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09 October 2006

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Stuart Buck

I realize that you have broader aims, and I wish you well in that. The clerkship angle is just what caught my eye -- especially the not-very-cautious language used by other folks.

Laura Hatcher

Stuart -- I saw that you were listed in the acknowledgements after I'd last posted -- my apologies.

As for how to quantify all this... Well...

In other posts I've talked about the need for reconceptualization when thinking about the Federalist Society. I frankly don't think we develop concepts without a lot of thick description first, and without concepts, quantification is awfully hard. This is one reason I have been designing this project on the Federalist Society to be multi-method with a heavy emphasis on interviewing, content analysis (the old fashioned way -- by actually reading the texts), and field observations.

Similarly, I don't think you can quantify the sort of influence that we're talking about until we have a good idea of what it "looks like" -- and that will take a lot of interviewing and describing first. Surveys might help, but ultimately you need to be able to sit down and really talk to someone in case you miss the connection. But once you have that, I would think using social network theory, someone could code the interview transcripts and demonstrate through a quantitative analysis what relationships exist between judges, law clerks and the Federalist Society. We've already got some empirical work on the conservative legal movement that does just this (see Heinz et al. in the LSR from a few years ago, and as I cited in an earlier post, he and his co-authors also have a work in progress that was posted at the SSRC).

Just some thoughts -- but the clerkships are not really my particular interest, as you probably know from reading my other blog posts.

Stuart Buck

Yes, Christine sent that to me pre-publication. See the first footnote. :)

I do see what you're saying, and I don't want to deny that there could be some effect in a few cases. It's just that I can't yet figure out how one would quantify it.

Laura Hatcher

Postscript:

There is at least one interesting study on the federal clerks' market that might be of interest -- though it doesn't directly tackle the issue we're discussing. Still, you might find it thought-provoking:

Christopher Avery, Christine Jolls, Richard A. Posner, and Alvin E. Roth "The Market of Federal Judicial Law Clerks," 68 U. Chi. L. Rev. 793 (Summer 2001).

Laura Hatcher

"And as many law students and law professor know, the Federalist Society plays an important, but often opaque, role in allocating many prestigious federal clerkship."

That would be Bill Henderson's wording -- and Bill can speak for himself in explaining his thinking. I've given my opinion on some of this in previous posts.

That said, I did want to comment on the idea that we couldn't study the manner in which clerks are chosen because of the opaque nature of the process. Anecdotally, I have heard at two separate conferences state judges from states on opposite northern coasts of the U.S. describe the process their chambers go through to law students and would-be law students. Yes, there were some idiosyncracies, but overall, there was a method to the madness. And in both cases, the relevance of particular law schools (because they were within the states the judge worked in) or particular law professors were mentioned. And just to be clear, one of the judges would likely not care one way or the other whether an individual had been a member of the Federalist Society; the other I wouldn't hazard a guess without asking the question because I could not get a sense of her politics from her comments.

One of the two judges made it very clear that his current clerks assist him with the process of finding new clerks. The other was less clear on that point. I have, however, heard former *federal* clerks describe the arduous process of making first cuts among applicants, while the judge they worked for made the final decisions... So I suspect that this is a practice other judges have, and that it happens at both the state and federal level.

My point is this: I don't think it takes a lot of imagination to come up with a research design that would at least flesh out some of the variables. It would require some good training in conversational interviewing; and I think, the issue of the Federalist Society would have to be discussed as one of many variables. The researcher would need to remember that it may not be a direct influence. To give a hypothetical example, the fact that a particular law scholar's students are particularly interesting to a judge may have to do with a dinner conversation had at a Federalist Society meeting. Ditto if a clerk finds, in the pile she's reviewing an application of someone she met at a reception. It's the networking and coming together of like minds, then, that happens at the FS that matters in these hypothetical cases. Not the conscious choice of the FS board of directors in "allocating" clerkships. I also would imagine that our imagined researcher would need to grant anonymity to her subjects, which would include both judges and former clerks. And she could also survey those former clerks in much the same way we already survey judges for party affiliation, etc. , and find out who had previous membership in the FS, and whether we can find correlations between the number of clerks who have had that membership and the choices particular judges make in their hiring...

