Political Donations Indicate That Federal Court Clerks Skew Left

Republicans refused to hold hearings on President Obama’s pick for the Supreme Court, Merrick Garland, and now Democrats are threatening to do the same for President Trump’s nominee, Neil Gorsuch. This gridlock is just one example of how all three branches of the U.S. federal government have become politicized. But what if evidence demonstrates that political bias existed in the judicial branch long before the current era of polarization?

Prior research has documented polarization among judges. However, “The Political Ideologies of Law Clerks and Their Judges,” a recent study from the University of Chicago Law School, suggests that such politicization may extend to court clerks. Using a combination of data from the Federal Election Commission, the Supreme Court Information Office, and a dataset compiled in 2010, the researchers analyze the political donations of court clerks from across the federal judicial system since 1960. Through cross-referencing the data, they match the identity and ideology of 7,969 clerks. The data is particularly relevant as over 40 percent of U.S. lawyers make political contributions (as opposed to five percent of the general population), which the authors find is closely correlated with where clerks receive their law degrees.

Utilizing an ideological measure based on political contributions called CFscores, the researchers place individuals on a scale from -2 to +2, the former being extremely liberal and the latter being extremely conservative. For reference, Barack Obama scores a -1.65, Hillary Clinton a -1.16, Chris Christie a 0.46 and Scott Walker a 1.28. The authors recognize that CFscores are limited as some individuals may donate strategically and others may not donate at all; however, the measure has been shown to correlate strongly with other measures of court bias, where such data is available.

The authors find that 75 percent of clerks score below zero, meaning they are disproportionately liberal. Even though the distribution of the data is bimodal, which indicates that there are a significant number of conservative clerks, the mean ideology of a clerk is about the same as Bill Clinton (-0.68).

Additional analysis reveals that female clerks are more liberal on average than their male counterparts. Furthermore, circuit court clerks are more liberal than their district court peers, who in turn are more liberal than Supreme Court clerks. On the one hand, it is unclear whether students attend law schools that agree with them politically, or if students are shaped by those law schools, or both. On the other hand, clerks correlate closely with the average ideological scores of other lawyers who go to the same schools, and the clerks from the top 14 law schools (at which a majority of clerks study) are on average more liberal than clerks from the aggregate of all other law schools.

The researchers investigated further by analyzing datasets on the ideologies of the judges who hired these clerks.  They find that despite the judges’ ideologies ranking much more balanced than those of the clerks (with a similar bimodal distribution indicating fewer moderates than liberals or conservatives), on average, judges—liberal and conservative alike—tend to hire clerks who are more liberal than they are.

The research comes with a number of caveats. For example, the data is inconclusive as to whether conservative judges have much choice when it comes to picking conservative clerks. This is because Supreme Court and appellate court judges prefer to pick newly minted lawyers from a handful of elite law schools that may leave them with fewer conservative choices. Other issues concern strategic contributions as well as reasons why fewer conservatives may choose to make political donations.
Overall, the research only addresses potential ideological biases, not causal effects on judgments. More work needs to be done to ascertain what impact clerks’ ideologies may have on case decisions.

Article source: Bonica, Adam, Adam Chilton, Jacob Goldin, Kyle Rozema, and Maya Sen. “The Political Ideologies of Law Clerks and their Judges.” Coase-Sandor Working Paper Series in Law and Economics (2016): 1-75.

Featured photo: cc/(mj0007, photo ID: 613040560, from iStock by Getty Images)