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Surprise -- "Objective" Nature of Law Increasingly Less So

For those of us who studied "legal realism" back in law school, it's been interesting to watch the popular politicization of the judiciary at the same time politicians clamor disingenuously for a de-politicized judiciary.

The NYT explores this phenomenon further in a front-page piece on the political polarization of Supreme Court law clerks.

It's not pretty:

Each year, 36 young lawyers obtain the most coveted credential in American law: a Supreme Court clerkship. Clerking for a justice is a glittering capstone on a résumé that almost always includes outstanding grades at a top law school, service on a law review and a prestigious clerkship with a federal appeals court judge.
Justice Clarence Thomas apparently has one additional requirement. Without exception, the 84 clerks he has chosen over his two decades on the court all first trained with an appeals court judge appointed by a Republican president.

That unbroken ideological commitment is just the most extreme example of a recent and seldom examined form of political polarization on the Supreme Court. These days the more conservative justices are much more likely than were their predecessors to hire clerks who worked for judges appointed by Republicans. And the more liberal justices are more likely than in the past to hire from judges appointed by Democrats. 

 The article goes on to talk about "feeder" judges, appellate judges whose clerks are routinely picked to go on to the Supreme Court:

There is ideological polarization among the feeder judges just as there is in the larger population. Judge Garland of the District of Columbia Circuit, appointed by President Bill Clinton, has sent 21 clerks to nine justices in the Roberts court years, but 17 of them went to members of its liberal wing.

On the other hand, Judge Alex Kozinski of the Ninth Circuit, in San Francisco, appointed by President Ronald Reagan, sent 13 clerks to the court in those years, but only one to the court?s liberal wing.

In a 1998 interview published in The Green Bag, a law journal, Judge Kozinski, a generally conservative judge on a court with a reputation for liberal decisions, said he took account of ideology in hiring clerks, giving ?an extra measure of consideration to conservative and libertarian law students? in considering whom to hire.

Notably, no one from the 11th Circuit is mentioned.

This doesn't strike me as a healthy trend.  One would hope clerks will challenge their judges from time to time, be ideologically more open-minded and responsive to persuasive arguments regardless of ideological viewpoints, and be willing to be wrong every so often.  The last thing judges need is another echo chamber.

Or is that completely unrealistic?

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Full post as published by South Florida Lawyers on September 07, 2010 (boomark / email).