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The Impact of the Feeder System on Female Judges and the Federal Judiciary, 1970-2014 Alexandra G

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The Impact of the Feeder System on Female Judges and the Federal Judiciary, 1970-2014 Alexandra G Journal of Gender, Social Policy & the Law Volume 24 | Issue 1 Article 2 2015 The olC lapse of the House that Ruth Built: The Impact of the Feeder System on Female Judges and the Federal Judiciary, 1970-2014 Alexandra G. Hess Follow this and additional works at: http://digitalcommons.wcl.american.edu/jgspl Part of the Civil Rights and Discrimination Commons, Judges Commons, Law and Gender Commons, Law and Race Commons, and the Law and Society Commons Recommended Citation Hess, Alexandra G. (2015) "The oC llapse of the House that Ruth Built: The mpI act of the Feeder System on Female Judges and the Federal Judiciary, 1970-2014," Journal of Gender, Social Policy & the Law: Vol. 24: Iss. 1, Article 2. Available at: http://digitalcommons.wcl.american.edu/jgspl/vol24/iss1/2 This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in Journal of Gender, Social Policy & the Law by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. Hess: The Collapse of the House that Ruth Built: The Impact of the Feeder System on Female Judges and the Federal Judiciary, 1970-2014 HESS 10/8/15 (DO NOT DELETE) 12/4/15 11:03 AM THE COLLAPSE OF THE HOUSE THAT RUTH BUILT: THE IMPACT OF THE FEEDER SYSTEM ON FEMALE JUDGES AND THE FEDERAL JUDICIARY, 1970-2014 ALEXANDRA G. HESS* I. Introduction ............................................................................................. 62 II. Terminology ........................................................................................... 65 III. The Creation of the ‘Feeder’ Clerkship ................................................ 66 A. Increasing Applicant Pool ............................................................ 66 B. Increasing Prestige of the Supreme Court Clerkship ................... 68 C. The Impact of Chief Justice Burger ............................................. 72 D. Politicization of the Supreme Court ............................................. 74 IV. Measuring Underrepresentation ........................................................... 77 V. The Collapse of the House that Ruth Built ............................................ 82 VI. Is it Purely a Question of Gender? ....................................................... 84 A. Factors to Consider ...................................................................... 84 B. Methodology ................................................................................ 85 C. Results .......................................................................................... 86 VII. Impact of Circuit Effects ..................................................................... 89 VIII. The Impact of Political Affiliation ..................................................... 93 IX. The Impact of Lag Effects .................................................................... 97 X. The Rise of the ‘Super-Feeder’ .............................................................. 98 XI. Conclusion .......................................................................................... 103 * J.D. 2015, Yale Law School. Special thanks to Anthony Cozart for his help with the regressions and to Sara Elenowitz for her data analysis assistance. I am also grateful to Ian Ayres, Linda Greenhouse, Robbie Kaplan, Judith Resnik, Kate Stith, Sopen Shah, and Meng Jia Yang for their insight and valuable comments. Finally, thank you to Carol, Carl, Robert, and Peter Hess and Caroline Elenowitz for their tireless editing and support. In loving memory of Frances Aaron Hess. 61 Published by Digital Commons @ American University Washington College of Law, 2016 1 Journal of Gender, Social Policy & the Law, Vol. 24, Iss. 1 [2016], Art. 2 HESS 10/8/15 (DO NOT DELETE) 12/4/15 11:03 AM 62 JOURNAL OF GENDER, SOCIAL POLICY & THE LAW [Vol. 24:1 The current [clerkship] system is not a pure or efficient market. In fact, the closest market analogy would be a once-a-year shopping spree in which hundreds of shoppers, each with different amounts of money, enter the corner grocery at different times and buy goods that are only partially visible, that are each unique, and whose prices and brand names may not reflect their true value.1 I. INTRODUCTION The process of applying to judicial clerkships is a well-known rite of passage for many law students. It brings equal measures of excitement and dread for students as they vie for prestigious clerkships and results in professors sending endless numbers of recommendation letters. Although there are 874 sitting federal judges2 with clerkships up for grabs