon them by the state constitution after reaching age 70. The least the state can do after sending these judges fishing is to reel them back in on occasion, the argument goes.

What do you think of the Leahy plan?

Law blog round-up

Happy Monday! In this, my first law blog round-up, I thought I might attend to some personal business. The question I’ve been asked most since moving over to the business-of-law beat from covering a whole slew of things on the business desk is: Are you related to Lou Ulman? The answer: No.

Here are your Monday law links to start the week off on the right foot.