WI Supreme Court clears way for collective bargaining law to take effect

Tuesday, June 14, 2011 by Wisconsin State Journal
by Ed Treleven

A Dane County judge overstepped her authority when she voided Gov. Scott Walker's measure limiting public sector collective bargaining, the state Supreme Court ruled Tuesday in a fractious 4-3 decision.

In a nine-page decision -- followed by about 60 pages of concurring and dissenting opinions -- the court's conservative majority said Dane County Circuit Judge Maryann Sumi "usurped the legislative power which the Wisconsin constitution grants exclusively to the Legislature" when she voided the law.

Sumi ruled that a legislative conference committee violated the state's open meetings law when it hastily met in March to amend the bill, allowing the Republican-controlled Senate to get around a boycott by Senate Democrats.

But in a stinging dissent, Chief Justice Shirley Abrahamson wrote that the authors of the court's order -- Justices Patience Roggensack, Annette Ziegler and Michael Gableman, along with concurring Justice David Prosser -- lacked "a reasoned, transparent analysis" and incorporate "numerous errors of law and fact."

The court's order was met with delight by the Republican majority in the state Legislature.

"We've been saying since day one that Republicans passed the budget repair bill correctly, so frankly this isn't much of a surprise," state Senate Majority Leader Scott Fitzgerald said. "We followed the law when the bill was passed, simple as that."

State Sen. Alberta Darling, R- River Hills, said she was "thrilled."

"We knew we hadn't done anything wrong," she said. "Today was a day of justice. Today is a day of victory."

The court, however, declined to step into the dispute over whether the March 9 conference committee meeting violated the state's open meetings law, leaving it to the Legislature to set its own rules.

"In the posting of notice that was done, the Legislature relied on its interpretation of its own rules of proceeding," the court wrote. "The court declines to review the validity of the procedure used to give notice of the joint committee on conference."

State Department of Administration Secretary Mike Huebsch said DOA "is reviewing the Supreme Court's order and will begin implementing (the law) when appropriate."

Gov. Scott Walker said the court's ruling "provides our state the opportunity to move forward together and focus on getting Wisconsin working again."

Assembly Minority Leader Peter Barca, D-Kenosha, said the court's decision validates secrecy by the Legislature.

"The majority of the Supreme Court is essentially saying that the legislature is above the law. It's now clear that unless the constitution is amended, the Legislature is free to ignore any laws on the books," Barca said. "By this interpretation, the constitutional right of the people to know what its Legislature is doing has been significantly minimized."

The court also said that Sumi erred by barring publication of the law by Secretary of State Douglas La Follette, and it ruled that the constitutional requirement that the doors to the houses of the Legislature be open during business were met.

When the conference committee met, the court said, the doors to the Senate and Assembly and the room where the conference committee was meeting were open to the press and to the public.

"There is no constitutional requirement that the legislature provide access to as many members of the public as wish to attend meetings of the legislature or meetings of legislative committees," the court wrote.

In his concurrence, Prosser wrote that he was "troubled" by Sumi's "apparent indifference" to established law on the open meetings question.

"The circuit court second-guessed not only four legislative leaders but also the Senate chief clerk - an attorney - when it determined that no senate or assembly rule...governed the notice requirement of the special session conference committee," Prosser wrote. "The circuit court, in effect, told the Senate chief clerk that he did not know what the Senate rule meant."

Prosser wrote that only a clear constitutional violation would justify voiding the collective bargaining law, but only after the law was properly published.

In her dissent, Abrahamson said the high court erred in taking the case through "original jurisdiction" instead of waiting for one party or the other to appeal a lower court's ruling. She singled out Prosser, whose concurrence, she wrote, "is long on rhetoric and long on story-telling that appears to have a partisan slant" and, like the court's order, "reaches unsupported conclusions."

Instead, Abrahamson said she agreed with Justice Patrick Crooks' dissent, that the case should come to the Supreme Court as part of an "orderly appellate review of the circuit court's order with a full opinion."

"Only with a reasoned, accurate analysis can a court assure the litigants and the public that a decision is made on the basis of facts and law," Abrahamson wrote, "free from a judge's personal ideology and free from external pressure by the executive or legislative branches, by partisan political parties, by public opinion or by special interest groups."

