Heritage Foundation's Clerkship Boot Camp

It's fine for ideological groups to try to teach their ideas, including to interested future law clerks -- but not to try to limit how the students use those ideas.

|The Volokh Conspiracy |

I just heard Adam Liptak of the New York Times talking about this on NPR tonight, and then tracked down his New York Times article; here are what seem to be the facts:

The closed-door "training academy" was aimed at a select group: recent law school graduates who had secured prestigious clerkships with federal judges. It was organized by the Heritage Foundation, a conservative group that has played a leading role in moving the courts to the right, and it had some unusual requirements.

"Generous donors," the application materials said, were making "a significant financial investment in each and every attendee." In exchange, the future law clerks would be required to promise to keep the program's teaching materials secret and pledge not to use what they learned "for any purpose contrary to the mission or interest of the Heritage Foundation."

Some thoughts about the program as reported, which has apparently now been abandoned.

[1.] I think it's fine for ideological groups to try to teach future judicial clerks whatever ideas they like, whether about originalism, textualism, living constitutionalism, or what have you. Doubtless those groups want to influence the law that way, likely not by influencing judges (clerks have very limited influence over their judges' opinions, and the program is likely to have limited influence over the clerks' opinions), but by making the clerks better at making certain arguments that the judges want to make already. But in any event trying to influence the law through education is quite legitimate—just as it's legitimate for Harvard or Yale law professors, who know that many of their students will become clerks, to teach seminars that spread ideas that they think are sound. (Professors at law schools have some extra obligation, which ideological groups don't have, to provide students with a broad range of ideas, but they can certainly make sure to include and stress the ideas that they believe to be particularly wise.)

[2.] I think it's fine for liberals to do this as well as conservatives, but conservatives have an extra reason to do it: The teaching at most of the top law schools that produce the great bulk of judicial clerks generally leans left (you can like that or not, but I think it's pretty clearly so), so conservatives might well want to make sure that interested students get a good perspective on conservative views as well as on liberal views. Groups on the far left, or libertarians, or people who have other views that are likely undertaught at law schools may of course also take the same view.

[3.] Indeed, the judges who hire law clerks will likely want them to know more about various approaches to the law, whether they learn that in ideological programs or nonideological ones (if such things exist). Of course, conservative judges will want to make sure that their clerks are familiar with approaches that conservative judges tend to favor, since then the clerks will do a better job. But liberal judges will find it useful, too, for their clerks to understand various approaches. Sometimes, for instance, even liberal judges may want their clerks to draft opinions using approaches commonly associated with conservatives, such as originalism. And sometimes liberal judges may want their clerks to draft opinions effectively responding to such approaches.

[4.] A few people have tried to label this as "indoctrination," but that strikes me as quite inapt. The students are well-educated, generally highly intelligent adults; they aren't impressionable schoolchildren or laypeople easily blinded by professionals. They already largely believe in the things that the group wants to teach them; they go to learn how to better reason and argue in support of those beliefs. (Some may also go to make professional connections, but that surely isn't conducive to indoctrination, either.)

[5.] The real problem—and it's a doozy—is with the pledge, at least as it has been reported. Law clerks have a professional duty to do the best work they can for their judges. Lawyers have a professional duty to do the best work they can for their clients. If future clerks and lawyers learn some analytical tools or some ideas, they can't ethically promise to somehow withhold those tools or ideas from their bosses or their clients. And teachers can't ethically ask for such a promise (even if the promise is legally unenforceable).

[6.] The demand for a promise to keep the materials secret may also be wrong, though something depends on just what is being kept secret. If, for instance, there are some unpublished materials that the students are being asked not to distribute further, that's fine; on the other hand, if they are being asked to keep secret the general curriculum, that strikes me as troubling. Certainly they have to be prepared to answer their judges' questions about this, if the judges want to ask; and beyond that, this sort of secrecy is likely to breed unnecessary distrust.

But in any event, the key problem, as I said, is #5. One can imagine some situations in which people might be ethically required (or at least allowed) not to use certain knowledge in certain contexts, even for the benefit of clients—but this isn't one of them.