Legacy Issues
Amongst a president’s most enduring legacies are the federal judges they appoint—notably Supreme Court docket justices. This permanence stems from life tenure, a constitutional provision that ensures judicial independence but in addition transforms every appointment right into a generational wager on the nation’s authorized future.
But historical past is suffering from presidential miscalculations. President Eisenhower famously referred to as his appointment of Earl Warren to Chief Justice considered one of his “biggest mistakes,” as Warren grew to become a liberal stalwart for over a decade. Justices Stevens and Souter, each nominated by Republican presidents, developed into among the Court docket’s most liberal members. Had Republican presidents persistently put in reliably conservative justices because the mid-Twentieth century, the Court docket would have been exponentially extra conservative than it truly was.
However presidential legacy is barely a part of the story. The judges themselves have developed their very own succession methods. Lately, a putting sample has emerged: Supreme Court docket justices now seem able to retire solely with tacit—or maybe express—assurances that they are going to be changed by somebody they helped form, usually a former clerk. Since Justice Kennedy retired after the 2017 time period, this has develop into the norm slightly than the exception.
Kennedy’s retirement exemplified this new dynamic. He secured not one however two former clerks in succession: Justice Gorsuch crammed Justice Scalia’s seat, which had remained vacant longer than any in Court docket historical past, and Kennedy’s personal seat went to Justice Kavanaugh. These consecutive Kennedy-clerk appointments represented a carefully orchestrated transition, a carrot from President Trump to persuade Kennedy to step down together with his legacy intact. For Trump, the cut price was equally advantageous: he might set up extra persistently conservative justices than Kennedy, who had often sided with liberals on consequential civil liberties instances just like the same-sex marriage choice in Obergefell v. Hodges.
The sample continued with Justice Barrett, a Scalia clerk, changing Justice Ginsburg after her loss of life, and Justice Ketanji Brown Jackson, a Breyer clerk, succeeding her former mentor. Primarily based on this rising template, I previously wrote about how I anticipate that President Trump would possibly appoint Decide Ho or Decide Rao—each Thomas clerks—to fill Justice Thomas’s seat, and Decide Oldham, an Alito clerk, to succeed Justice Alito ought to both retire throughout Trump’s tenure.
This sample of legacy-based selections augments the speculation of strategic retirement, the place federal judges retire underneath likeminded presidents to make sure the stability of every court docket doesn’t shift within the opposing ideological route. I wrote about the possibility of this occurring and the way the consequence of Justice Barrett probably filling this seat previous to Justice Ginsburg’s loss of life. Many others additionally contemporaneously, previously, and after me wrote in regards to the potential and precise downstream results of Justice Ginsburg’s choice.
On the backside of all of it, this highlights the significance of federal judgeships, not solely the president, however extra importantly to future generations and to the embedding of explicit values and preferences inside the federal judiciary for many years to return.
Penalties and Methodology
The significance of federal decide replacements reaches past presidential legacy. This evaluation examines which present and former federal judges have positioned probably the most former clerks on the federal bench, utilizing information from the Biographical Listing of Federal Judges maintained by the Federal Judicial Heart.
Constructing on earlier evaluation of federal judges appointed from Reagan by the present Trump administration, this examination focuses particularly on judicial legacy by clerk placement. After correcting for inconsistencies in how the Biographical Listing formatted clerkship entries (First Liberty’s Hiram Sasser famous in a remark among the lacking entries in a previous post which I now corrected and made freely accessible), the info reveals a transparent hierarchy of affect throughout district, appeals, and Supreme Court docket ranges.
Presidential Appointments: The Basis of Judicial Legacy
If presidents’ legacies are sure to their judicial appointments—particularly Supreme Court docket justices—then the variety of justices every president installs turns into a significant measure of lasting affect. Whereas not each appointment produces the jurisprudence a president envisions, every represents an try to implant their imaginative and prescient of constitutional interpretation.
Amongst Twentieth and Twenty first-century presidents, Franklin D. Roosevelt stands because the overwhelming chief, appointing 9 Supreme Court docket justices throughout his unprecedented 4 phrases. Taft follows with six appointments, whereas Eisenhower made 5. More moderen presidents present markedly fewer alternatives though Trump with three in his first time period was a transparent outlier.
These numbers mirror not simply presidential priorities however the vagaries of timing—how lengthy justices serve, once they select to retire, and the unpredictability of loss of life. Roosevelt’s 9 appointments got here throughout the constitutional disaster of the New Deal, whereas current presidents have confronted a Court docket the place justices more and more time their retirements strategically, typically ready for a president of their most well-liked ideology.
