Counterpoint: Clerkships and Ideology

Egon's point regarding clerkships and ideology is well taken. The truth is that most cases are not ideologically charged, although it's been remarkable the number of ways in which the law can be made less progressive -- impacting things that are supposedly not controversial (Chevron deference, standing -- thus, btw, giving rise to a conservative/progressive 12(b)(6) -- qualified immunity, and pre-emption, to name a few).

But let us first admit that it is not, most often, the potential clerks doing the ideological litmus-testing: it's the judges. It's judges who first started using clubs like the Federalist Society to make their clerks ideologically pure. There's a great article about this in a recent edition of Georgetown Journal of Gender & the Law [SSRN version] with some alarming statistics about refusal to cross ideological lines which is particularly acute amongst the conservative Supreme Court justices. So while there's talk of students selecting based on ideology, it's partially (in my opinion) a way of tempering expectations given that it's well known that many judges do so.

But I also think he's overlooking some real moral dilemmas that may be involved. Obviously, if the law compels a result, it compels a result, and one's personal convictions ought not to be determinative. Given recent Senate Judiciary Committee hearings, I'm not sure one could argue otherwise. Nevertheless, I think one could at least say that reasonable people can and do disagree on certain legal questions, for reasons both mundane and profound. If the difference of opinion between judge and clerk is of the latter sort -- profound to the point where one wants to write out a 40-point list of issues that the opinion raises -- what then?