It would require a big grant and lots of patience on the part of the researcher. But judges and clerks do answer questions when they're asked under the right circumstances. But we would need to ask the questions before we could say whether this process was so opaque as to be impossible to study. If the answer of such a project is, "it depends upon the judge", well, I wouldn't be surprised. But I think I'd like to see the work done since the idea the Federalist Society has involvement in such matters is one that a lot of people seem to posit. We need to know whether it's true, and in what way it's true.

Laura

Stuart Buck

Also, I forgot to point out the phrasing used in the previous post:

"And as many law students and law professor know, the Federalist Society plays an important, but often opaque, role in allocating many prestigious federal clerkship."

I'd be intrigued (perhaps "amazed" is the word) if there is any empirical evidence to support the notion that anyone is "allocating" federal clerkships.

Stuart Buck

QUOTE:

But if membership in the Federalist Society is something that breaks the tie between two law students who both have sterling backgrounds; or if knowledge of a particular student comes to a judge via social networks developed in part through the Federalist Society; or any number of other possibilities -- then that IS something we need to note.

Yes, these are possibilities, but 1) I'd guess that those situations are few and far between, and 2) the clerkship hiring process is so idiosyncratic and secretive that it would be tough to come up a few convincing anecdotes, let alone any kind of systematic evidence.

Laura Hatcher

Stuart,

Just to point one thing out: the word "seems" in the quote form my initial post was very carefully chosen. To my knowledge, there is little if any empirical evidence confirming that the Federalist Society is "placing" individuals anywhere -- which is part of my response to Tracy. However, the point remains: lots of commentators (in academia and the press) have suggested that placement of clerks and a whole host of other activities are part of the Federalist Society's work.

My point (especially in my response to Tracy above) was that this is an appearance that I don't know is empirically accurate. And if it's not, then the question of "what IS the Federalist Society?" becomes even more interesting from a social science perspective because we really don't understand what the nature of its influence is.

And, I think, part of the confusion here is that the categories we usually use in political discourse -- interest group, coalition, agenda-setter -- don't capture what the organization does or the influence so many believe it has because those categories all assume an organization is *directly* attempting to influence governmental structures. As Bill suggested, its influence appears, especially if we look carefully at the meetings and who attends them, to be disproportionate given both who are members and where those members end up.

I can't imagine a judge would choose a poor student over an excellent student, either. But if membership in the Federalist Society is something that breaks the tie between two law students who both have sterling backgrounds; or if knowledge of a particular student comes to a judge via social networks developed in part through the Federalist Society; or any number of other possibilities -- then that IS something we need to note. I think, though, that it's not the leadership of the organization themselves, then, who are coordinating a strategy to get "their" people into these places. Rather, they're organizing a forum where groups of people can network and meet. And, as I said before, it's up to those networks to place individuals into policy positions, clerkships, or wherever.

Stuart Buck

I find these sorts of comments confusing:

QUOTE: the prominent role the Federalist Society seems to play in various arenas, including . . . the placement of law students in clerkships

QUOTE: some of our members also joined the Federalist Society to tap into the judicial clerk network

QUOTE: Place your cadres with influential judges or law firms

Would it be too much to ask for specific examples? I ask because in my experience, the Federalist Society was absolutely irrelevant when it came to clerkships.

I went to Harvard Law School (class of 2000), and was in the Federalist Society. I did two appellate clerkships, for David Nelson of the Sixth Circuit and then Stephen Williams of the D.C. Circuit. In my experience, the Federalist Society (as an institution) had zero effect on whether I got a clerkship. Indeed, no one at the Federalist Society could have had any idea to whom I was applying.

