Friday, February 21, 2020

Three thought experiments: How can Congress structurally reform the federal clerkship program?

By Josh Blackman - February 21, 2020 at 01:02PM

It is difficult to describe to non-lawyers how significant a federal clerkship is. When I began my first clerkship, several non-lawyer relatives were shocked. They thought I was taking a clerical job, and would be stamping papers and making copies for a year. But a federal clerkship–often the first job a lawyer will ever hold–may be the most important job a lawyer will ever hold. A clerkship provides formative experience at the front lines of litigation to a wide range of cases. A clerkship stamps your resume forever with an imprimatur of success. A clerkship invites you into a close-knit group of alumni who can help advance your career. A clerkship gives you a new prestige, as those aspiring for clerkships will come to depend on you for references. And a clerkship imposes something of a prior restraint: in order to maintain the mystique and allure of that coveted position, clerks may embellish the positive aspects of the position, and may have incentives to stay quiet about the negative aspects of the position.

I am familiar with all of these elements, both from my own experiences, and from my interactions with clerks from other chambers. I clerked for two-years on the U.S. District Court for the Western District of Pennsylvania for Judge Kim R. Gibson. And I clerked for one year with Judge Danny Boggs on the U.S. Court of Appeals for the Sixth Circuit. I described my clerkship process at some length in this article, which I wrote shortly before I began teaching.

What follows is a thought experiment. I don't necessarily endorse all of the ideas I advance. I think some of them are quite problematic. But my goal is to highlight how structural reforms by Congress can perhaps alleviate some of the significant problems facing the federal clerkship program.

Problems facing the federal clerkship program

The federal clerkship program faces several major problems, which share a common thread: due to the unique nature of the judiciary, the clerkship process is immune from the conventional rules of human resources that exist in all other fields. This disparity manifests itself on several levels. First, judges and their staff are not governed by the usual rules of employment discrimination. Second, due to the need for confidentiality, some judges require their staffs to take codes of silence about what happens in chambers. Third, unlike with virtually all other federal jobs, clerkship positions need not be publicly advertised, and the application process can be shrouded in secrecy.

Generally, in well-functioning chambers, these three issues are not problematic. Judges will comport themselves responsibly with their staff and fairly consider a wide range of applicants. But, often chambers are not well-functioning. First, some judges have abused their staff in unconscionable fashions. I do not know how common this treatment is, because, second, many judges maintain strict confidentiality policies that chill reporting of misconduct. Call it a judicial code of omerta.

And the third problem creates a cascade of perverse incentives. The hiring of federal law clerks is unlike any other federal civil service job I am aware of. Generally, all government jobs are advertised well in advance. There is a fixed hiring deadline, a standardized application protocol, and a rigorous screening process. Federal clerkships are different. There is no public deadline to apply for clerkships, and judges often employ ad hoc, or secretive processes. Indeed, the hiring of federal clerkship resembles a short-term political appointment within the executive branch. Perhaps that analogy is apt.

Often, the only way to know that a judge is actually hiring is to get a tip from special insiders: namely former clerks who serve as something of a screening committee. Indeed, some judges will only hire clerks that come up through this pipeline. As a result, these gatekeepers wield an inordinate amount of power. And often, these gatekeepers have an incentive to maintain the appeal of that clerkship. They also have an incentive to minimize any problems with the clerkship process to maintain this power. Olivia Warren testified that Harvard Law School took no action after she raised concerns about her clerkship with Judge Stephen Reinhardt. I do not know why Harvard took no action, but I suspect that elite institutions have a perverse incentive to keep the clerkship pipeline flowing.

Thought Experiment #1: Congress could standardize the clerkship hiring process

At various points, some judges have agreed to "hiring plans," in which they would wait until certain dates before interviewing and/or hiring applicants. But these rules are completely unenforceable. And they are routinely ignored, with impunity. Applicants who try to comply with the plan are left at a disadvantage. Applicants who disregard the plan–perhaps aided by inside information–can easily beat the system without any consequences. The current cartel plan will soon implode.

My co-blogger Will Baude offers some proposals to promote transparency:

All judges agree to publicly post, on Oscar or the equivalent, when they are hiring law clerks and how many positions they are trying to fill. They also agree to post when the clerkships are full.

Will's proposal is a step in the right direction. My first thought experiment goes further.

Congress could, by law, establish a centralized process to hire law clerks. This system would not be voluntary. Law clerks who are not hired through this centralized process would not be eligible for federal service. Judges who violate the policy can be denied federal law clerks. Article III guarantees life tenure; it does not guarantee preferred staffing.

