Conservatives have been coveting federal judgeships for years. Since the 1980s, they’ve invested in networks and infrastructure, developing a conservative pipeline to federal clerkships and judgeships. These efforts have been led by the Federalist Society, generally. Its long-time head, Leonard Leo, is now among Trump’s most critical advisors—and his kingmaker, judicially speaking.
Most of the Right’s efforts to produce bench-worthy specimens are in the open. Federalist Society chapters at law schools entertain regular visits from conservative judges and thinkers, for example. Their back-channel efforts have been assumed, but rarely exposed. Until the Heritage Foundation got a little too comfortable with how partisan conservatives’ approach to the judiciary is.
Heritage’s Federal Clerkship Training Program was established at donors’ behest with the purpose of indoctrinating law clerks. “Indoctrination” is not hyperbole here. The application asks them to explain conservative legal principles and name their favorite justice.
The since-revised language on Heritage’s site referred to its goal of sending graduates loyal to conservative views off to influence their judges. Although they initially defended the program, Heritage may now be re-evaluating more than its description.
Why is this such a big deal?
With rare exceptions, federal judges rely heavily on clerks, to the point of allowing them to draft opinions for them. At a minimum, judges seek clerks’ evaluations of the briefs before them. Some impose page limits. These may well shape how the judge sees a given case. The amount of influence clerks have is tremendous. Quantified, judges cast 4 percent more conservative votes during terms in which they hire their most conservative clerks.
At best, Heritage’s admittees don’t yet have firm ideas about clerking. That three-day training camp led by legal luminaries telling them to exert influence to advance conservative legal principles becomes defining, not least because of the the source. At worst, Heritage is successfully identifying Brett Kavanaughs—partisan hacks who’ll gladly toe the conservative line—and lining them up to take the bench at younger and younger ages.