Supreme Court Clerkships and "Feeder" Judges*

Article excerpt

Because law clerks are integral to the work of the Supreme Court, the selection of clerks is important. Observers of the Court have referred to "feeder judges," by which we mean court of appeals judges from whom justices draw large numbers of clerks. This article analyzes the feeder-judge phenomenon in the 1976-1985 and 1995-2004 terms of the Court. It verifies that justices do rely heavily on certain court of appeals judges as sources of clerks and that justices differ considerably in the sets of feeder judges from whom they draw clerks. It also shows that there is a strong ideological element to the use of feeder judges by individual justices and that this element has strengthened over time.

Law clerks play a prominent role in the work of the Supreme Court, a role that has long fascinated observers of the Court. This fascination is reflected in a large body of popular and scholarly writing on the clerks (e.g., Wilkinson, 1974; Lazarus, 1998; Peppers, 2006; Ward and Weiden, 2006). In the writing on the Court's law clerks, the primary issue has been the extent and form of their influence on the justices' work. But there has also been considerable interest in the clerks themselves - who they are and how they are chosen. The racial and gender composition of the law clerk corps became a public issue in the 1990s (Brown, 1996; Mauro, 1996, 1998), and the gender issue arose again several years later (Greenhouse, 2006).

One aspect of the selection process that has received widespread notice, though not yet close and systematic analysis, is the identities of the lower-court judges for whom Supreme Court clerks have worked. Over the past three decades, the standard practice for Supreme Court justices has been to choose their law clerks from those who have served (or are serving) in other courts, primarily the federal courts of appeals. The development of that practice apparently was spurred by the perceived benefits of clerkship experience (Peppers, 2006:31-32). The growing reliance on the courts of appeals as sources of law clerks is noteworthy in itself. In the 1976-1985 terms, among the Supreme Court clerks who had served in lower courts, 15 percent came from the district courts or (much less often) from state courts. In the 1995-2009 terms, that proportion dropped to 2 percent. (These data are drawn from our data set, described later in the article; see also Ward and Weiden, 2006:77.) With this change, the Court's clerks collectively have a narrower range of experience than in the past, and they may be a more insular group.

This reliance on the courts of appeals for law clerks raises the question of whether there are distinct patterns in the choices of judges from whom the justices draw their clerks. The justices might draw their clerks randomly from court of appeals judges, in the sense that the identity of the judge who employs a clerk has no impact on the clerk's chances of promotion to the Supreme Court. But random selection seems quite unlikely, because there are several reasons for justices to draw more clerks from some judges than from others.

First, there undoubtedly are systematic differences among judges in the traits of their law clerks - traits ranging from the law schools they attended to their level of competence. If justices seek clerks with traits that are also preferred by certain judges, they will draw clerks disproportionately from those judges even if they pay no attention to who those judges are.

Second, in reality justices are very likely to pay attention to judges' identities and use them as indicators of the qualities of candidates for clerkships. In the last several decades, justices (and those who assist them) have been faced with a large and growing pool of applicants. According to a 1994 report, more than one thousand people apply for clerkships each year (Biskupic, 1994), and applicants increasingly apply to all or nearly all the justices (Peppers, 2006:35; Ward and Weiden, 2006:58-59) . …