Former Judicial Clerks: Creating Legacies For Generations - Above the Law

"Yet history is littered with presidential miscalculations. President Eisenhower famously called his appointment of Earl Warren to Chief Justice one of his " biggest mistakes," as Warren became a liberal stalwart for over a decade. Justices Stevens and Souter, both nominated by Republican presidents, evolved into some of the Court's most liberal members. Had Republican presidents consistently installed reliably conservative justices since the mid-20th century, the Court would have been exponentially more conservative than it actually was."

"But presidential legacy is only part of the story. The judges themselves have developed their own succession strategies. In recent years, a striking pattern has emerged: Supreme Court justices now appear ready to retire only with tacit-or perhaps explicit-assurances that they will be replaced by someone they helped shape, typically a former clerk. Since Justice Kennedy retired after the 2017 term, this has become the norm rather than the exception."

"Kennedy's retirement exemplified this new dynamic. He secured not one but two former clerks in succession: Justice Gorsuch filled Justice Scalia's seat, which had remained vacant longer than any in Court history, and Kennedy's own seat went to Justice Kavanaugh. These consecutive Kennedy-clerk appointments represented a carefully orchestrated transition, a carrot from President Trump to convince Kennedy to step down with his legacy intact."

Presidential appointments to the federal judiciary, especially Supreme Court justices, produce enduring influence because of life tenure, turning each nomination into a generational legal bet. Historical nominations have sometimes backfired when appointees shifted ideological direction, as with Earl Warren, Stevens, and Souter. In recent years, justices have developed succession strategies, delaying retirement until assured of like-minded successors, often former clerks. Since Justice Kennedy's 2017 retirement, that pattern has increased. Kennedy helped secure two of his clerks in successive appointments, creating a planned transition that allowed a president to install reliably conservative justices while preserving Kennedy's legacy.

Read at Above the Law