Indeed, I suspect that even if you're merely talking about the minimal signaling that comes from putting "Federalist Society" on the resume, that has very little effect as well. I've never heard of a federal appellate judge screening for ideology, except for Luttig on the right and Reinhardt on the left. Both the judges for whom I clerked were somewhat conservative, but would (and did) hire liberals as clerks without a second thought.

The only thing that I've ever even heard of that might have some small relevance here is that the Federalist Society occasionally brings federal judges to campus to speak, and often to attend receptions (or to play poker, as Kozinski reportedly did when I was at HLS).

Still, I'd bet that has a very minimal effect, if any at all. *Infinitely* more important is whether one had good grades in law school; good recommendations from professors (beyond "she got an A in my class"); and possibly law review experience or a good writing sample. Put it this way: I can't even imagine that any federal appellate judge would hire someone from the bottom of his class at a non-top-20 law school just because he had "Federalist Society" on his resume or attended a conference or speech. And I don't know of any federal judge who wouldn't be leaping with joy to hire the Harvard Sears prize winner, or the all-H Yale student, or the Chicago student with a 74 average, regardless of politics.

If the Federalist Society makes any difference at all, I'd guess that it's a very slight marginal effect in a very few cases. If, for example, a very conservative judge has two applicants, both with an A-minus average from Harvard, good recommendations, and an impressive writing sample, and one writes that his life ambition is to found a organization that is to the left of the ACLU while the other one has "Federalist Society" on the resume, the latter one might get the nod. But probably not otherwise: Judges know that students can join all sorts of groups and then send out selective versions of their resumes. But students can't fake grades or recommendations, which is why those items together often seem to make the entire decision, with elective activities not really making any difference at all.

The only other thing that I can think of is that the Federalist Society at my law school may (or may not, I can't even remember) have put together a little booklet on how to apply for judicial clerkships (as in, "Apply broadly," or "don't write a three-page letter about your stamp collecting hobby," or other obvious bits of advice.) So did the Law Review. So did other organizations. Providing information isn't the same as "placing" people in clerkships.

* * *

So what is it, exactly, that people are theorizing here? Just how do you think the Federalist Society "places" people into clerkships? Be specific. If someone has some *empirical* evidence here, I'd be happy to learn of it.

Laura Hatcher

There has been a lot of evidence by scholars studying the conservative legal movement that a long term strategy such as the one Tracy Lightcap describes has been followed by some conservatives. The problem, though, is the Federalist Society, while integral to this process, doesn't seem to necessarily be "the faction". The Society seems to be a place where multiple factions (not just close sympthasizers -- some of the disagreements that develop in those meetings are heart-felt and run very deeply) come together and develop ideologies that, then, have to be taken out through a wide variety of networks (i.e., public interest lawyers of a variety of stripes, through the legal academy, networks of clerks, etc.). Some ideas never catch on -- others are prevalent in the networks, but are not points of focus at Federalist Society meetings. Regardless, it's up to those networks to put their own people in the right places and to advance their particular version of the ideology. The Federalist Society clearly helps connect people and provides a forum for much of this activity, but I suspect we've given it far more credit than its due in thinking that it is some how the puppet master pulling the strings to all of this.

I think there's more than a little competition among conservative ideologies and their proponents, and the Federalist Society seems to provide a playing field for that competition. I think the organization itself seems to play a particular role for the conservative legal movement and the larger conservative movement, but I don't think that role is captured by the concept "interest group".

Tracy Lightcap

I don't think the FS is that hard to classify, but it takes a shift in thinking. Let me suggest that the best way to look at the organization is as an ideological political faction in the Republican party. I always tell my students that there is a way to tell interest groups from political parties: IGs want to influence the way the government uses power, parties want to control power by occupying government institutions. There are a variety of ways of doing that, but only some favor ideological factions. We get used to looking at parties as mass organizations that take part in electoral combat. True, that's what most of the factions in American parties are trying to do. But, obviously, there are some institutions - specifically the courts - where such a strategy is sub-optimal. Even in state court systems that are nominally electoral, most judges are initially appointed and, for the most part, run unopposed afterwards. The federal system is appointed. That presents opportunities for more ideologically driven party activists who may not have attracted enough support to prevail in electoral contests. How, then, to insure that your faction or its close sympathizers (the libertarians) can get a leg up?