Crooks wrote that the majority reached "a hasty decision" that doesn't address important questions about the Legislature's constitutional requirements to provide public access to its hearings and the courts' role in holding it to those requirements.

"Those who would rush to judgment on these matters are essentially taking the position that getting this opinion out is more important than doing it right and getting it right," he wrote. "It is rather astonishing that the court would choose to decide such an unusual and complex case without benefit of a complete record."

Ted Koppel: Olbermann, O'Reilly and the death of real news

By Ted Koppel - Sunday, November 14, 2010;

To witness Keith Olbermann - the most opinionated among MSNBC's left-leaning, Fox-baiting, money-generating hosts - suspended even briefly last week for making financial contributions to Democratic political candidates seemed like a whimsical, arcane holdover from a long-gone era of television journalism, when the networks considered the collection and dissemination of substantive and unbiased news to be a public trust.

Back then, a policy against political contributions would have aimed to avoid even the appearance of partisanship. But today, when Olbermann draws more than 1 million like-minded viewers to his program every night precisely because he is avowedly, unabashedly and monotonously partisan, it is not clear what misdemeanor his donations constituted. Consistency?

We live now in a cable news universe that celebrates the opinions of Olbermann, Rachel Maddow, Chris Matthews, Glenn Beck, Sean Hannity and Bill O'Reilly - individuals who hold up the twin pillars of political partisanship and who are encouraged to do so by their parent organizations because their brand of analysis and commentary is highly profitable.

The commercial success of both Fox News and MSNBC is a source of nonpartisan sadness for me. While I can appreciate the financial logic of drowning television viewers in a flood of opinions designed to confirm their own biases, the trend is not good for the republic. It is, though, the natural outcome of a growing sense of national entitlement. Daniel Patrick Moynihan's oft-quoted observation that "everyone is entitled to his own opinion, but not his own facts," seems almost quaint in an environment that flaunts opinions as though they were facts.

And so, among the many benefits we have come to believe the founding fathers intended for us, the latest is news we can choose. Beginning, perhaps, from the reasonable perspective that absolute objectivity is unattainable, Fox News and MSNBC no longer even attempt it. They show us the world not as it is, but as partisans (and loyal viewers) at either end of the political spectrum would like it to be. This is to journalism what Bernie Madoff was to investment: He told his customers what they wanted to hear, and by the time they learned the truth, their money was gone.

It is also part of a pervasive ethos that eschews facts in favor of an idealized reality. The fashion industry has apparently known this for years: Esquire magazine recently found that men's jeans from a variety of name-brand manufacturers are cut large but labeled small. The actual waist sizes are anywhere from three to six inches roomier than their labels insist.

Perhaps it doesn't matter that we are being flattered into believing what any full-length mirror can tell us is untrue. But when our accountants, bankers and lawyers, our doctors and our politicians tell us only what we want to hear, despite hard evidence to the contrary, we are headed for disaster. We need only look at our housing industry, our credit card debt, the cost of two wars subsidized by borrowed money, and the rising deficit to understand the dangers of entitlement run rampant. We celebrate truth as a virtue, but only in the abstract. What we really need in our search for truth is a commodity that used to be at the heart of good journalism: facts - along with a willingness to present those facts without fear or favor.

To the degree that broadcast news was a more virtuous operation 40 years ago, it was a function of both fear and innocence. Network executives were afraid that a failure to work in the "public interest, convenience and necessity," as set forth in the Radio Act of 1927, might cause the Federal Communications Commission to suspend or even revoke their licenses. The three major broadcast networks pointed to their news divisions (which operated at a loss or barely broke even) as evidence that they were fulfilling the FCC's mandate. News was, in a manner of speaking, the loss leader that permitted NBC, CBS and ABC to justify the enormous profits made by their entertainment divisions.

On the innocence side of the ledger, meanwhile, it never occurred to the network brass that news programming could be profitable.

Until, that is, CBS News unveiled its 60 Minutes news magazine in 1968. When, after three years or so, "60 Minutes" turned a profit (something no television news program had previously achieved), a light went on, and the news divisions of all three networks came to be seen as profit centers, with all the expectations that entailed.

