Feeder judge

Feeder judges are those judges in the American federal judiciary whose law clerks are often selected to become clerks for the Supreme Court of the United States.[1] Feeder judges are able to place comparatively many of their clerks on the Supreme Court for a variety of reasons, including personal or ideological relationships with particular justices, prestigious and respected positions in the judiciary, and reputations for attracting and training high quality clerks.[2] Clerkships for the Supreme Court are highly prized and the most difficult to secure in the American clerking landscape—they have been called the "brass ring of law clerk fame"[3] and the "ultimate achievement."[4] Feeder clerkships are, consequently, similarly prized as stepping stones to a potential clerkship with the Supreme Court.

History

Judge Learned Hand was one of the earliest feeder judges in the United States.

Justices of the early Supreme Court hired clerks straight from law school based on personal recommendations. But over time, applicants to the Supreme Court began to more often have prior clerkship experience, and between 1962 and 2002, 98 percent of Supreme Court clerks had clerked before.[5] As the court began to draw more frequently from prior clerks, particular lower-court judges naturally had more consistent success placing their clerks with the Supreme Court. This phenomenon probably began with Judge Learned Hand,[6] and had been established by the time of Chief Justice Warren Burger in 1969, although data before his tenure is unreliable.[5][7] Although the phenomenon had thus existed for quite some time, the first published uses of the phrase was in a 1990 article by Judge Patricia Wald and 1991 article by Judge Alex Kozinski, themselves both feeder judges.[8]

Statistical analysis comparing the feeders of the 1976-1985 and 1995-2004 terms suggests the reliance on feeders has remained consistent since the Burger era, or at most has seen modest growth.[9] However, the feeder system has become more concentrated as more judges are feeding to specific justices than in the past.[10]

Judges

During the 1969–1985 tenure of Chief Justice Warren E. Burger, 85 percent of Supreme Court clerks had previously served on a court of appeals and 12 percent on a district court. For the 1986–2002 William Rehnquist court, these numbers had risen to 92 percent and dropped to 7 percent, respectively.[5] Although most feeder judges are therefore court of appeals judges, some district court judges are feeders. Judges Louis H. Pollak and Pierre N. Leval were historically feeders while on the district court, and district Judge Jed S. Rakoff is essentially a feeder since he essentially co-hires clerks with appellate feeder Judge Robert Katzmann.[11]

Various factors affect which judges become feeders. Ideological alignment with justices is usually an important factor, and conservative feeder judges place more clerks with conservative justices and vice versa.[12][13] In fact, feeder judges are notorious for being on the extremes of the judicial spectrum, with comparatively few ideologically moderate feeder judges.[14]

For some, the reputation as a feeder judge is a draw. "It's a little bit of a prestige matter," Kozinski has remarked.[15] Being regarded as a feeder can be a way to stand out among the ranks of courts of appeals judges.[16] Indeed, many feeder judges cherish this status so much they modulate their own clerkship hiring based on an applicant's compatibility with the justices, and pass over promising clerks because they are doubtful of the applicant's chances of securing a Supreme Court clerkship.[17] Additionally, because feeder clerkships are themselves so highly desired, the judges benefit by being able to hire some the most talented of the clerkship applicant pool in a given year.[18]

Some judges have an edge placing clerks with justices for whom they themselves were once clerks. Judge Michael Luttig, for example, clerked for Justice Antonin Scalia while Scalia was on the D.C. Circuit, and Luttig placed three-quarters of his clerks with Scalia or Justice Clarence Thomas.[19] Kozinski clerked for Justice Anthony Kennedy, and of the fifteen clerks he placed on the court between 1995 and 2004, eight were with Kennedy.[20] Beyond connections to particular justices, the D.C. Circuit is regarded a feeder circuit to the entire court, due partially to the simple fact that justices live, work and socialize with those judges in Washington, D.C. as well as being a prestigious circuit.[21]

