The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
May Judges Consider Law Clerks' Political Speech in Hiring or Firing Decisions?
As Keith Whittington noted, some judges are refusing to hire students who they see as endorsing murder of civilians (or threatening to withdraw offers to such students):
Judges are looking at student actions in the wake of October 7th and drawing a line in the sand for those who would want to clerk for them. Judge Matthew Solomson said,
To me, it's a simple proposition that just like no judge would hire anyone who endorsed the KKK or the Nazis, anyone who endorses or approves or otherwise gives comfort to—in writing—Hamas, should not be hired.
Sarah Isgur reports on the Advisory Opinions podcast that Judge Lee Rudofsky has written to his own future clerks asking them to confirm that they have not condoned the October 7th massacre or engaged in acts of antisemitism or Islamophobia. He, quite appropriately, added that he had no problem with his future clerks holding or expressing a wide range of views about the Israeli-Palestinian situation and the current war, so long as they stopped short celebrating or advocating the targeting of civilians for abduction, torture, or death.
Some commenters on that thread suggested that this was an unconstitutional viewpoint-based test for government employment. I appreciate that argument, which I think is apt for many government jobs. But given the Court's caselaw, I don't think the First Amendment precludes such viewpoint-based criteria in a judge's employment decisions for law clerks.
The key precedents on this, I think, come from the line of cases dealing with political-affiliation-based hiring and dismissal of government employees. In these cases—Elrod v. Burns (1976), Branti v. Finkel (1980), and Rutan v. Republican Party of Illinois (1990)—the Court held that, generally speaking, such employees can't be hired or fired because of their party membership. But the Court recognized that there were exceptions for certain kinds of employees, including ones who work so closely with a high-level official in implementing the official's views that ideological compatibility is a legitimate employment criterion:
[I]t is … clear that the Governor of a State may appropriately believe that the official duties of various assistants who help him write speeches, explain his views to the press, or communicate with the legislature cannot be performed effectively unless those persons share his political beliefs and party commitments.
To be sure, this was said in the context of political beliefs, and judges' job isn't to implement their political beliefs. But in the course of applying and developing the law, judges do sometimes express their beliefs about law and justice. I think one could likewise say,
It is clear that a Judge may appropriately believe that the official duties of various assistants who help him draft opinions and recommend particular decisions to him cannot be performed effectively unless those persons share at least some of his basic beliefs about law and justice.
Indeed, in my experiences, quite a few judges and Justices—both liberal and conservative—have generally preferred to hire law clerks who share their broad ideological perspectives. Others hired law clerks without regard for ideology, or with little regard for ideology, but that has been seen as reflecting those judges' particular preferences; both approaches have generally been seen as acceptable. It is likewise constitutionally permissible, I think, if a judge wants to generally be open to hiring clerks with many views, but draws the line at those who have publicly expressed positions that the judge thinks of as radically unjust (such as endorsing the KKK, Nazis, or Hamas).
Whether the judges should do this, or should publicly announce that they are doing this, is a matter I leave to others. But I think that First Amendment law doesn't forbid them from doing this.
