Supreme Court Clerk Influence
Yesterday, Cassandra and I were discussing offline the role of clerks in influencing outcomes with respect to Supreme Court opinions.
Sure enough (as so often happens), today I saw an interesting post on SCOTUSBlog by Prof. David Stras which references another statistics-laden academic law paper which tries to quantify the effects of clerk party affiliation on opinion outcomes. I'll leave it to you to read the post and the paper if you're interested. Briefly, the paper, while not without shortcomings, indicates that clerk party affiliation does appear to have a statistically significant effect on opinions.
3 comments:
I ask why one would not expect such an outcome? Legal scholars are no different than everyone else, they have opinions and those opinions will clearly color their interpretation of a given situation. That should be particularly so if they actually care personally about a given topic. This should only confirm the point that though insulated from politics, the judiciary is by no means an ivory tower of interpretation. If we accept that premise then it becomes clear as to why, in the face of both liberal and conservative forms of judical activism the bench has been politicized. Barring a a dramatic reduction in appointment tenure, this points to is the importance of either political party controlling both the Presidency and the Senate to ensure that the philosophy represented by said party will live on beyond the tenure of the party's grip on executive and legislative power. With that the question becomes should a party that controls both the Presidency and the Senate be stopped at every turn by the minority or should the minority bow to the present will of the majority even in the face of long lasting consequences? I generally feel they should bow with the expectation that they will get their turn to suck at the propetual tit of judical excess.
Wow - nice phrase Hector: "propetual tit of judicial excess." I am one of those who are always entertained by the after that fact handwringing of Senators once their preferred appointee hits the bench. (Most recently I'm thinking of Souter, but of course Warren.)It should be very clear that no matter what the expectations are, it's very hard to predict how a justice will vote over the course of their career. I completely agree that like the other two branches of government, the Supreme Court has political capital it collects and spends.
I think what gets legal scholars all atwitter is that 1. they don't have enough to do, so 2. they try to parse the smallest clue as to how the court works so that 3. they can look good if they predict a trend correctly. And for them the S.Ct. has to be a continual frustration: we know relatively little about how decisions are made, though Roberts has made clear he is interested in very narrow decisions which result in the most unanimous opinions (perhaps a clue as to why the court's docket continues to shrink).
The roles of the clerks will always be a source of amusement, mystery and blame because we know so little and because of the rather amazing turnaround of some judges who are elevated to justices. I for one am very happy the court sees itself politically - not by party but as a political institution which needs to protect its own power. To me that means that I have a branch of government that nicely blends tradition with an understanding of the popular mood.
As a more liberal person, I'm much more concerned with lower court appointees, and DOJ employees, than either clerks or S.Ct. nominees. These folks can leave lasting political party footprints, in areas where I would hope the only requirement in the job description is an understanding of the law.
I would second Cassandra's comments, expecially with regards to her concern over lower level appointments.
I believe all actors in this "system" should act in their perceived best interests, including Senate minorities, as it's this push and pull which ultimately produces the most acceptable Judges/Justices.
Unlike Hector, I don't think the Courts are best served by having two constellations of Judges/Justices who cluster around ideological extreme polls. Rather, through each actor in the judicial nomination and confirmation process exercising their substantative and procedural rights to the fullest, it maximizes the chances that "consensus" nominees ultimately accend to the Courts. Furthermore, such "consensus" Judges/Justices will be the most fierce defenders of the Courts as an institution because they will feel least indebted to the other branches.
As to the question of clerks, I'm not sure anyone is expressing surprise as to their influence as much as merely trying to find a way to quantify their impact. I think an argument could be made (though might be difficut to prove) that clerks could be expected to be more ideological than the Judges/Justices they serve because their service as clerks is finite. I could see them getting career millage down the road by being able to point to havaing played a role in decisions which have particular relevance in the ideology wars.
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