Feeder judges

Modern feeder judges (OT 2009–present)
Judge Court No. of clerks
Kavanaugh, BrettBrett Kavanaugh D.C. Circuit 18
Wilkinson III, J. HarvieJ. Harvie Wilkinson III Fourth Circuit 14
Garland, Merrick B.Merrick B. Garland D.C. Circuit 20
Sutton, JeffreyJeffrey Sutton Sixth Circuit 10
Kozinski, AlexAlex Kozinski Ninth Circuit 10
Katzmann, RobertRobert Katzmann Second Circuit 9
Tatel, David S.David S. Tatel D.C. Circuit 8
OscannlainDiarmuid O'Scannlain Ninth Circuit 7
Griffith, Thomas B.Thomas B. Griffith D.C. Circuit 7
Ginsburg, Douglas H.Douglas H. Ginsburg D.C. Circuit 6
Gorsuch, NeilNeil Gorsuch Tenth Circuit 9
Reinhardt, StephenStephen Reinhardt Ninth Circuit 7
Calabresi, GuidoGuido Calabresi Second Circuit 6
Fletcher, William A.William A. Fletcher Ninth Circuit 6
Posner, RichardRichard Posner Seventh Circuit 5
Brown, Janice RogersJanice Rogers Brown D.C. Circuit 5

See also

References

  1. ↑ Baum, Lawrence; Ditslear, Cory (March 2010). "Supreme Court Clerkships and "Feeder" Judges". Justice System Journal (National Center for State Courts) 31 (1): 26.
  2. ↑ Ward, Artemus; Weidan, David (2006). "A Great Ordeal". Sorcerer's Apprentices: 100 Years of Law Clerks at the United State Supreme Court. NYU Press. p. 83. ISBN 9780814794043.
  3. ↑ Peppers, Todd C. (2006). Courtiers of the Marble Palace: The Rise and Influence of the Supreme Court Law Clerk. Stanford University Press. p. 16.
  4. ↑ Morse, Robert (April 11, 2013). "Which Law Schools' Grads Get the Most Judicial Clerkships?". U.S News & World Report. Retrieved 12 June 2014.
  5. 1 2 3 Ward & Weidan 2006, p. 77.
  6. ↑ Ross, David E. (2013). "Feeding the right stuff: Would you clerk for judge Learned Hand?". Journal of Law: A Periodical Laboratory of Legal Scholarship (The Green Bag) 3 (2): 189.
  7. ↑ But see List of law clerks of the Supreme Court of the United States, the far right column of which lists prior clerkships of Supreme Court clerks.
  8. ↑ Garrow, David. "Acolytes in Arms" (PDF). The Green Bag 9 (2): 417 n.28.
  9. ↑ Baum & Ditslear 2010, pp. 31–33.
  10. ↑ Baum & Ditslear 2010, p. 35.
  11. ↑ Lat, David (July 8, 2015). "Supreme Court Clerk Hiring Watch: Who Is NOT Retiring From SCOTUS?". Above the Law. Retrieved 9 July 2015.
  12. ↑ Baum & Ditslear 2010, pp. 37–40.
  13. ↑ Ward & Weidan 2006, pp. 83–85.
  14. ↑ Garrow, p. 418.
  15. ↑ Bossert, Rex (October 20, 1997). "Clerks' Route to Top Court". National Law Journal., quoted in Baum, pp. 27–28 (2010)
  16. ↑ Baum & Ditslear 2010, p. 27.
  17. ↑ "There are some judges who like to position themselves as feeders to the Supreme Court, since that's one way that a judge can make a reputation for him or herself," said Joan Larsen, a faculty clerkship adviser at the University of Michigan Law School. "I have had a feeder judge say to me, 'Yes, Joan, I'm sure he would be a great clerk, but I can't send him upstairs.'"Rampell, Catherine (September 23, 2011). "Judges Compete for Law Clerks on a Lawless Terrain". The New York Times. Retrieved 12 June 2014.
  18. ↑ Baum & Ditslear 2010, p. 28.
  19. ↑ Ward & Weidan 2006, p. 83.
  20. ↑ Baum & Ditslear 2010, pp. 41–42.
  21. ↑ Ward & Weidan 2006, p. 80.
  22. ↑ Information from OT 2009–OT 2013 from David Stras. "Secret Agents: Using Law Clerks Effectively". 98 Marquette Law Review 151: 155–157 (Fall 2014), which relied on reports from Above the Law and List of law clerks of the Supreme Court of the United States.
  23. ↑ Ward & Weidan 2006, p. 82.

External links

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