I recall a Washington meeting many years later at which Michael Eisner, then the chief executive of Disney, ABC's parent company, took questions from a group of ABC News correspondents and compared our status in the corporate structure to that of the Disney artists who create the company's world-famous cartoons. (He clearly and sincerely intended the analogy to flatter us.) Even they, Eisner pointed out, were expected to make budget cuts; we would have to do the same.

I mentioned several names to Eisner and asked if he recognized any. He did not. They were, I said, ABC correspondents and cameramen who had been killed or wounded while on assignment. While appreciating the enormous talent of the corporation's cartoonists, I pointed out that working on a television crew, covering wars, revolutions and natural disasters, was different. The suggestion was not well received.

The parent companies of all three networks would ultimately find a common way of dealing with the risk and expense inherent in operating news bureaus around the world: They would eliminate them. Peter Jennings and I, who joined ABC News within a year of each other in the early 1960s, were profoundly influenced by our years as foreign correspondents. When we became the anchors and managing editors of our respective programs, we tried to make sure foreign news remained a major ingredient. It was a struggle.

Peter called me one afternoon in the mid-'90s to ask whether we at Nightline had been receiving the same inquiries that he and his producers were getting at World News Tonight. We had, indeed, been getting calls from company bean-counters wanting to know how many times our program had used a given overseas bureau in the preceding year. This data in hand, the accountants constructed the simplest of equations: Divide the cost of running a bureau by the number of television segments it produced. The cost, inevitably, was deemed too high to justify leaving the bureau as it was. Trims led to cuts and, in most cases, to elimination.

The networks say they still maintain bureaus around the world, but whereas in the 1960s I was one of 20 to 30 correspondents working out of fully staffed offices in more than a dozen major capitals, for the most part, a "bureau" now is just a local fixer who speaks English and can facilitate the work of a visiting producer or a correspondent in from London.

Much of the American public used to gather before the electronic hearth every evening, separate but together, while Walter Cronkite, Chet Huntley, David Brinkley, Frank Reynolds and Howard K. Smith offered relatively unbiased accounts of information that their respective news organizations believed the public needed to know. The ritual permitted, and perhaps encouraged, shared perceptions and even the possibility of compromise among those who disagreed.

It was an imperfect, untidy little Eden of journalism where reporters were motivated to gather facts about important issues. We didn't know that we could become profit centers. No one had bitten into that apple yet.

The transition of news from a public service to a profitable commodity is irreversible. Legions of new media present a vista of unrelenting competition. Advertisers crave young viewers, and these young viewers are deemed to be uninterested in hard news, especially hard news from abroad. This is felicitous, since covering overseas news is very expensive. On the other hand, the appetite for strongly held, if unsubstantiated, opinion is demonstrably high. And such talk, as they say, is cheap.

Broadcast news has been outflanked and will soon be overtaken by scores of other media options. The need for clear, objective reporting in a world of rising religious fundamentalism, economic interdependence and global ecological problems is probably greater than it has ever been. But we are no longer a national audience receiving news from a handful of trusted gatekeepers; we're now a million or more clusters of consumers, harvesting information from like-minded providers.

As you may know, Olbermann returned to his MSNBC program after just two days of enforced absence. (Given cable television's short attention span, two days may well have seemed like an "indefinite suspension.") He was gracious about the whole thing, acknowledging at least the historical merit of the rule he had broken: "It's not a stupid rule," he said. "It needs to be adapted to the realities of 21st-century journalism."

There is, after all, not much of a chance that 21st-century journalism will be adapted to conform with the old rules. Technology and the market are offering a tantalizing array of channels, each designed to fill a particular niche - sports, weather, cooking, religion - and an infinite variety of news, prepared and seasoned to reflect our taste, just the way we like it. As someone used to say in a bygone era, "That's the way it is."

The Dysfunction of American Politics

By Robert Samuelson - October 25, 2010

WASHINGTON -- To its practitioners, politics is about power: getting it, keeping it and using it. But for the nation, the basic purpose of politics is to conciliate. If everyone agreed on everything, politics would be unnecessary. So would democracy and elections. A dictator could govern by universally accepted preferences and policies. Without consensus, politics is how we resolve our differences short of resorting to violence. One reason so many Americans are unhappy with politics today is that it has abdicated its central role. It doesn't narrow our differences; it exaggerates them.

