New Study Adds to the Debate Surrounding Ideological Divides and the United States Supreme Court

Democrats Republicans boxingThe New York Times published an article detailing the results of a new study regarding the career paths of former United States Supreme Court clerks.  The study finds that “former clerks have started to take jobs that reflect the ideologies of the justices for whom they worked.”  The data collected show a shift in the career paths of clerks hired from 1990 and on:

 Until about 1990, the study shows, there was no particular correlation between a justice’s ideological leanings and what his or her clerks did with their lives.

 Clerks from conservative chambers are now less likely to teach. 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.

It is no secret that the justices have shown a greater propensity to hire clerks that share their ideological beliefs (as the article and previous studies explain).  Yet this newest study, which focuses on life post-clerkship, has alarmed those already worried about the strong ideological splits on the Court.  Says law professor William Nelson of NYU, “It’s cause for concern mainly because it’s a further piece of evidence of the polarization of the court.”

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Add Judges To The List of Professionals Who Must Take Care In Using Facebook

facebook-scales-2Professor Lisa Mazzie posted a blog entry back in September about the use of Facebook and other social networking websites by lawyers.  The post shed light on the trouble an attorney can face when the substance of his or her webpage falls short of professional standards.  As Professor Mazzie explained, postings that “criticize” judges, “reveal” client details, or “belie” statements made before a court can land an attorney in hot water.

Those facts should not surprise present and former Marquette students: we were presented with the professional dangers of social networking during new student orientation.

It likely was only a matter of time, but it seems that state ethics committees have turned their attention to the judiciary.  The Florida Judicial Ethics Advisory Committee released an opinion last month that, among other things, finds it inappropriate for a judge to “friend” lawyers on social networking sites when those lawyers may appear before that judge.

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The Wages of Speech

thumbnailCAJKLY1BApparently, the Wisconsin Supreme Court is not the only one sharply divided on an array of issues and fighting over questions of recusal. In Michigan, the Supreme Court voted 4-3 to require that individual justices who have denied a motion to recuse themselves explain the reason in writing and to permit the Court to overrule the refusal to step aside. A Detroit Free Press columnist says that the Michigan court has been characterized by “back-biting, name-calling and playground-level cruelty” and adoption of the rule did draw sharply worded dissents. Sound familar?

Locally, there appears to be a concerted effort (spurred, in part, by an internal memo circulated within the State Public Defender’s office) to seek the recusal of Justice Michael Gableman in a number of criminal cases because he has allegedly expressed a general bias against criminal defendants. Justice Gableman has refused to step aside (the rationale for the motions would apply in every criminal case), and it is unclear whether the Court can compel him to do so.

I think the controversy raises some interesting questions about the interaction between campaign speech and recusal. I am writing a paper on the topic and thought I’d test drive a few of the arguments here as applied to our local controversy.

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