Supreme Court docket: The place Judicial Dynasties Start
The downstream results of Supreme Court docket clerkships can reshape American regulation throughout generations. Contemplate the lineage from Justice Robert Jackson to William Rehnquist, who clerked for Jackson, to John Roberts, who clerked for Rehnquist and now serves as Chief Justice. This chain of affect spans greater than half a century, with every technology of jurists passing their interpretive strategies to the subsequent.
Supreme Court docket clerkships symbolize a comparatively trendy phenomenon, rising primarily because the Court docket developed by the Twentieth century. The variety of clerks per justice has steadily elevated, increasing the pool of potential judicial heirs. The info reveals which justices have been most profitable at inserting their clerks all through the federal judiciary.
Justice Clarence Thomas leads by a considerable margin, with twelve former clerks now serving as federal judges—a testomony each to his lengthy tenure and his deliberate cultivation of conservative judicial expertise. Justice Anthony Kennedy follows with ten clerk-judges, together with the 2 Supreme Court docket justices talked about earlier. Justice Rehnquist positioned eight former clerks, persevering with his affect even after his 2005 loss of life.
Justices O’Connor and Ginsburg every depend six former clerks within the federal judiciary, whereas Justice Stevens additionally positioned six. Justice Alito has 4 clerk-judges, whereas Justices Breyer and Souter every have three. Maybe most surprisingly, given his place as Chief Justice, John Roberts has not but seen a former clerk develop into a federal decide in response to Federal Judicial Heart information.
Originalism Throughout Generations: Scalia to Barrett
The transmission of judicial philosophy from justice to clerk-turned-justice reveals itself most clearly in interpretive methodology. Justice Scalia’s originalist method in McDonald v. Metropolis of Chicago exemplified his dedication to understanding constitutional provisions by their historic that means. Writing in regards to the Second Modification’s software to the states, Scalia emphasised the settled understanding that the Invoice of Rights initially constrained solely the federal authorities. His opinion methodically traced the historic file, citing Chief Justice Marshall’s 1833 opinion in Barron v. Baltimore and noting that the query was “of nice significance” however “not of a lot issue.” Scalia’s evaluation embodied his conviction that constitutional interpretation should start with unique public that means, no matter whether or not that that means comports with trendy sensibilities.
Justice Barrett, who clerked for Scalia, has inherited this originalist framework however applies it with a notably completely different rhetorical fashion and, at instances, completely different conclusions. In Haaland v. Brackeen, her majority opinion defending the Indian Youngster Welfare Act demonstrated each continuity and evolution in originalist methodology. When petitioners challenged ICWA by arguing it was inconsistent with the Structure’s unique that means, Barrett’s response revealed a extra institutionally cautious method than her mentor may need taken. She wrote that petitioners “supply no account of how their argument matches inside the panorama of our case regulation” and famous they “neither ask us to overrule the precedent they criticize nor attempt to reconcile their method with it.”
This represents a refined however vital shift from Scalia’s extra aggressive originalism. The place Scalia typically championed overturning precedents he seen as wrongly determined, Barrett demanded that litigants reckon with present doctrine and clarify the broader implications of their originalist claims. Her query—”Wouldn’t it undermine established instances and statutes? In that case, which of them?”—displays an originalism tempered by considerations about authorized stability and institutional legitimacy. The clerk has inherited the mentor’s interpretive framework however tailored it to a Court docket more and more aware of its public standing.
Courts of Appeals: The Proving Floor
Circuit judges occupy a novel place within the federal judiciary. Whereas they lack the Supreme Court docket’s final authority, they successfully have the ultimate phrase within the overwhelming majority of federal instances. Their opinions form complete areas of regulation inside their circuits, making them highly effective vectors for transmitting judicial philosophy. The info on circuit judges with three or extra former clerks now serving as federal judges reveals who has been only at extending their affect.
Decide David B. Sentelle of the D.C. Circuit leads all circuit judges with seven former clerks within the federal judiciary—a unprecedented file that displays each his lengthy service and his position in shaping conservative authorized thought. Decide Henry J. Pleasant of the Second Circuit and Decide William H. Pryor of the Eleventh Circuit comply with with six clerk-judges every. A number of different distinguished circuit judges, together with J. Harvie Wilkinson III, J. Clifford Wallace, and Brett Kavanaugh (earlier than his Supreme Court docket appointment), have positioned 5 former clerks.
The focus on the high of this listing is putting. Whereas thirty-five circuit judges have positioned a minimum of three former clerks, the hole between Sentelle’s seven and the subsequent tier displays his explicit success at cultivating judicial expertise. Many of those judges served or proceed to serve on influential circuits—the D.C., Fourth, and Ninth Circuits seem steadily—the place high-profile instances and proximity to political energy create pure pipelines to future judicial appointments.
