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How Law Clerks Influence HOW LAW CLERKS INFLUENCE: INFORMATION AT THE U.S. SUPREME COURT by CHRISTOPHER DAVID KROMPHARDT JOSEPH L. SMITH, COMMITTEE CHAIR STEPHEN BORRELLI RICHARD C. FORDING EMILY H. RITTER CHRISTOPHER ZORN A DISSERTATION Submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy in the Department of Political Science in the Graduate School of The University of Alabama TUSCALOOSA, ALABAMA 2015 Copyright Christopher David Kromphardt 2015 ALL RIGHTS RESERVED ABSTRACT The role of law clerks at the United States Supreme Court has long been a source of curiosity among observers and scholars alike. Of particular interest are what characteristics determine which applicants are selected to clerk and what influence clerks have on the justices’ decision making. Using a two-part framework that identifies information asymmetries, where clerks possess relevant information that they can transmit to their justices, and conditions under which this information leads a justice to learn about policies’ impact, I uncover evidence of a causal mechanism by which clerks wield systematic influence over the justices’ decision making. I show that information clerks convey that is derived from their ideological preferences and from their experiences and socialization influences their justices’ votes on the merits. In the concluding chapter, I argue that these findings shed light on the broader class of principal-agent relationships of which the justice-clerk dynamic is an example and discuss how law clerks pose an opportunity for scholars to learn how principals acquire and use information from their advisors. ii DEDICATION To Bud Fischer and Bonnie Irwin, who made graduate school sound like a good idea. They were right. iii ACKNOWLEDGEMENTS Personal and Professional My family and my friends, especially Erik Uribe and Chelsie Young, are the non- political science audience that keeps me grounded, although it is no fault of theirs when my thoughts are in a dataset somewhere. Emily Ritter, Joe Smith, and Greg Vonnahme were the project’s earliest supporters. I don’t know what they saw when I first started going around talking about law clerks, but their encouragement was vital. Todd Peppers, Art Ward, and Chris Zorn provided the inspiration for all my good questions, and, as my work progressed, they also became valued friends and sounding- boards. A special shout-out to the University of Alabama’s Amelia Gorgas Library for stocking Todd and Art’s books, which I have had checked out since 2010. Amanda Bryan deserves special mention. Her early enthusiasm for law clerks helped convince me that it was a cool topic. Other friends and colleagues who have inspired me to think about clerks in new ways are Erin and Max Hill, Wes Hutto, Michael Flynn, Steve Miller, Mark Owens, Chanley Rainey, Doug Rice, Laura Sojka, James Todd, and Joe Walsh. Paul Collins and David Klein were key players in the project’s development: Paul, whose data provided the alternative explanations to the story I was telling, and David, whose exceptional editorial advice should earn him the title of unofficial sixth iv member of my committee. Steve Borrelli, Heather Elliot, Rich Fording, Doug Gibler, and Hong Min Park were willing to help whenever I had a nagging issue. The project has benefited enormously from the feedback from conference and symposium audience members. The chance to present my work at Marquette University Law School has been a high point in my academic career, and I thank Todd and Chad Oldfather for inviting me. I was fortunate enough to sit in the back of the room with Larry Baum, Ryan Black, and Christy Boyd, whose good humor and insightful comments I only wish could accompany every academic panel I have attended. Others whose comments have made my conference experiences rewarding include Sara Benesh, Robert Howard, Michael Salamone, Amy Steigerwalt, Steve Wasby, Jennifer Williams, and Patrick Wohlfarth. Finally, I would like to acknowledge my officemates over the years, for enduring with good humor and minimal exasperation the thinking out loud that precedes most of my work: Wes, Chanley, James, Doug Pigue and Anderson Starling. Intellectual Debts I could not have conducted the research presented in this dissertation without other scholars generously sharing their data. Not having to worry about the basic building blocks of my research design freed me up to focus on making the new elements that I was adding as good as possible. First, Todd Peppers provided the full list of who all have served as clerks that I needed to operationalize my concepts. Knowing their names, when they served, and for whom, allowed me to collect additional background information on v these people, including their previous clerkship(s), sex, and later careers. These new data were necessary to describe clerk preferences and validate a new measure of clerk preferences. Second, almost from the beginning I have used Paul Collins’s data. His model has provided the consistent baseline to which I will repeatedly compared the effects of my variables. Finally, the Judicial Common Space and the Supreme Court Database are reliable resources whose quality and ease-of-use are easy to take for granted. This research is also indebted to work describing how clerks fit into the decision- making processes of the Supreme Court. When your goal is to try to explain what is going on inside a black box, it helps to have as much of an idea as you can about what that box looks like and how it works. The most fundamental guidance came from Todd Peppers’ and Art Ward and David Weiden’s books. These and other sources provide the background and anecdotes in Chapter Three that lay the microfoundation for the theory of information transmission, and this theory will be the source of my hypotheses about how influence occurred. On a similar note, reading articles in formal theory has helped teach me to appreciate the value of rigor when making assumptions and deriving hypotheses. As well, adapting some of the lessons I have learned from the formal theory literature on regulatory design and function would be a natural and exciting next step to the work I have done. I talk about some possible avenues of research in Chapter Five. Finally, work on clerk selection by Peppers and Chris Zorn and by Larry Baum and Corey Ditslear, while strongly supporting the finding that justices usually try to hire vi clerks who share their preferences, to me raise questions about when they choose not to hire identical agents—can this phenomena be described and what consequences for decision making stem from having clerks whose preferences diverged from the justice for whom they worked? These are the questions that stimulate and energize the inquiry presented in this dissertation. vii CONTENTS ABSTRACT........................................................................................................................ii DEDICATION....................................................................................................................iii ACKNOWLEDGEMENTS................................................................................................iv LIST OF TABLES..............................................................................................................ix LIST OF FIGURES.............................................................................................................x CHAPTER ONE: INTRODUCTION..................................................................................1 CHAPTER TWO: FIELDING AN EXCELLENT TEAM: LAW CLERK SELECTION AND CHAMBERS STRUCTURE AT THE U.S. SUPREME COURT..........................10 CHAPTER THREE: U.S. SUPREME COURT LAW CLERKS AS INFORMATION SOURCES AND JUSTICE DECISION MAKING..........................................................34 CHAPTER FOUR: FEMALE LAW CLERKS AND SUBSTANTIVE REPRESENTATION AT THE U.S. SUPREME COURT...............................................69 CHAPTER FIVE: LAW CLERKS AND INFORMATION AT THE SUPREME COURT..............................................................................................................................94 REFERENCES................................................................................................................100 viii LIST OF TABLES 2.1 The number of foxhole chambers assembled by a moderate justice...........................30 3.1 Logistic Regression of a justice’s decision to cast a liberal vote, 1985-2001.............59 3.2 Logistic Regression of a justice’s decision to cast a liberal vote, 1985-2001.............63 3A.1 List of Supreme Court Law Clerks with Common Space Scores.............................68 4.1 Descriptive statistics for dependent and independent variables, 1985-2001...............80 4.2 Logistic Regression of a justice’s decision to cast a liberal vote, 1985-2001.............86 ix LIST OF FIGURES 2.1-2.2 Justice and bloc ideological scores from 1969-2007.......................................26-27 3.1 Effects of increasing clerk and justice liberalism on the probability a justice casts a liberal vote, 1985-2001......................................................................................................60 3.2 Effect of increasing the average ideological distance between justice and clerks on the probability a justice casts a liberal vote in a conservative foxhole chambers, 1985- 2001....................................................................................................................................65 4.1-4.2 Hiring practices by sex by justice,
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