Congress would not need to start from scratch. The OSCAR system, with some modifications, will suffice. Congress could establish a reasonable protocol that roughly mirrors the hiring plan in effect when I graduated law school in 2009. First, applicants can submit applications to specific judges after their second year of law school is complete. (Not after 1L.) Second, judges can interview applicants over the summer and fall after the second year of law school. Third, offers cannot be made until (let's say) the first Monday in October.  This protocol would eliminate the insane process we live under now: judges are making offers to law students after their first semester of law school. Also, this process would eliminate many of the unique advantages bestowed by the institutional gatekeepers. Everyone would know what the deadlines are, and everyone would be able to apply.

Judges have attempted to self-regulate the hiring process for decades. And they have failed. Repeatedly. I see no problem with Congress intervening. Ultimately, judges would retain the power to decide who they hire. To be sure, judges have obligation to consider the huge swath of applications they receive. They can still hire their preferred applicants. But the process would at least offer the patina of neutrality.

I anticipate several objections to this proposal. First, some judges may argue that Congress should not be involved in the selection of law clerks. I disagree. Judicial independence only goes so far. Law clerks are federal civil servants. They are not political appointees. (Though some may fancy themselves in that fashion). Congress is well within its authority to intervene here–precisely because judges are unable to voluntarily coalesce around a fair hiring plan. We have a market failure, and Congress can fix it.

Second, some judges may object that this drawn-out hiring process will make it impossible to hire the best-and-the-brightest clerks. For the majority of law students, the idea of clerking for any federal judge is a dream. But for some judges, there is actually a competition for the top law students at elite law schools. The reason why some judges hire rising 2Ls is to prevent some other judge from snatching them up. Hiring the best and brightest is a badge of success for some judges, especially the so-called "SCOTUS feeders." Indeed, some students will have multiple circuit clerkships, as well a a Supreme Court clerkship lined up upon graduation.

My response: if all applicants are governed by the same standard, no one will be hired early. Every judge would have the same access to the top students. And judges would also have the benefit of 2L grades before making a decision.

Thought Experiment #2: Congress establishes criteria for hiring federal law clerks

In my experience, the majority of federal judges prefer to hire law clerks right out of law school. That is, clerks start working a few months after graduation. Generally, their only legal experience will have been a brief summer associate job after the second-year of law school. Perhaps they had a judicial internship. But for many law clerks, their first full-time job will be their clerkship. I've heard several defenses of this practice. Some judges say, "I want the clerks fresh so I can teach them." Other judges say, "I don't want to have to unteach them bad habits they've learned elsewhere." And so on.

I am really, really skeptical of both rationales. Judges, like professors, vastly overestimate their ability to teach. I know my limits. Most people arrive at graduate school with certain behaviors and tendencies, which are nearly impossible to break. The notion that any 3L is "fresh" is implausible. Moreover, students learn plenty of "bad habits" in law school. Indeed, legal practice can undo some of those habits. Every judge has specific nits: yes to oxford commas, no to split-infinitives, depart from the Bluebook for certain citations, etc. Judges can drill specific procedures, which any competent attorney can follow. But there is nothing special about those practices. Judges can impart other types of wisdom to young clerks, without regard to their "freshness."

Other judges prefer to hire law clerks with varying levels of experience. Some Circuit Court judges prefer, or perhaps require, a district court clerkship. (I think this option is prudent.) Other judges will hire people out of legal practice. And some judges maintain one or more career clerks. That is, clerks who are expected to work for several year. These clerks maintain continuity in chambers.

As it stands now, judges have unfettered discretion over their hires. What if Congress intervened here? Perhaps Congress could say that all law clerks must have at least (say) two years of post-law school experience. In that case, current law students couldn't even apply. Only those with the requisite experience could apply.

As things stand now, many law students who clerk have a law firm position waiting for them, in addition to a generous clerkship bonus. But under this proposal, the process would be inverted. Law students would have to work at a firm for two years, then take a break to clerk for a year, and come back. Presumably, firms would count that year-break towards the partnership track. And firms could still pay a clerkship bonus upon the associate's return.

