By popular demand. .
I’ve had a few requests lately for a post about the nefarious influence of the Federalist Society on our judicial selection process. It’s not a subject about which I have especial expertise–indeed, I don’t think I’d heard of them until maybe a decade ago and they’ve been around much longer—and to the extent that I’m knowledgeable I’ve been reasonably supportive of their agenda. Coincidentally, though, I stumbled on an interesting piece at Think Progress this morning by Ian Millhiser titled “ Brett Kavanaugh hurdled his better-credentialed peers to get his nomination. This is how he did it. ”
His lede starts magnanimously but quickly shifts:
If you clicked on this piece because you’re looking for an argument that Judge Brett Kavanaugh is an unqualified hack, expect to be disappointed. Kavanaugh is something far more dangerous — a brilliant, hardworking, deeply ideological hack. If he’s confirmed to the Supreme Court, expect him to be extraordinarily effective in pushing a severely conservative agenda.
But neither Kavanaugh nor the last person our accidental president put on the Supreme Court under dubious circumstances, Neil Gorsuch, are the most qualified people for their current jobs — or for any of the other elite jobs they’ve held in their lifetimes.
The story of how Kavanaugh and Gorsuch managed to rise, despite the fact that they competed against dozens or even hundreds of lawyers with equally impressive credentials, is one of the most important stories in the United States today. It is a story about how small differences can inspire great loyalty. And how shadowy figures can amass great power by controlling what is essentially an affirmative action machine for conservatives.
And it is a dangerous threat to judicial independence and to the rule of law.
Let’s treat Millhiser as a hostile witness here. He’s clearly qualified to comment on the matter but clearly dislikes conservative judicial ideology. And it’s odd to argue that people with Gorsuch and Kavanaugh’s legal credentials are somehow akin to “affirmative action” recipients.
But his examination of the arcane world of the legal hierarchy is interesting:
To understand Kavanaugh and Gorsuch’s career, it’s helpful to understand the fractal inequality that drives the highest echelons of the legal profession.
There’s an old joke that the practice of law is a pie-eating contest and the prize is more pie. College students compete for slots at the top law schools. The best students at these schools compete for jobs on the law review, student-run academic journals where the highest editors often work full-time, unpaid jobs on top of their studies. Students who already made it to law review compete to become those editors. The editors compete for clerkships, and the clerks for the most prestigious judges compete to clerk for the Supreme Court.
The marginal differences between these competitors can be vanishingly small. The difference between a Harvard law graduate who gets to clerk on the Supreme Court and one who merely clerks for a court of appeals judge can hinge on the fact that the second graduate had the flu during one of their exams and only received an A- because of that illness.
But these small differences matter a great deal in terms of career outcomes. A lawyer who “only” clerks for a federal appellate judge might begin their career as a Justice Department litigator in Washington, DC. But a nearly identical lawyer who clerked on the Supreme Court is much more likely to start out in a handful of the federal government’s most prestigious jobs for young lawyers — The Office of Legal Counsel, a political aide to the attorney general, or even the White House Counsel’s office — all of which are often stepping stones to a federal judgeship.
Law firms pay signing bonuses as high as $105,000 for young lawyers exiting a lower court clerkship, but they offer bonuses up to $350,000 to outgoing Supreme Court clerks. Former court of appeals clerks may very well make partner and get to spend the bulk of their career arguing appeals for well-paying clients, but former Supreme Court clerks are overwhelmingly more likely to become Supreme Court litigators themselves — or potentially even Supreme Court justices.
Asking most lawyers to distinguish between the career opportunities available to court of appeals clerks, and the opportunities available to Supreme Court clerks, is a bit like asking whether Wonder Woman could win a fight against Superman. But for the young lawyers whose rare combination of brilliance, diligence, ambition, and luck allows them to compete credibly for a Supreme Court clerkship, their ability to claim that prize could decide whether they go on to become one of the most powerful people in the nation.
This comports with my limited understanding of matters. I’d be interested in insights from HarvardLaw92 or others who travel in those circles. Still, Millhiser hasn’t gotten to the “affirmative action” bit.
The important thing to understand about this rat race is that it is a game of very small distinctions. “Feeder judges,” the handful of ultra-prominent judges who routinely send their clerks on to clerk for a Supreme Court justice, do not typically hire clerks who are obviously better suited than anyone else who applied for the job. To the contrary, feeder judges typically receive hundreds of qualified applicants, dozens of whom could do the job with rare distinction.