The Textualist Thread: Sentelle to Gorsuch
The connection between Decide Sentelle and Justice Gorsuch illuminates how circuit court docket judges transmit interpretive approaches that later seem in Supreme Court docket jurisprudence. In NLRB v. Canning, Decide Sentelle’s opinion for the D.C. Circuit panel exemplified his textualist methodology. Decoding the Recess Appointments Clause, Sentelle targeted on the plain that means of “occur,” construing it to imply “come up” and emphasizing textual consistency throughout constitutional provisions. He wrote that “inconsistency [within the Constitution] is to be implied solely the place the context clearly requires it,” citing a 1949 precedent. For Sentelle, the clause’s textual content demanded {that a} qualifying emptiness should have “come to go or arisen ‘throughout the Recess’”—a studying he discovered in line with the Senate Vacancies Clause whereas the Board’s interpretation was not.
Justice Gorsuch’s method in Bostock v. Clayton County echoes his former mentor’s dedication to textual content over anticipated purposes. Writing for the Court docket within the landmark Title VII case, Gorsuch rejected the employers’ argument that Congress couldn’t have meant the statute to cowl sexual orientation and gender identification discrimination. He acknowledged the employers “take pains to sofa their argument when it comes to looking for to honor the statute’s ‘anticipated purposes’ slightly than vindicate its ‘legislative intent,’” however insisted “the ideas are carefully associated.” Gorsuch’s retort—”Nonetheless framed, the employer’s logic impermissibly seeks to displace the plain that means of the regulation in favor of one thing mendacity past it”—might have been written by Sentelle himself.
But Gorsuch’s opinion in Bostock additionally reveals how judicial philosophy evolves throughout generations. Whereas Sentelle’s textualism in Canning served conservative ends (limiting govt energy underneath a Democratic president), Gorsuch’s textualism in Bostock produced a liberal end result that many conservatives opposed. Each judges prioritized textual content over anticipated purposes, however Gorsuch demonstrated a willingness to comply with the textual content even when it led someplace his mentor’s ideological allies discovered uncomfortable. The methodology stays constant; the outcomes can shock.
District Courts: Constructing From the Floor Up
District court docket judges deal with the huge bulk of federal litigation, conducting trials, managing discovery, and making the factual findings that appellate courts later overview. Whereas particular person district judges might lack the precedential authority of their appellate colleagues, collectively they form how federal regulation operates on the bottom. The judges who’ve positioned a number of former clerks on the federal bench symbolize an often-overlooked tier of judicial affect.
The info reveals a extra dispersed sample than on the circuit or Supreme Court docket ranges. Decide Michael B. Mukasey of the Southern District of New York leads with 4 former clerks within the federal judiciary—a formidable determine provided that district judges usually have fewer clerks and fewer identify recognition than their appellate counterparts. Decide James C. Cacheris of the Jap District of Virginia follows with three clerk-judges, whereas quite a few different district judges have positioned two former clerks.
The geographic focus is notable. Many judges on this listing served in high-profile districts—the Southern District of New York, the Jap District of Virginia, and the District of Columbia—the place difficult instances and visibility create alternatives for clerks to tell apart themselves. Judges in these districts typically deal with nationwide safety instances, advanced white-collar prosecutions, and politically delicate litigation, offering clerks with expertise that later recommends them for judicial appointments.
First Modification Doctrine: From Mukasey to Pan
The judicial lineage from Decide Mukasey to Decide Patricia Millett Pan of the D.C. Circuit demonstrates how district court docket approaches to constitutional doctrine can affect appellate jurisprudence. In Nonnenmann v. Metropolis of New York, Decide Mukasey granted abstract judgment on First Modification claims with a terse evaluation that exemplified his pragmatic method. He concluded that the plaintiff’s speech “didn’t deal with a constitutionally protected concern of public concern,” disposing of the declare in a single sentence inside a broader opinion rejecting a number of theories of legal responsibility. Mukasey’s remedy mirrored the district court docket’s position: apply established doctrine effectively, handle advanced dockets, and transfer instances towards decision.
Decide Pan’s opinion in Ateba v. Leavitt reveals a extra elaborate First Modification framework, although one which reaches a equally government-friendly conclusion. The case concerned a journalist’s problem to the White Home laborious go coverage. Pan acknowledged the First Modification considerations however utilized the established reasonableness customary, concluding that conditioning fuller entry on Senate Every day Press Gallery accreditation was “each cheap and viewpoint impartial.” Her evaluation engaged extra deeply with the constitutional doctrine, addressing arguments about unbridled discretion and procedural protections whereas in the end deferring to the federal government’s entry coverage. A lot of the distinction in depth of research might relate to the targets and extent of constitutional interpretation of district court docket versus appeals court docket decide.
