Movin' on Up with the Federalist Society
Recommendations from professors with judicial connections are key for competitive clerkships. Clerks often provide the intellectual exchange that forms the basis of a judge's decision, and they frequently even draft opinions. Though each judge receives hundreds of applications, a few conservative judges seek out Federalists. Judge Michael Luttig on the Court of Appeals for the Fourth Circuit, for example, hires only students with membership in the Federalist Society or comparable credentials on their resumes. And almost all of Judge Luttig's clerks go on to clerkships at the Supreme Court. His unheard-of batting average is sustained because Judge Luttig diverts clerks who don't land a clerkship with other Justices to Justice Scalia (whom Luttig himself clerked for) and Justice Clarence Thomas. Justice Kennedy interviews applicants based on recommendations from a group of Federalist-friendly professors and Judge Kozinski, himself a former Kennedy clerk. Judge Kozinski stresses, however, that Federalist Society membership is only one factor. "If you are suggesting that it gets people jobs it's simply not true," Judge Kozinski says. "It's like saying you're in the Boy Scouts."
The Boy Scouts may be a good analogy for the clubbiness that exists among conservative clerks on the Supreme Court. Though the level of social cohesion changes from year to year, conservative clerks work and play together as a bloc in a way that moderate-to-left clerks generally do not. Most notable are the regular poker games held by clerks for Thomas, Scalia, Kennedy and Rehnquist. A recent clerk for a conservative Justice explained the alliance this way: "Conservatives tend to be team-oriented and rule-bound, whereas liberals tend to be odd and individualistic. Have you ever heard of a bunch of liberal people getting together and playing poker? They get together and go to protest marches. It's a simple fact of life." The other clerks don't bond because, except on abortion and states' rights cases, their Justices don't vote as a bloc. "The conservative clerks were a lot more strategic and a lot better coordinated than the liberal clerks," says one clerk about her time at the Court. Moderate-to-left clerks felt the clubbiness most keenly last year during Bush v. Gore. The conservative clerks and their Justices generally agreed with each other, but lack of alignment existed between some moderate clerks and their Justices. While Justice Kennedy is widely reported as having been the swing vote in the case, the conservative majority wouldn't have existed without the supposedly centrist Justice Sandra Day O'Connor. Her clerks disagreed with her but could not persuade her to join the splintered dissent, according to people who have spoken with O'Connor clerks as well clerks for other Justices.
These days, the right clerkships mean a straight shot into the White House. In the White House counsel's office, several young lawyers who suggest nominees for federal judgeships to the President have been actively involved in the Federalist Society. Among them are associate counsel Noel Francisco, 32 (Luttig/Scalia clerk); associate counsel Brad Berenson, 36 (Kennedy clerk); and Brett Kavanaugh, 35 (Kennedy clerk). In the Justice Department, 31-year-old R. Ted Cruz (Luttig/Rehnquist clerk), who helped prepare the briefs in the Florida election cases, is Associate Deputy Attorney General. And reviewing judicial nominees' written records is Assistant Attorney General for Legal Policy Viet Dinh, 33 (O'Connor clerk), a Georgetown professor who tried to obfuscate his politics at his confirmation hearing, claiming that "I am a member of the Federalist Society, and I do not know, quite frankly, what it all stands for."
Many young Federalists maintain their ties to the society after law school as officers in its fifteen "practice groups," which parallel the American Bar Association's committees to "improve" areas such as civil rights and religious liberties. Practice-group leaders are often connected to right-wing public interest law firms. Dr. Michael Greve, the co-founder of the Center for Individual Rights in Washington, DC, said Federalist discussions and debates in schools and practice groups have helped his organization conceive and shape litigation. "That is how I get ideas and sort of test them," says Greve, now at the American Enterprise Institute. And practice-group leaders, in conjunction with CIR, have been responsible for some of the greatest victories limiting Congressional authority. Solicitor General Olson, formerly the head of the federalism and separation of powers practice group, litigated the monumental Hopwood v. Texas decision, which put an end to affirmative action at the University of Texas. In 2000 Michael Rosman, vice chairman of the civil rights practice group and general counsel of CIR, led the fight to the Supreme Court that struck down a Violence Against Women Act remedy that allowed sexual assault victims to sue for damages in federal court. And last year, Michael Carvin, chairman-elect of the civil rights practice group, successfully brought Reno v. Bossier Parish School Board, a redistricting case that reduced the Justice Department's authority to require the creation of "majority-minority" voting districts.
Practice-group meetings are also a place for lawyers across the country to form alliances. One of the most important cases of the 1999 term had its genesis in such a meeting in Washington, DC, two years earlier. There, Jeff Sutton, a big-firm partner in Ohio who had clerked for both Justices Lewis Powell and Scalia, met Alabama Attorney General Bill Pryor. Pryor, a longtime Federalist who as a student founded Tulane's Federalist chapter, persuaded Florida Attorney General Bob Butterworth to hire Sutton to argue a case in which their states' interests had been consolidated, Kimel v. Florida Board of Regents. The five Federalist-friendly Justices on the US Supreme Court bought their separation-of-powers argument, which arguably became the harshest limitation on civil rights law enacted in the past twenty-five years. As a result, employees can no longer bring an action against states in federal court under the Age Discrimination in Employment Act. Sutton again argued for Alabama and, in University of Alabama et al. v. Garrett, successfully convinced the Court to strike down a part of the Americans With Disabilities Act. In a 5-to-4 vote this past February, the Court ruled that individual employees cannot sue their own states for damages in federal court. And this April, in a third case Sutton argued for Alabama, Alexander v. Sandoval, the Supreme Court eviscerated the right of an individual to sue for unintentional discrimination under a provision of the Civil Rights Act of 1964. The victories have put Sutton in good stead: President Bush nominated him to become a federal judge on the Court of Appeals for the Sixth Circuit.
Recently, liberals have been working to counteract the power of the Federalist Society [see sidebar, page 16]. But it will require a long, intensive struggle if those efforts are to be anywhere near as coordinated as those of their Federalist counterparts. Once young lawyers are brought into that world, they are unlikely to stray too far, as the case of Kristen Silverberg shows. After graduating from the University of Texas Law School, Silverberg, 30, became a clerk for Federalist Society regular David Sentelle, the DC Circuit Court judge who headed the judicial panel that appointed Ken Starr as an independent prosecutor. After her clerkship, Silverberg raised eyebrows when she chose to begin her law firm career at the undeniably liberal Williams & Connolly, which represented President Bill Clinton at his impeachment trial. She stayed a year, until Clarence Thomas granted her a Supreme Court clerkship--a rare feat for a Texas graduate in a Court where most clerks hail from Yale, Harvard, Stanford, Chicago and Columbia. There, Silverberg gained a reputation for being more moderate than Thomas's usual clerks. She then went to Austin to assist the Bush campaign, which tapped her to work against the Florida recount. Today she walks the halls of the White House as special assistant for policy in the office of the Chief of Staff.
One can never know precisely how personal experience motivates political values. But as of now, the most effective career path for young lawyers leads straight from the Federalist Society into the corridors of conservative power.