Are you an attorney who has accepted a clerkship with a federal judge in 2019? Congratulations! The Heritage Foundation has a program just for you. At the conservative think tank’s Federal Clerkship Training Academy, you’ll learn how to “excel as clerks” from “distinguished judges” on the courts of appeals and professors at “prominent law schools.” All you need to do is sign a strict nondisclosure agreement swearing that you won’t reveal who teaches the academy or what they say, and vow that you will not use any information you receive “for any purpose contrary to the mission or interest of The Heritage Foundation.”
This clerkship boot camp has set off alarm bells on the left, and for good reason. While all clerks begin their jobs with a set of ideological convictions, they’re typically expected to suspend their biases upon entering their judge’s chambers. Heritage has dropped that pretense: It demands that all participants in its “academy” use what they learn to advance the group’s mission, which corresponds almost perfectly with the current GOP platform. As NYU School of Law professor Melissa Murray noted, the Heritage academy is another phase in Republicans’ weaponization of the courts. It is designed to indoctrinate a new class of clerks with reactionary views that they are expected to implement through their work in the judiciary.
To understand why this program is so disturbing, it’s important to remember that clerkships are supposed to be apolitical. To cynics, that might sound like a joke: Every year, scores of judges select clerks from the Federalist Society, a network for conservative lawyers that’s closely aligned with the Trump administration. Nobody seriously expects these Federalist Society alumni to shed their partisan principles on day one. But traditionally, most clerks really have set aside their priors to follow the lead of their judges. Clerks might maintain a certain jurisprudential philosophy, like originalism, but they aren’t supposed to start the gig hoping that, say, businesses always win or Democrats always lose.
Even if this impartiality is a fiction, it’s a useful one, which Heritage seems intent on shattering. The organization opposes LGBTQ equality, unions, reproductive rights, immigrant rights, and the Affordable Care Act, while supporting capital punishment, deregulation, gun control, and disenfranchisement. Its advocacy wing lobbies vigorously in favor of Republican politicians. And clerks who attend the academy are required to apply their knowledge to the furtherance of these beliefs. That’s antithetical to the premise not just of clerkships, but of the ostensibly independent federal judiciary.
Jon Bourgault, an attorney who clerked on the Rhode Island Supreme Court and the 3rd U.S. Circuit Court of Appeals, agreed that this boot camp further threatens the already-battered institutional legitimacy of the courts. “I find the idea of this program so distasteful,” he told me. Bourgault pointed out that the academy application boasts that participants will learn about “originalism, textualism, habeas corpus, the Bill of Rights, and other substantive legal and practical subject matter” (an incredibly broad category). “The list of topics suggests that they want to teach clerks certain approaches to legal analysis,” he said, “which further suggests they’re trying to influence the outcome of cases.” Bourgault continued:
When I was clerking, if someone had tried to persuade me to take a particular approach to a case my judge was sitting on, I would have reported that person to law enforcement and (if they were a lawyer) the appropriate disciplinary body. It hardly seems more appropriate to try to sway clerks in their approach to cases in a more hypothetical sense.
I spoke to about these issues with a law professor who previously clerked for a federal district judge, and now works closely with conservative and libertarian campus groups, but wanted to maintain anonymity for fear of poisoning these relations. She told me that, above all else, the opacity of the program startled her. “What worries me about this most is the nondisclosure agreement,” she told me. “It suggests to me that they’re not doing the sort of ideological outreach” that even organizations like the Federalist Society do to bring in varying viewpoints. She noted that program focuses on originalism, but apparently only the kind that leads to conservative results, even though there are plenty of liberal originalists.
“A clerkship is a time to start choosing what kind of lawyer you’re going to be,” she said. “Will I be someone who is open to [conflicting] ideas and other people” who disagree with me? Or “will I act in a system that’s supposed to be adversarial and transparent, but participate in activities that are opaque” where nobody is challenging preconceived opinions? If a future clerk is interested in originalism, she said, “there are places to learn about it that are far less closed off than this program.”
These concerns are unlikely to prevent the rising class of conservative clerks from flocking to this academy, or disturb their judges. Many of Donald Trump’s judicial nominees are openly political (until they appear before the Senate Judiciary Committee, at which point they tiptoe up to the line of perjury to deny their partisan pasts). One is an anti-gay blogger who wrote of his desire to “gag” Rep. Nancy Pelosi; another, later withdrawn, described Justice Anthony Kennedy as a “judicial prostitute.” Several, including newly minted Supreme Court Justice Brett Kavanaugh, previously worked as Republican operatives. Britt Grant, whom Trump installed on the 11th U.S. Circuit Court of Appeals, did policy work for the George W. Bush White House. Grant recently circumvented Harvard Law School’s new clerkship hiring plan, which is designed to make the process fairer, to hire an anti-abortion activist.
Partisan judges hire partisan clerks. Judge James Ho, whom Trump placed on the 5th U.S. Circuit Court of Appeals in December, has already described abortion as a “moral tragedy” and declared that rich people must buy elections to protect themselves from regulations. Upon joining the bench, Ho hired Josh Hammer, an acolyte of Ben Shapiro and Erick Erickson. In 2015, Hammer wrote that Duke University’s plan to play the Muslim call to prayer would be “an affront to the University’s Christian roots” and “an unnecessary elevation of a minority faith” that “reeked of terrible timing following the recent massacres by Islamic terrorists in Paris.” He has also called Democratic Sen. Richard Blumenthal a “baby-killer extraordinaire” and boasts on Twitter that he owns “a Colt .45 named Scalia.” His rhetoric is similar to the bombast that dominates Ho’s opinions.
Heritage’s academy marks an attempt to train a cadre of clerks who will bolster their boss’ conservative instincts while injecting the group’s principles directly into the law. The details of this program, its instructors, and materials may be confidential, but the goal is quite clear. Heritage wants to provide Trump’s judges with a batch of clerks who are eager—and in fact, contractually obliged—to impose its “mission” on the federal judiciary.