each year, one clerkship seems to rule them all: the Supreme Court clerkship. Many aspects of the Supreme Court clerkship process have been carefully studied, including: the race, sex, and political ideology of the clerk pool3 and the efficiency (or lack thereof) of the clerkship selection process.4 But only recently has the conversation turned to the study of “feeder judges,” those Court of Appeals judges who send their clerks on to clerk for the Supreme Court. I examined one aspect of the feeder phenomenon that has not received any attention: the underrepresentation of female appellate judges as feeder judges. To date, scholars have discussed the history of the clerkship process and empirical studies have focused on proving the feeder phenomenon exists and analyzing whether the particular judges from whom 1. Trenton H. Norris, The Judicial Clerkship Selection Process: An Applicant’s Perspective on Bad Apples, Sour Grapes, and Fruitful Reform, 81 CALIF. L. REV. 765, 783 (1993). 2. See Fed. Judicial Ctr., History of the Federal Judiciary: Biographical Directory of Federal Judges, 1789-Present, FEDERAL JUDICIARY CENTER, http://www.fjc.gov/history/home.nsf/page/judges.html (last visited Aug. 31, 2015) [hereinafter Biographical Directory of Federal Judges] (listing all sitting Article III judges, both active and senior status). 3. See Christopher R. Benson, A Renewed Call for Diversity Among Supreme Court Clerks: How a Diverse Body of Clerks Can Aid the High Court as an Institution, 23 HARV. BLACKLETTER L.J. 23, 25-26 (2007). 4. See Richard A. Posner et al., The Market for Federal Judicial Law Clerks, 68 U. CHI. L. REV. 793, 799-800 (2001). http://digitalcommons.wcl.american.edu/jgspl/vol24/iss1/2 2 Hess: The Collapse of the House that Ruth Built: The Impact of the Feeder System on Female Judges and the Federal Judiciary, 1970-2014 HESS 10/8/15 (DO NOT DELETE) 12/4/15 11:03 AM 2015] COLLAPSE OF HOUSE THAT RUTH BUILT 63 justices take clerks reflect ideological polarization.5 This paper builds upon those previous works and contributes extensive new empirical data to the study of feeder judges. While some may argue that this concern over Supreme Court clerks and feeder judges is an act of legal navel-gazing, Ditslear and Baum give a compelling justification for the study of the feeder system specifically: It could be argued that there is no need for a more extensive analysis of the feeder phenomenon: it is a curiosity and nothing more. We think otherwise. The selection of law clerks, including the use of a feeder system, provides a window on the justices’ behavior. By learning what matters to the justices when they select clerks, we also learn about their goals as decision makers and the ways they make choices. The extent to which a feeder system exists and the attributes of that system also tell us about the linkages between justices and the judges who serve one level below them in the federal judiciary.6 Therefore, in order to examine this system, my analysis begins in 1970, the first year that a female judge sent a clerk to the Supreme Court,7 and continues through 2014, the last year of complete clerk data. I first examined whether female judges were underrepresented as feeders compared to their proportion of the federal appellate bench - the data revealed that until 1994 women had roughly demographically proportionate representation. But in 1994 there was a sudden sharp decline in female feeders, and their numbers have never recovered. Ironically, Ruth Bader Ginsburg caused this decline in female feeders – her elevation to the Supreme Court meant that the federal appellate bench lost its biggest female feeder ever.8 I then investigated why female judges were unable to fill the void left by Justice Ginsburg’s elevation. For this period, I collected demographic data on over one thousand Supreme Court clerks, the twenty-three Supreme Court justices and nearly two hundred appellate judges they clerked for, and the more than five hundred judges who sat on the federal appellate bench during this period. I then ran regression analyses to determine what measurable factors of an appellate court judge – including age, race, tenure on the bench, party of the nominating President, sex, circuit, having been a 5. See infra Part II(d). 6. Lawrence Baum & Corey Ditslear, Supreme Court Clerkships and “Feeder” Judges, 31 JUST. SYS. J. 26, 28 (2013). 7. Alexandra G. Hess, Analysis of Supreme Court Feeder System, 1970-2014 (unpublished data, on file with author). Judge Shirley Hufstedler of the U.S. Court of Appeals for the Ninth Circuit sent a clerk to Chief Justice Burger. 8. See infra Part III-IV. Published by Digital Commons @ American University Washington College of Law, 2016 3 Journal of Gender, Social Policy & the Law,
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