The recent discovery of a “Federal Clerkship Training Academy” hosted by the Heritage Foundation has raised a great amount of controversy amongst the legal and political communities. The program targets recent law school graduates who have attained high-level legal clerkships with federal judges and ‘encourages’ them to advance the conservative mission of the Heritage Foundation. From the application process to the lessons taught within it, this program is undeniably designed to indoctrinate fresh clerks with views affiliated with the GOP. The Federal Clerkship Training Academy has been condemned for its secrecy and evidently biased teachings by an array of law professors, political scientists, and other lobbyist groups.
The program was exposed by an author from Slate Magazine in October 2018 and was swiftly picked up by a variety of reputable news publications such as The New York Times. Most members of the Heritage Foundation refused to comment when asked, yet the few who did denied any influence of partisanship in the program: “It’s a private program, and that’s the way we’d like to keep it,” said Breanna Deutsch, the communications manager for the Foundation. Despite their claims otherwise, the Heritage Foundation is in no way attempting to hide its partisanship. The Foundation directly states that its mission is to formulate and promote conservative public policies based on traditional American values. Even the descriptions for its internship and fellowship program encourage young conservative leaders to apply. It’s no wonder this training raised so many ethical concerns in politically influencing the legal system.
The application process for the program is quite unlike any other legal training academy in that it targets applicants with particular political beliefs. In one portion of the application, applicants were asked to discuss which United States Supreme Court justice they most agreed with in terms of jurisprudential philosophy and approach to judging and why. Another prompt asked about the applicant’s “understanding of originalism,” a persistent debate between liberal and conservative judges. Once accepted, attendees were also required to keep the materials provided to them strictly confidential and to not distribute them to any other person.
Pamela Karlan, a law professor at Stanford University, was one of the first to condemn the program, noting, “The idea that clerks will be trained to elevate the Heritage Foundation’s views, or the views of judges handpicked by the foundation, perverts the very idea of a clerkship.” Even direct supporters and members of the Heritage Foundation expressed their contention with the academy. Neal Katyal, a renowned lawyer and frequent speaker at the Heritage Foundation, declared he would no longer support the organization following the news of the program. Post-grads are arguably the most susceptible to influence during this period of entry-level legal positions as they decide what kind of lawyer they want to be. Targeting this susceptibility and aiming to influence amateur lawyers is exactly from where the questions on ethics arise.
Of course, the Federal Clerkship Training Academy would not be possible without the capital provided by Heritage Foundation investors. These donations fully paid for the travel expenses of attendees as well as their hotel rooms and meals throughout the three-day program in Washington, D.C. Similar to the trainees, the investors were also required to sign a confidentiality agreement to ensure their silence on the matter.
Some may argue that the level of influence a simple legal clerk has on a judge’s rulings is so minor that the outrage is exaggerated. Maya Sen, a political scientist at Harvard University, conducted a study that showed Supreme Court justices casting around 4% more conservative votes if they hired a conservative rather than a liberal legal clerk. Sen also analyzed the purpose and impact of the Federal Clerkship Training Academy: “Shifting the ideology of all Supreme Court clerks in any one direction would be significant, and it would make sense for ideological organizations to target not just Supreme Court law clerks, but also law clerks throughout the judicial hierarchy.”
The premise of the academy unequivocally fails to abide by the Code of Conduct regarding the ethics for federal judicial law clerks, specifically the Fifth Canon that “prohibits law clerks from engaging in both partisan and nonpartisan political activity.” The Fifth Canon also sets out that legal clerks may not display bumper stickers or yard signs of any particular political party. If something as simple as a sticker is considered a violation of the Code of Conduct, partaking in a training program funded by the donors of and organized by an organization that refers to itself as the “bastion of the American conservative movement” surely qualifies.
Image via Heritage Foundation.
As one can tell from the graphic above, the Heritage Foundation’s prestige and extensive membership sow the seeds of its influence in the political realm. This isn’t the organization’s first engagement with the United States’ legal system either – the Foundation has taken part in compiling lists of potential Supreme Court justices for numerous Republican presidents, including the list from which President Trump chose his two nominees. The Foundation consistently publishes commentaries on legal issues as well, whether it be reports on the poor rulings of Democratic Supreme Court justices or criticizing the lack of ‘law and order’ in the criminal justice system. Its interest in utilizing the United States’ legal and judicial systems to promote its conservative ideals is nothing less than conspicuous.
The Heritage Foundation decided to temporarily suspend the program for reevaluation shortly after its exposure to the public. Regardless, the program’s ill-judged creation must not be ignored. The Heritage Foundation’s academy raised questions about the future of judicial ethics, and put at stake the imperative of the judiciary to remain separate from politics.