There never has been -- as commentator Michael Barone warns -- a golden age when Americans basked in bipartisan harmony. Still, the present popular revulsion with politics seems particularly powerful. Consider some recent poll results: 48 percent of Americans would, if given the chance, replace every member of Congress, including their own; only 11 percent have a "very positive" view of the Democratic Party, slightly better than the Republican party (7 percent) and slightly worse than the tea party (12 percent); 77 percent of the public see the parties "bickering more," a huge increase from 2009 (53 percent).

Some anger clearly reflects the depressed economy. The effects of the slump have been exceptionally widespread and personal. More than two-thirds of Americans report knowing someone who lost a job. The impending election may relieve some disappointment. This is what elections are for -- to release discontent and permit change. Perhaps.

History, however, suggests skepticism. There's a regular cycle of disillusion. Immediately after the election, the victors are euphoric. But it's only a matter of time before they feel betrayed, while defeat had already demoralized the election's losers. Almost everyone is unhappy with political leaders, though often for different reasons.

Politics becomes dysfunctional in that leaders cannot command broad public support and differences of opinion widen. Legislation is often passed with only one party's support.

Congressional tactics have changed to frustrate bipartisanship, as Susan Davis writes in National Journal. Senate filibusters were once reserved for the most divisive issues -- race, conspicuously. Now filibusters are routine. From 1919 to 1960, cloture (the decision to end debate, now requiring 60 votes) was filed 27 times. From 2003 to 2006, when Republicans controlled the Senate, they filed cloture 130 times to break Democratic filibusters. Since 2007, when Democrats took charge, they've filed 257 cloture motions, Davis reports.

It's not that the public has become sharply polarized. In 2010, 42 percent of Americans call themselves conservative, 35 percent moderates and 20 percent liberals, reports Gallup. In 1992, the figures were 43, 36 and 17 percent. So there's a widening disconnect between the polarized political system and the less- polarized public. There are at least four reasons for this.

First, politicians depend increasingly on their activist "bases" for votes, money and job security (read: no primary challenger). But activist agendas are well to the left or right of center. So when politicians pander to their bases, they often offend the center. In one poll, 70 percent of registered voters said Republicans positions were too conservative at least some of the time; 76 percent likewise thought Democratic positions often "too liberal."

Second, politics has become more moralistic from both left and right. Idealistic ideologues campaign to "save the planet," "protect the unborn," "reclaim the Constitution." When goals become moral imperatives, there's no room for compromise. Opponents are not just mistaken; they're immoral. They're cast as evil, ignorant, dangerous, or all three.

Third, cable television and the Internet impose entertainment values on politics. Constant chatter reigns. Conflict and shock language prevail; analysis is boring.

Finally, politicians overpromise. The federal budget has run deficits in all but five years since 1961. The main reason: both Democrats and Republicans want to raise spending and cut taxes. To obscure their own expediency, both parties blame the other.

Politicians have always assailed each other. But the totality of these changes has altered the system's character. Many players have an interest in perpetuating disagreements and differences. Advocacy groups and their allies derive psychic rewards (a sense of superiority) and political benefits (more members and contributions) from demonizing their adversaries. Cable TV needs combat, not comity.

The impulse is not to govern from the center, which still represents most Americans, but from "the base." President Obama's health care "reform" was a good example. Strongly favored by Democrats, it was consistently opposed by about half of Americans. To be fair, George W. Bush governed the same way.

The result is mass discontent. Overwrought expectations are regularly disappointed. Liberal and conservative bases feel abused because their agendas are rarely entirely enacted. They are too radical or unrealistic. The center feels frustrated that the bases' disproportionate power impedes action on long-standing problems (budgets, immigration, energy). Can next week's election resolve this stalemate? It seems doubtful.

A Sign of the Court’s Polarization: Choice of Clerks

By ADAM LIPTAK

WASHINGTON — Each year, 36 young lawyers obtain the most coveted credential in American law: a Supreme Court clerkship. Clerking for a justice is a glittering capstone on a résumé that almost always includes outstanding grades at a top law school, service on a law review and a prestigious clerkship with a federal appeals court judge.

