New Methods for Assessing Possible Nominees to the Supreme Court

To state the obvious, the Supreme Court is extremely important.  After years of Repubican Presidents not taking their picks carefully or seriously enough, Republicans appear to have finally have come to appreciate how important not making a mistake is.

One of the key questions is not only what the nominee’s views are, but what those views will be in the future.  Republicans have seen their appointees drift over the years – “grow in office” – in large part because the dominant legal culture is so hostile to conservative and libertarian views.  In a world where not having a clear paper trail (especially if it might be deemed extreme) is still considered to be important, getting reliable information on a prospective nominee’s views is essential.

There is an element of an arm’s race here between possible appointees and presidents.  Possible appointees, especially in the various appellate courts, have an incentive to run for office.  As circumstances have changed, they understand that being appointed to the court by a Republican requires voicing conservative/libertarian views and making connections with influential Republican politicians.  These voiced views and connections, however, do not mean that the person actually holds those views or holds them strongly.  How can presidents find out?

To determine their views, presidents can look more closely into their paper trail and their associations.  One relatively obvious place to look is who they hire for clerks.  Are their clerks conservative/libertarian or liberal?  Apparently, there is a strong association between the views of a judge and the views of his or her law clerks.  To determine the views of the judge’s clerks, a new study has looked to the campaign contributions of those clerks.  Leave no stone unturned.

And in this case, the results are quite interesting.  The article reviews the campaign contributions of 11 possible nominees.  In each case but one, a majority of the donations by the clerks were to Republican candidates for President (except the clerks for Thomas Hardiman, which were equally divided).  But for Judge Diane Sykes, the donations are quite different: 11 donations went to Hillary Clinton and 1 donation went to Mitt Romney.  As compared to the other judges’ clerks, this really stands out.

I don’t have a position on how this information should be evaluated.  I don’t know all that much about Judge Sykes and I have no idea as to whether her selection of clerks reflects her legal or political views.  Perhaps she just believes that clerks should be selected without respect to political viewpoint.  Perhaps she uses clerks in a limited way, so that their views matter less.  Or perhaps she is more open minded than the other judges.

But, given the stakes involved, a prudent administration would certainly take all of the information into account.  Of course, some information is more relevant than others.  According to this piece by David Lat, citing to a piece by Lee Epstein, Andrew D. Martin, and Kevin Quinn, Judge Sykes’s decisions are very conservative – more conservative than the decisions of Sam Alito and William Pryor.  Decisions seem more important than the candidates to whom your clerks donated.  Of course, if I were selecting judges, I would want to be reading decisions rather than simply accepting the coding of political scientists, which despite their contributions, look at things differently than do law professors.

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review. His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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Comments

  1. Anonymous says

    Hmm. The problem with the statistics from the Empirical SCOTUS report is that it’s not clear whether the clerk “Number of Records” actually refers to the number of individual clerks or the number of donations. Clinton had a monthly donation program this election.

  2. Andrew says

    Feldman’s first table listing clerks’ contributions uses total numbers of contributions so there are duplicated individuals in that table. But there are multiple former-Sykes-clerks who donated to Clinton (though one clerk did dominated that trend). The de-duplicated individual clerk analysis is in the second table focusing on ideology. That second table shows that, among the major contenders for the vacancy, Sykes is the most liberal according to the non-dupe clerk data.

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