The comparability reveals each continuity and evolution. Each judges utilized First Modification doctrine to uphold authorities restrictions, and each wrote with relative brevity. But Pan’s opinion exhibits the extra elaborate reasoning anticipated on the appellate degree, participating with constitutional requirements and potential objections whereas Mukasey’s district court docket opinion moved rapidly to disposition. The scholar has realized to elaborate on the framework whereas reaching conclusions that seemingly would fulfill her mentor.
Implications: The Self-Replicating Judiciary
These patterns of clerk succession level towards a basic transformation in how the federal judiciary perpetuates itself. What started as an off-the-cuff desire for continuity has developed into one thing approaching a self-replicating system, the place judicial philosophies go from one technology to the subsequent by rigorously cultivated mentor-clerk relationships. The implications prolong far past particular person careers and even the ideological stability of explicit courts.
First, the clerk pipeline is creating unprecedented ideological coherence inside judicial camps. When Justice Scalia’s originalism passes to Justice Barrett, or Decide Sentelle’s textualism seems in Justice Gorsuch’s opinions, or Decide Mukasey’s First Modification skepticism echoes in Decide Pan’s rulings, we see not simply particular person judges however faculties of thought reproducing themselves throughout ranges of the federal judiciary. This coherence will increase predictability—most likely a great factor for the rule of regulation—but in addition reduces the sort of artistic pressure that traditionally produced judicial evolution.
Second, the emphasis on clerk credentials could also be narrowing the range of judicial backgrounds and experiences. When Supreme Court docket seats more and more go to former clerks of earlier justices, and circuit judgeships comply with comparable patterns, the federal judiciary dangers changing into a closed system that prizes insider credentials over different types of distinction. A lawyer who constructed a profitable trial follow, or led a civil rights group, or served as a state decide might discover themselves deprived in comparison with somebody who clerked for the appropriate justice on the proper time.
Third, strategic retirement is more likely to develop into much more entrenched as justices and judges see their former clerks efficiently ascend to increased courts. Why danger having your seat crammed by somebody who will dismantle your life’s work when you may time your retirement to make sure a former clerk succeeds you? This calculus transforms judicial service from a dedication to determine instances till incapacity right into a extra strategic profession administration choice. The Court docket turns into much less impartial of politics, no more, as retirements more and more align with electoral cycles.
Fourth, the focus seen in these numbers—notably Justice Thomas’s twelve clerk-judges and Decide Sentelle’s seven—suggests {that a} comparatively small variety of judges are having outsized affect on the composition of the federal bench. This has the impact of concentrating huge energy within the palms of some people to form the judiciary’s future route, notably when mixed with ideologically motivated appointment processes.
Trying ahead, a number of questions demand consideration. Will this pattern proceed to speed up? Will judges who lack Supreme Court docket or distinguished circuit clerkships discover their paths to the bench more and more blocked? Will the general public’s notion of judicial independence undergo?
Maybe most intriguingly, will the subsequent technology of judges—those that clerked for justices who themselves have been clerks—develop distinctive approaches that break from their mentors’ strategies? Justice Gorsuch’s shocking Bostock opinion means that judicial philosophy, even when transmitted by shut mentorship, stays extra dynamic and unpredictable than a easy mannequin of replication would recommend. The clerks might study their mentors’ strategies, however they apply these strategies in new contexts, going through new questions, and generally attain conclusions that might have shocked their lecturers.
The info introduced right here captures a second within the evolution of the federal judiciary—a second when the clerk pipeline has develop into seen sufficient to research however maybe not but so entrenched that it can’t be questioned or redirected. As President Trump’s second administration considers judicial appointments, and as sitting justices ponder their retirement timing, these patterns of succession will seemingly intensify. Whether or not that produces a judiciary that’s extra coherent and predictable, or one that’s closed and self-referential, stays to be seen.
What appears sure is that the period of unpredictable judicial appointments—when Republican presidents would possibly appoint liberal justices or when judges would possibly dramatically evolve on the bench—is basically over. The clerk pipeline, mixed with extra refined vetting processes and strategic retirement selections, has made judicial appointments much more predictable. We all know not simply what ideology a nominee holds, however the place they realized it, from whom, and the way they’re more likely to apply it. The federal judiciary is changing into, for higher or worse, a self-perpetuating establishment the place every technology of judges rigorously selects and trains the subsequent.
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Adam Feldman runs the litigation consulting firm Optimized Authorized Options LLC. Take a look at extra of his writing at Legalytics and Empirical SCOTUS. For extra info, write Adam at [email protected]. Discover him on Twitter: @AdamSFeldman.