This change could have one salutary effect. As a general matter, law students who go immediately into clerkships are in vulnerable positions. Their performance in the clerkship may decide the fate of their careers. A good recommendation can put them on the track to stardom. A lukewarm recommendation can mire them in mediocrity. This dynamic creates perverse incentives for clerks to keep quiet about abuse for fear of retaliation. But clerks with several years of experience would have a different standing. They will already have begun working, and have made names for themselves. A positive recommendation from a judge will be a benefit, but they can still stand on their own two feet. Moreover, two years in legal practice may provide clerks with the support needed to speak up. That is, there will be less fear of retribution if they know there is a position, and network of support, behind them. I am familiar with instances where law clerks were fired in the middle of a term; it was very, very difficult for them to find employment under those circumstances. My first proposal would immediately alter the power dynamics within chambers, and eliminate many of the strictures that allow abuse to transpire.

The objection to this proposal are obvious. Why should Congress be able to set minimum qualifications for whom judges hire? The federal government routinely establishes minimum qualifications for certain civil service positions, including for attorney-advisors. Skim through the DOJ career page. Positions routinely require several years of experience.

Requiring two years of experience is a reasonable qualification. I don't think attorneys can be judged based on their 1L grades or 2L grades. Allowing more time to develop will ensure that judges have the best of the best. Indeed, students who may not have been able to attend the most elite law schools, or struggled during 1L, but distinguished themselves in practice, will perhaps be able to obtain clerkships that were previously unobtainable.

I can think of another foreseeable objection. Judges want to hire who they want to hire. And generally, judges are not told "no." I think this general acquiescence towards judges helps breed the mentality that can lead to abuse in chambers. Robes mask fallibility. Telling judges "no" everyone now and then will promote some humility–a much needed feature on the bench. Indeed, one of the ways that gatekeepers maintain their influence is to avoid criticizing judges. This dynamic is especially present among former Supreme Court clerks, who seek to maintain the institution's aura. I frankly have never had this issue. I don't aspire to become a gatekeeper, and have no hesitance to criticize judges, or anyone else for that matter. Life tenure, in my case at least, helps–though I was never bashful before tenure.

Though Experiment #3: Congress could convert some, or all, law clerk positions from term clerks to career clerks

As a general matter, district court judges can have four staff members: either three law clerks and one secretary, or two law clerks and two secretaries. And circuit judges have five staff members: either four law clerks and one secretary, or three law clerks and two secretaries. My general impression is that more recent appointees from the digital age prefer to have fewer secretaries. Both judges I clerked for chose to have two secretaries.

There are two types of law clerk positions. First, there are term clerks. These positions last one or two years, but no longer. The expectation is that term clerks will leave after their term concludes. Second, there are career clerks. These positions last indefinitely, until either the judge, or the clerk, decides to terminate the relationship. The expectation is that career clerks will stay on for many years.

Some judges will hire a career clerk in the place of a secretary, and assign him or her "clerical" duties. Other judges will assign certain types of matters to a career clerk: for example, prisoner and pro se cases. Some career clerks may share work equally with the career clerks, but I think that arrangement is an outlier.

Consider a third thought experiment. What if Congress converted some, or all law clerk positions to career clerk positions? This change would work well with my second proposal: requiring clerks to have more experience. Generally, students right out of law school would not be drawn to a multi-year position in the government with little potential for advancement. Rather, I think the career position would be attractive to attorneys who want a change in their practice.

Would the judiciary be improved if the clerks were not right out of law school? I have mixed views. Without question, this third proposal would remove the prestige. The clerkship would no longer be considered an elite position. Budding superstars would not want to devote several years of their life for a career position, while their peers shoot to the top of the profession. I'm not sure if this consequence is all bad. Law clerks wield an inordinate amount of power. Some judges allow clerks to write opinions with little supervision. I am nervous that a bunch of twenty-somethings are deciding important questions of law. Removing these applicants from the clerkship pool may have a salutary effect on the stable development of law.

But I am also aware that career clerks can have agendas, and, over time, can capture the courts. This concern is not trivial. When I clerked, the Sixth Circuit hired certain staff attorneys to write opinions for non-argued cases. I soon learned that some of these attorneys had agendas, and would slowly develop their own bodies of case law that they would cite, and expand upon in future orders. Of course these opinions were non-precedential. But sometimes litigants cite those arguments, and panels adopt them. Maybe having term clerks with a short time-horizon would be better than having career-clerks who could capture the courts. I'm mixed.

Conclusion

I offer these three thought experiments to stimulate discussion. I don't propose that Congress take any action soon. Some of these ideas are probably non-starters. Others may be feasible. I welcome comments, especially from clerks or judges–email is fine.


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