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April 6 — Chief Judge Merrick Garland is “one of the nation's top feeder judges,” sending more than half of his clerks to the U.S. Supreme Court, David Lat, founder of the blog Above the Law, New York, told Bloomberg BNA April 1.
President Barack Obama nominated the U.S. Court of Appeals for the District of Columbia Circuit chief judge March 16 to fill the late Justice Antonin Scalia's seat .
But GOP senators have so far refused to hold confirmation hearings for the veteran judge .
The fact that Garland's clerks have gone on to clerk for justices of varying ideologies is telling, Lena Zwarensteyn of the progressive American Constitution Society, Washington, told Bloomberg BNA April 5.
Those include conservative Chief Justice John G. Roberts Jr., moderate Justice Sandra Day O'Connor, and liberal Justice Ruth Bader Ginsburg, according to a comprehensive Wikipedia list.
That shows that Garland seeks out, attracts and is able to work with people of various backgrounds and ideologies, Zwarensteyn said.
But while that diversity might indicate that Garland is a moderate, an article by anti-abortion publication Life News said that Garland's clerks have overwhelmingly served liberal Supreme Court justices.
Garland's “former clerks have gone on to serve liberal judges by a 3-1 margin,” the article said, suggesting that Garland isn't the moderate he's been billed as.
Still, Garland's status as a feeder judge shows that he's held in very high regard by both those in the legal profession and by the justices themselves, former Roberts and Garland clerk Colleen E. Roh Sinzdak told Bloomberg BNA April 4.
“A ‘feeder judge' is a lower-court judge with a strong track record of ‘feeding' or sending her clerks into Supreme Court clerkships, which are highly coveted and extremely prestigious positions,” Lat, whose novel Supreme Ambitions delves into the world of a fictional feeder judge, explained.
“There's no fixed number of feeder judges, but about a dozen lower-court judges are responsible for a disproportionate number of Supreme Court clerks,” he said.
According to a “new paper by Alexandra Hess, ‘since 1970, a small number of judges have sent an increasingly large percentage of Supreme Court clerks,' ” Lat said. For example, from 2009–2014, “eleven judges supplied over 70% of Supreme Court clerks and 90% of all Supreme Court clerks were fed by a total of twenty judges,” the article said.
Garland ascended to the bench in 1997 and has 71 former clerks. Of those, 42 have gone on to Supreme Court clerkships, according to research conducted by Bloomberg BNA.
And his record of sending clerks to the high court has increased in recent years.
During the 2010 term, eight chambers included a former Garland clerk: one was employed by Roberts, one by Ginsburg, one by Justice Stephen G. Breyer, and one by Justice Elena Kagan, while one was shared by Justices Anthony M. Kennedy and John Paul Stevens, and another shared by O'Connor and Justice Sonia Sotomayor.
Further, Lat notes that as of 2014, Garland was “the number one feeder judge.”
From 2009 to 2013, Garland sent 16 clerks to the Supreme Court, Lat wrote in 2014. Keeping in mind that Garland typically hires 4 clerks each year, that's 3.2 clerks sent to the Supreme Court each term during those years.
There are several reasons why Garland is a feeder judge, Roh Sinzdak, who herself went on to clerk for the Supreme Court, said.
On top of having good relationships with the justices, she said Garland has a wonderful reputation in general.
“Judge Garland is brilliant, careful, and extremely devoted to getting the law right,” Roh Sinzdak said.
“The judge was a demanding boss, but he is also extremely kind. He looks out for his clerks and it is a relationship that continues long after the clerkship,” she said.
She added that “this all makes him sound too good to be true, but Judge Garland is one of those rare people who lives up to the hype.”
That stellar reputation attracts many top law students, “and those law students are the candidates that typically go on to work at the Supreme Court,” Roh Sinzdak said.
But it's hard to tell if Garland's status as a top feeder judge will factor into the current debate over his confirmation hearing.
In and of itself, the number of clerks that Garland has “fed” to the Supreme Court doesn't mean that he should be confirmed, Zwarensteyn said.
Feeder judges in general “are some of the most highly regarded, well respected lower-court judges in the country,” Lat said.
“Many of them, like Judge Garland, eventually get nominated to the Supreme Court themselves,” he added.
But Zwarensteyn said the most pertinent aspect of Garland's feeder judge status is the fact that his clerks have gone on to serve ideologically diverse justices.
His clerks have served 10 justices: Roberts, and Justices Harry A. Blackmun, Breyer, Ginsburg, Kagan, Kennedy, O'Connor, Sotomayor, Stevens and David H. Souter, according to research conducted by Bloomberg BNA.
However, the Life News article puts more stock in the fact that most of his clerks have gone on to serve justices from the so-called liberal wing of the court.
“Of his former law clerks, 33 went on to serve liberal Supreme Court justices. Only 11 were hired by constitutionalists,” it said.
Garland has sent the most clerks to Breyer, Ginsburg, Kagan and Stevens, Bloomberg BNA's research shows.
That refutes Garland's reputation as a centrist, the Life News article said.
Still, Roh Sinzdak said that Garland's status as a feeder judge “is a good indication of how well he would fit in on the Supreme Court.”
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