Justice Clarence Thomas apparently has one additional requirement. Without exception, the 84 clerks he has chosen over his two decades on the court all first trained with an appeals court judge appointed by a Republican president.

That unbroken ideological commitment is just the most extreme example of a recent and seldom examined form of political polarization on the Supreme Court. These days the more conservative justices are much more likely than were their predecessors to hire clerks who worked for judges appointed by Republicans. And the more liberal justices are more likely than in the past to hire from judges appointed by Democrats.

Each justice typically hires four clerks a year. Since Chief Justice John G. Roberts Jr. joined the court in 2005, Justice Antonin Scalia has not hired any clerks who had worked for a judge appointed by a Democratic president, and Justice Samuel A. Alito Jr. has hired only two. At the other end of the ideological spectrum, only four of Justice Ruth Bader Ginsburg’s clerks on the Roberts court came from judges appointed by Republicans. The early data on President Obama’s two appointees, Justices Sonia Sotomayor and Elena Kagan, show a similar pattern.

By contrast, Chief Justice Warren E. Burger, a conservative appointed by President Richard M. Nixon who led the court from 1969 to 1986, hired roughly even numbers of clerks who had worked for judges appointed by Democrats and Republicans. Judge Richard A. Posner, a generally conservative judge appointed to the bench by President Ronald Reagan, clerked for Justice William J. Brennan Jr., a liberal.

The recent divide in the selection of clerks amplifies the ideological rifts on a polarized court, one political scientists say is the most conservative in recent memory. And it echoes as clerks go on to prominent careers in government, the legal academy and major law firms.

David J. Garrow, a University of Cambridge historian, said the court had in this way started to mimic the political branches of government.

“We are getting a composition of the clerk work force that is getting to be like the House of Representatives,” Professor Garrow said. “Each side is putting forward only ideological purists.”

Supreme Court law clerks share the justices’ chambers, do much of their work and influence their thinking. They make recommendations about which cases the court should hear, help prepare the justices for oral arguments, discuss the cases with them and draft major portions of the opinions and dissents.

“You can’t possibly delegate as much as the justices do without turning over a degree of responsibility,” said Lawrence Baum, a political scientist at Ohio State who has published empirical studies of Supreme Court clerks.

Influencing the Law

Indeed, the polarization among law clerks has had consequences for the development of the law, a 2008 study published in the DePaul Law Review found. The presence of clerks who identified themselves as Democrats made liberal votes from the justices for whom they worked more likely, the study found. The opposite was true, too.

A handful of federal appeals court judges known as feeder judges are gatekeepers. J. Michael Luttig, for instance, produced more than 40 Supreme Court clerks in his 15 years on the federal bench, with 33 of them going to work for Justices Thomas or Scalia. Mr. Luttig, now general counsel of the Boeing Company, said the justices’ overall hiring practices reflected a fundamental shift.

“As law has moved closer to mere politics, political affiliations have naturally and predictably become proxies for the different political agendas that have been pressed in and through the courts,” Mr. Luttig said. “Given this politicization, it should come as no surprise to learn that the more liberal judges tend both to hire clerks who would self-describe themselves as Democrats and to hire clerks from other judges who would likewise self-describe themselves as Democrats, and vice versa for the more conservative judges.”

But ideological orthodoxy can dampen the robust discussions in chambers that clarify issues and shape rulings. Justice Scalia for instance used to seek out candidates from the opposite ideological camp when he served on a federal appeals court in Washington and in his early years on the Supreme Court.

“He made it a point of telling me that I was his token liberal,” said E. Joshua Rosenkranz, who clerked for Justice Scalia in 1986, his last year on the appeals court. “To his credit, I’m sure it was largely because he wanted to be sure he always heard the arguments against the positions he was taking.”

The politics do not stop when clerks leave the court. Though a clerkship is a ticket to a law firm job that can include a $250,000 signing bonus, many former clerks take positions consistent with their former bosses’ ideological leanings in the legal academy, the government and elsewhere.

Laura Ingraham, the conservative political commentator, served as a law clerk to Justice Thomas, for instance. So did John C. Yoo, the Bush administration official who provided legal advice about interrogation practices.

