By: Ben Kane (Print Co-Editor in Chief)
The Heritage Foundation, a conservative political group, has shut down its law training academy for clerks of prominent federal judges after a New York Times report showed that graduates of the academy were producing more conservative verdicts.
Law academics and professors across the spectrum condemned the Federal Clerkship Training Academy, whose lack of transparency and ideological goals led to many labeling the training workshop as an indoctrination meant to mold and persuade minds that will hold powerful positions in the government in the future. Application materials and other information about the program have since been removed from the Heritage Foundation website.
The Heritage Foundation defended the relative secrecy of the program, saying that the security and integrity of it would be compromised by disclosing too much information. “It’s a private program, and that’s the way we want to keep it,” the Foundation said.
The application process itself raised concern among legal scholars who viewed it as a method for the Foundation to weed out non-conservative candidates. One of the required short essay questions asked about the importance of originalism, a critical conservative legal principle. The presence of this type of question raised concerns that it was being used as a method to separate candidates who were in support of originalism and those who were against it, and that the political leaning of the answer was key in deciding whether the applicant was accepted.
The think tank has been a leading source of conservative legal thought and has been instrumental in government since the Trump administration took over in 2017. They were responsible for curating the short list of Trump’s Supreme Court nominees after the unexpected death of Justice Antonin Scalia, which produced both Judges Brett Kavanaugh and Neil Gorsuch, who now sit on the Supreme Court.
“With lifetime appointments, all federal court judges, but most particularly Supreme Court justices, exert substantial influence on the development and application of the law over a long period, often for decades after the president who appointed them has left office,” the Foundation’s John Malcolm wrote in a commentary to the Daily Signal.
Other commentators argued that a partisan training for clerks could sway the verdict. “Some of these clerks are going to work for reasonably apolitical judges and Heritage wants to keep the particulars of this program under the radar because they aren’t satisfied with overrepresentation on the bench, they want a covert army of clerks writing memos to push up-the-gut judges toward conservative conclusions by cabining their options,” Joe Patrice of abovethelaw.com wrote.
The Foundation told applicants to the academy to promise that they wouldn’t use their training “for any purpose contrary to the mission or interest of the Heritage Foundation”. They were also informed that “generous donors” were making “a significant financial investment in each and every attendee,” the Times report said.
The backlash to the training program was swift and harsh throughout the political spectrum, with legal experts arguing that clerks with a high influence should not be privately trained by a campaign with clear political bias. “Law clerks are not supposed to be part of a cohort of secretly financed and trained partisans of an organization that describes itself on its own web page as ‘the bastion of the American conservative movement,’” Stanford Law professor Pamela S. Karlan said.
Jon Bourgault, who clerked in both the Rhode Island Supreme Court and worked in the 3rd US Circuit Court of Appeals, argues that these type of programs tatter an already broken federal court system. “The list of topics suggests that they want to teach clerks certain approaches to legal analysis, which further suggests they’re trying to influence the outcome of cases.”
“When I was clerking, if someone had tried to persuade me to take a particular approach to a case my judge was sitting on, I would have reported that person to law enforcement and (if they were a lawyer) the appropriate disciplinary body. It hardly seems more appropriate to try to sway clerks in their approach to cases in a more hypothetical sense,” he said in an interview with Slate.
Others didn’t see a problem law clerks being trained by a goal-oriented group. However, Carolyn Shapiro, a law professor at Chicago-Kent College of Law, said that the real issue arose from the secrecy. “I don’t think there’s anything intrinsically odd about an organization that has a point of view holding event to which law clerks or future law clerks are invited, but this reads like a kind of indoctrination.”
Although the Foundation’s mission for the training program said that it would be training future judges, however, a new study by Harvard has shown that clerks have an impact on verdicts made during their clerkship. “A justice would cast approximately 2.4% more conservative votes in a term when employing his or her most conservative clerks, as compared to a term in which the justice employs his or her most liberal clerks,” the study says.
As well, the study outlined that clerks with political persuasion actively attempted to sway their judge’s verdict as opposed to being given the responsibility to make said decisions. “We interpret these findings to provide suggestive evidence that clerk influence operates through clerks persuading their justice to follow the clerk’s preferred outcome, rather than through justices delegating decision-making to clerks,” the study continues.
A commentary written by Todd C. Peppers on the National Law Journal outlines the relationship between judges and their clerks. “The clerks are full of energy and ideas, but they often lack the training, experience or wisdom to understand the complex issues which come before a federal court judge. Over the course of the clerkship, a judge teaches and mentors the clerk. They work long hours together. They share lunches and conversation. Many judges invite clerks into their homes for holidays and consider them members of their court family long after their clerkships have ended.”
After the severe backlash from the greater legal community, the Heritage Foundation pulled practically all information of the program from their website, and Director of Media Greg Scott released a private statement discussing the program.
“Heritage is re-evaluating the Federal Clerkship Training Academy,” he said. “As a result, the program will not go on as scheduled.”