Monday, December 21, 2009

Is Law School Non Partisan?: A follow-up

As I discussed in a previous post, I find the role of partisanship and its potential to hinder insightful debate within a law school atmosphere rather intriguing. Therefore, when I read this New York Times article about how ideology is beginning to play a primary role in the life of former Supreme Court clerks, I expected to be similarly amazed. But I wasn't.

The article discusses how Justices are likely to hire clerks who agree with their political platform, and in turn, the presidential administration is more likely to hire former clerks of Justices that support the administration's political platform. I really want to be shocked that political figures are not actively seeking diverse partisan interests to avoid problems of groupthink, but it seems like that is simply the way the political world functions. While the same may not be true in finance or medicine, in politics, you want people on your side who at least agree with your overall approach to issues, and then they can debate you on more nuanced topics of how to tackle a specific problem. I am trying to follow through with my own thought process and think about what would happen if Obama began hiring all of Scalia's former clerks, but I cannot quite grasp how significant the effect would be.

The most interesting aspect of the article, in my opinion, was the idea that some firms have a tendency to hire more former clerks of either conservative or liberal justices, suggesting that law firms have political leanings as well. The article does not imply that firms are specifically turning candidates away for their political views, but simply notes a general correlation. At the end, the author claims that while these trends may be predictable, they effectively blur the line between law and politics. I guess the real question is whether that line exists, where it falls, and how much it matters in the real world.


  1. You bring up a great point. I think the author of the Times article and the authors of the paper quoted in the article are naive to think that law and politics are separate realms and that injecting political ideology into constitutional jurisprudence somehow corrupts the legal process. While for most legal issues that come before lower courts, there may be a clear answer that exists independent of one's political views, cases that reach the Supreme Court are not among those. That's why they are being heard by the Supreme Court. These cases touch on issues where the law is vague and subject to multiple interpretations. And someone's interpretation of that legal issue is inevitably going to be influenced by their political leanings (abortion is a perfect example). So at this very high level, the line between law and politics is blurred to the point that sometimes the two are indistinguishable. And while part of what lawyers do is to say what the law is, another part, as in these cases, is to say what the law should be. I see nothing wrong with that.

    Do you think there's anything wrong with certain law firms being dominated by lawyers of a similar political bent? The article seems to imply that firms have some sort of civic duty to have lawyers from both sides of the spectrum.

  2. I don't read the article saying that at all, M, it's just pointing out an occurence which is fairly notable all things considered.

  3. m, I'm honestly not sure how I feel about the political leanings of firms and if partisanship really does affect the practice of law. Regardless, choosing candidates based on political views does not just arise with former clerks. Many law students have organizations on their resume or activities they participate in that reflect their political affiliations. My guess is that interviewers do notice such things, but any impact they have on hiring is harder to track.

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