The clerks who do join law firms often form ideological clusters. According to a study published last year in the Vanderbilt Law Review, several of the leading firms — Kirkland & Ellis, Sidley Austin and Jones Day — have largely hired clerks from the more conservative justices. Others — including Wilmer Cutler Pickering Hale & Dorr and Jenner & Block — have tended to hire from the more liberal justices.

The rise of “politically oriented practice groups,” the study said, reinforces the impression that the court is “a superlegislature responding to ideological arguments rather than a legal institution responding to concerns grounded in the rule of law.”

For his part, Justice Thomas has said that choosing clerks is like “selecting mates in a foxhole.”

“I won’t hire clerks who have profound disagreements with me,” he said at a luncheon in Dallas a decade ago. “It’s like trying to train a pig. It wastes your time, and it aggravates the pig.”

Three members of the current court — Chief Justice Roberts and Justices Kagan and Stephen G. Breyer — are themselves former Supreme Court clerks. So were Justice John Paul Stevens, who retired in June, and Chief Justice William H. Rehnquist, who died in 2005.

Sometimes it seems that a Supreme Court clerkship has become a prerequisite to a seat on the court. The three candidates on President Obama’s short list to replace Justice Stevens — Justice Kagan, who joined the court in August, and Judges Merrick B. Garland and Diane P. Wood — had all served as Supreme Court clerks (and all to liberal justices).

Indeed, if Justice Kagan’s recent hiring is any guide, a Supreme Court clerkship may even be a prerequisite for a Supreme Court clerkship. Three of her four clerks have completed clerkships with other members of the court, Justices Ginsburg, Breyer and Anthony M. Kennedy.

Justice Kagan’s hiring is telling and savvy. It immediately aligns her with the two more senior justices on the court’s liberal wing — Justices Ginsburg and Breyer. And her hiring of a clerk who worked for Justice Kennedy will provide insights into the methods and thinking of the court’s swing justice.

Delegated Duties

“The reason why the public thinks so much of the justices,” said Justice Louis D. Brandeis, who served from 1916 to 1939, “is that they are almost the only people in Washington who do their own work.”

These days, respect for the court must be grounded on other factors. Opinion writing is largely delegated to clerks, and Chief Justice Rehnquist candidly acknowledged that the justices’ chambers were “a collection of nine autonomous opinion-writing bureaus.”

With the departure of Justice Stevens, it appears that none of the justices routinely write first drafts of their opinions. Instead, they typically supervise and revise drafts produced by their clerks.

A few decades ago, the court decided 150 cases a term. That number has dropped by about half, meaning each justice must write about eight majority opinions a term. Yet the practice of entrusting much of the drafting to clerks remains entrenched.

“We have created an institutional situation where 26-year-olds are being given humongous legal authority in the actual wording of decisions, the actual compositional choices,” Professor Garrow said.

The justices forbid their current clerks to talk to the press, and most former clerks refuse to discuss the work they performed for living justices in any detail. But Artemus Ward and David L. Weiden received responses from 122 former clerks to a question concerning the drafting of opinions for their 2006 book “Sorcerers’ Apprentices.” Thirty percent of the clerks said their drafts had been issued without modification at least some of the time.

Reviewing the book in The New Republic, Judge Posner, a close student of the court, wrote that “probably more than half the written output of the court is clerk-authored.”

Justice Ginsburg, a famously hard-working justice, described her own habits in an interview with Todd C. Peppers, who teaches public affairs at Roanoke College, for “Behind the Bench: Portraits of United States Supreme Court Law Clerks and Their Justices,” a book to be published next year by the University of Virginia Press. Justice Ginsburg said she was an energetic supervisor and editor who made sure the final product faithfully reflected her views. But the initial draft, she said, is prepared by a clerk.

“I write the opening,” Justice Ginsburg said. “It will be anywhere from one to three paragraphs. It’s kind of a press release, and it will tell you what the issue was and how it was resolved.”

Then she said she provided a law clerk with a detailed outline. “Sometimes, to my delight, they will give me a draft that I can make my own version through heavy editing, but I don’t have to redo it,” Justice Ginsburg went on. “I’d say it’s a good year if I have two law clerks that have that skill.”

