How Your Robotically Party-Line Republican Judicial Sausage Gets Made

In our most recent podcast, Paul and I discussed how the elite legal academy is one of the many areas in which there is a real “hack gap.” As with media, this is in many ways how I would want it — I don’t want the New York Times to be the liberal equivalent of Fox News, although I think not letting Steve Bannon and Larry Klayman do your story assignments isn’t too much to ask — but it certainly puts liberals at a disadvantage. Adam Liptak has a story about how Republicans who aspire to the federal courts are kept in line:

The closed-door “training academy” was aimed at a select group: recent law school graduates who had secured prestigious clerkships with federal judges. It was organized by the Heritage Foundation, a conservative group that has played a leading role in moving the courts to the right, and it had some unusual requirements.

“Generous donors,” the application materials said, were making “a significant financial investment in each and every attendee.” In exchange, the future law clerks would be required to promise to keep the program’s teaching materials secret and pledge not to use what they learned “for any purpose contrary to the mission or interest of the Heritage Foundation.”

The conservative legal movement has made bold moves before, and it has long cultivated law students and young lawyers, partly to ensure a deep bench of potential judicial nominees. The Heritage Foundation, along with the Federalist Society, helped compile the lists of potential Supreme Court nominees from which President Trump chose his two appointees, Justices Neil M. Gorsuch and Brett M. Kavanaugh. The two groups also helped identify many of the scores of Mr. Trump’s appointees to the lower federal courts.

But legal experts said the effort by Heritage to train and influence law clerks raised serious ethical questions and could undermine the duties the clerks have to the justice system and to the judges they will serve.

I don’t really have a solution to this — I wouldn’t want the ACS to become an organization dedicated to churning out a bunch of interchangeable drones who are mental slaves to wealthy donors even if this was possible, which it almost certainly isn’t. But it would be nice if every time one of these human manifestations of the most recent platform of the Texas Republican Party gets a Supreme Court nomination liberals in the legal elite would stop rising up to praise their free-thinking judicial independence and sterling credentials etc. etc. etc. And I’ll have more on this soon since I’m teaching Mark Graber’s crucial essay in my Supreme Court seminar next week — when I was assigning the response papers, I described the argument and half the class immediately raised their hands to volunteer — but extreme levels of elite polarization and the current norms of judicial independence are not a stable combination.