The answer is obvious: infiltrate the training institutions for the professional elites that occupy the posts. Place your cadres with influential judges or law firms, develop networks to support them, and, when the time is right, push them forward as candidates. There's nothing particularly new or conceptually bizarre about this. It's a simple matter of reading the institutional field and reacting to opportunities it provides. The Religious Right did it in school board elections; the FS did it in courts (and much more successfully). In both cases they were in institutional fields where the chances of mass participation are low, where the election-oriented elites of the parties weren't directing much attention, and where opportunities for ideologically motivated faction work were much better then in electoral politics. The result is that you move the party in your direction by providing support and experienced candidates. You then move them into government and get to do things your way until someone wises up. It took the election of Rick Santorum to get the appointment of Samuel Alito, of course, but the strategy is similar for both avenues. It's a classic model for intraparty factional victory won on different political battlefields.

William Henderson

I am an alumnus of University of Chicago, which has a history of having a very active and strong Federalist Society chapter. I am primarily interested in the question Laura raised because the Federalists have influence that is disproportionate to their numbers.

For example, because the Federalist Society sponsored so many of the best events at Chicago, I began to buy into the perception that the majority of my classmates were indeed politically conservative or libertarian. Yet, during my 3L year, a straw pool for president went 2 to 1 for Al Gore. (The Faculty straw pool was roughly 50/50, if I recall.) At that moment, I realized that the Federalist organization / network was indeed a force to be reckoned with--that it was disproportionately framing the debate and, I think, effectively drowning out any (or much) alleged liberal orthodoxy in the legal academy.

Note that was active in the Law & Society chapter in Chicago. We styled ourselves as progressives. Yet, some of our members also joined the Federalist Society to tap into the judicial clerk network ... and one landed at the Supreme Court (I never asked if the Law & Society activity was deleted from the resume, though I suspect so.)

Hey, my hat is off to the Federalist Society. I don't know what it IS, but the influence, albeit directed that the judiciary (see Harriet Meirs debacle), is unmistakable. Ideas + organization = influence. Simple formula.

Geoff McGovern

Laura,

You've raised many very good questions in this posting. But I would like to know your answers to them (as well as those of other ELS Blog members). Let me disclose, without suggesting my own political ideology, that I was a Summer Associate with the Federalist Society at the national HQ in 2002 as well as a representative of the organization at Harvard Law while I was a student there (Full Disclosure: I was an editor of the HJLPP for a while as well). I am thus very interested to know outsiders' perspectives on the organization.

I am most interested in the how Fed-Soc fits with standard Interest Group theory. They don't lobby; they don't sponsor litigation; they don't support candidates for elected office. Their mission statement (to save everyone the trouble) reads:

"Law schools and the legal profession are currently strongly dominated by a form of orthodox liberal ideology which advocates a centralized and uniform society. While some members of the academic community have dissented from these views, by and large they are taught simultaneously with (and indeed as if they were) the law.
The Federalist Society for Law and Public Policy Studies is a group of conservatives and libertarians interested in the current state of the legal order. It is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.
The Society seeks both to promote an awareness of these principles and to further their application through its activities. This entails reordering priorities within the legal system to place a premium on individual liberty, traditional values, and the rule of law. It also requires restoring the recognition of the importance of these norms among lawyers, judges, and law professors.
In working to achieve these goals, the Society has created a conservative and libertarian intellectual network that extends to all levels of the legal community."

How does this fit with the Interest Group scholarship of Truman, Olson, Schattsneider, Gray and Lowery, and Baumgartner and Leech?

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