Sometimes, there is a clerkship applicant with such sterling credentials that they are all-but-assured a job with a feeder judge. But the hiring process typically turns on arbitrary distinctions. The clerks each feeder judge hires each year are determined as much by personal connections and luck as they are determined because any one applicant outshines their peers.
Which bring us back to Kavanaugh and Gorsuch.
The striking thing about both men’s academic credentials is that they fit right within the zone of twilight where they are credible applicants for a feeder clerkship, but neither man was a standout applicant. Gorsuch graduated cum laude, not magna cum laude or summa cum laude, from Harvard Law School. Kavanaugh initially clerked for Judge Walter Stapleton, a federal appellate judge who was not a feeder judge, before eventually going on to clerk for feeder Judge Alex Kozinski and then for Justice Anthony Kennedy.
Indeed, the circumstances that led to Kavanaugh getting his second clerkship are revealing. Kozinski, who left the bench in disgrace due to his pervasive practice of sexually harassing his clerks, initially hired future Secretary of Health and Human Services Alex Azar as his law clerk. Yet Azar left this clerkship under mysterious circumstances after only six weeks. Brett Kavanaugh was the replacement.
Kavanaugh became Azar’s replacement, moreover, largely due to his relationship with Yale law professor George Priest. Priest, according to the New York Times, was “a longtime sponsor of Yale’s chapter of the Federalist Society.” Kavanaugh and Priest became friends while the former was a student at Yale because they used to play basketball together. When Azar left the Kozinski clerkship, Priest arranged for Kavanaugh to take over.
Without this opportunity to clerk for a feeder judge, it is very unlikely that Kavanaugh would have clerked on the Supreme Court. It is equally unlikely that Kavanaugh would have received a fellowship under then-Solicitor General Ken Starr, and had he not formed this early relationship with Starr, Kavanaugh almost certainly wouldn’t have wound up becoming one of Starr’s top aides during Starr’s investigation into President Clinton — a job opportunity that launched Kavanaugh into the highest levels of Republican politics.
Judge Kavanaugh was set on his career path, not because he outperformed all of his Yale classmates, but because he had credentials that were just good enough to land him a clerkship with Kozinski, and because he played basketball with a prominent member of the Federalist Society.
The public record of Gorsuch’s early career is less detailed, but we do know he first clerked for Judge David Sentelle, a very conservative feeder judge known for hiring equally conservative law clerks. Gorsuch was a very good student at Harvard law, but not a standout. He was absolutely qualified to clerk in Sentelle’s chambers, but the fact that a “mere” cum laude graduate of Harvard got to clerk in this prestigious chambers likely has as much to do with Gorsuch’s right-wing views as it does with his academic record.
So, now we’re getting somewhere. Both Gorsuch and Kavanaugh were extremely well-qualified. The argument that they’re not the best qualified because others had slightly better grades isn’t that interesting. Maybe they made up for it with extracurriculars. Or were better in the interviews. And even networking isn’t comparable to affirmative action; it’s just the natural course of events in even modestly elite circles. But, of course, we’ve finally come to the dreaded Federalist Society.
There are two important takeaways from this dive into the elite world of the Harvard Law Review and the Yale Law Journal. One is that the students who live in this world care deeply about very small distinctions. They will perform thousand of hours of free labor, bury themselves in their studies, structure their social lives, and go out of their way to impress certain professors — all to make it more likely they will clerk for someone like Kozinski instead of someone like Stapleton.
The second takeaway is that these ambitious lawyers-in-waiting will typically be eternally grateful to anyone who nudges them just one rung up the prestige ladder.
Which brings us back to the Federalist Society, the Svengali-like organization that Donald Trump relies on to select many of his judicial nominees .
Svengali-like? Tell me more.
The important thing to understand about the Federalist Society is that, with rare exception, they do not promote unqualified ideologues into key jobs. What they can do, however, is make it more likely that when a feeder judge (or a justice, or an attorney general, or a president) is confronted with a dozen highly qualified applicants for a powerful job, the person who ultimately gets the job is a staunch conservative.
That was my prior understanding.
Indeed, the Federalist Society operates in very much the same way that affirmative action functions after the Supreme Court’s decisions in Grutter v. Bollinger and Fisher v. University of Texas.
At top universities, there are basically three different kinds of applicants. Some applicants are so obviously qualified that they are certain to be admitted. Others are so obviously unqualified that they will never be accepted.