Polarized ‘Feeder Judges’

There are about 160 active federal appeals court judges and more than 100 more semiretired ones, yet more than half of the clerks who have served on the Roberts court came from the chambers of just 10 judges. Three judges accounted for a fifth of all Supreme Court clerks.

There is ideological polarization among the feeder judges just as there is in the larger population. Judge Garland of the District of Columbia Circuit, appointed by President Bill Clinton, has sent 21 clerks to nine justices in the Roberts court years, but 17 of them went to members of its liberal wing.

On the other hand, Judge Alex Kozinski of the Ninth Circuit, in San Francisco, appointed by President Ronald Reagan, sent 13 clerks to the court in those years, but only one to the court’s liberal wing.

In a 1998 interview published in The Green Bag, a law journal, Judge Kozinski, a generally conservative judge on a court with a reputation for liberal decisions, said he took account of ideology in hiring clerks, giving “an extra measure of consideration to conservative and libertarian law students” in considering whom to hire.

“There are a lot of liberal judges out there,” he added.

Judge J. Harvie Wilkinson III, appointed to the Fourth Circuit in Richmond, Va., by President Reagan, has sent clerks to justices across the ideological spectrum.

“I’ve tried in my own hiring on the circuit court level not to put an ideological litmus test on anyone I’ve hired,” Judge Wilkinson said in an interview. “Law is a craft and profession that in many ways transcends philosophy.”

Some 1,000 people apply for Supreme Court clerkships each year, and the usual practice is to apply to all of the justices. Put another way, justices cannot tell anything about applicants’ ideological leanings from the fact that they applied.

Lacking other information on that score, the justices seem to look to the ideology of the feeder judge, Professors Baum and Corey Ditslear wrote in a study published this year in The Justice System Journal.

“The identity of the judge with whom a clerk works has become more valuable as a source of information about the clerk’s proclivities,” they wrote.

Nonpartisan Past

The stark political divide among the clerks is recent.

“The Supreme Court clerkship appeared to be a nonpartisan institution from the 1940s into the 1980s,” according to detailed data in the Vanderbilt study.

Over the Roberts court years, by contrast, none of the five more conservative justices — Chief Justice Roberts and Justices Thomas, Scalia, Alito and Kennedy — hired more than 20 percent of their clerks from judges appointed by Democrats. Three of the more liberal justices — Justices Stevens, Ginsburg and Sotomayor — hired 12 percent to 35 percent of their clerks from judges appointed by Republicans.

Only Justice Breyer hired roughly half of his clerks from judges appointed by presidents of each party.

The Justice System Journal study, which considered the 10 years ending in 2005, found “a growing polarization in the system.” In particular, those data “suggest a high level of bipartisanship for Breyer and a lack of bipartisanship for the relatively moderate Kennedy.”

The ideological divisions continue after clerks leave the court, another recent development.

Clerks from conservative chambers are now less likely to teach, according to the Vanderbilt study, which looked at data through 2006. If they do, they are more likely to join the faculties of conservative and religious law schools. Republican administrations are now much more likely to hire clerks from conservative chambers, and Democratic administrations from liberal ones. Even law firm hiring splits along ideological lines.

Political polarization among Supreme Court clerks may be curious, but is it consequential?

According to the DePaul study, by Professor Peppers and Christopher Zorn, the political leanings of law clerks influence the votes of Supreme Court justices. The study used information about political party affiliations collected from more than 500 former clerks and standard measures of judicial ideology.

“Over and above the influence of the justices’ own policy preferences,” the study concluded, “their clerks’ policy preferences have an independent effect on their votes.”

Everything else being equal — the justice, the year, the case — the presence of additional liberal clerks in a given justice’s chambers makes a liberal vote more likely, the study said, while the presence of additional conservative clerks pushes justices in the opposite direction.

Judge Guido Calabresi, who sits on the federal appeals court in New York and has placed some 30 clerks with the justices, overwhelmingly with the more liberal ones, said he “has no litmus test” and hires “clerks who are conservatives and clerks who are liberals.”

At the Supreme Court, Judge Calabresi continued, the ideological leanings of clerks may sometimes have an impact.

“To the extent that justices are really strong, it doesn’t matter,” he said. “To the extent that justices are uncertain or weak, it can make a difference.”