But it has been almost 25 years since the last such appointment, of Justice David H. Souter in 1990. And it has been more than 50 years since a Democratic president last appointed a justice who often voted with the court’s conservatives: Justice Byron R. White, who was nominated by President John F. Kennedy in 1962.
Now, just as there is no Democratic senator who is more conservative than the most liberal Republican, there is no Democratic appointee on the Supreme Court who is more conservative than any Republican appointee. “It’s not coincidence,” said Lawrence Baum, a political scientist at Ohio State, “that the court is now divided along partisan lines in a way that hasn’t been true.”
In the last nine terms, the court’s current Republican appointees hired clerks who had first served for appeals court judges appointed by Republicans at least 83 percent of the time. Justice Thomas hired one clerk from a Democratic judge’s chambers, Justice Scalia none.
The numbers on the other side are almost as striking. Justices Ruth Bader Ginsburg, Sonia Sotomayor and Kagan hired from Democratic chambers more than two-thirds of the time. Justice Stephen G. Breyer is the exception: His hiring has long been about evenly divided.
When law clerks move on, their career paths seem subject to the gravitational pull of ideology. Clerks for justices appointed by Democrats work for Democratic administrations, law firm practices headed by former Democratic officials and law schools dominated by liberals. Clerks for Republican appointees often go in the opposite directions.
All of this is new, according to a detailed study in the Vanderbilt Law Review. “The Supreme Court clerkship appeared to be a nonpartisan institution from the 1940s into the 1980s,” it said.Liptak overlooks a major reason for the increased polarization: presidents have become more systematic in their efforts to appoint like-minded justices. George H.W. Bush blundered by heeding chief of staff John Sununu (an engineer with no legal background) and naming David Souter. Since then, presidents have been careful not to repeat the mistake.