by on By April Xiaoyi Xu*
“I will always be your judge, and you will always be my clerk.”
—Justice Christina Wong Stinson to Audrey Coyne in David Lat’s novel Supreme Ambitions
Over the years, there have been many efforts to reform the American clerkship selection process. While many support regulating the judicial clerkship selection process, others vehemently oppose it, instead favoring a laissez-faire approach to hiring the nation’s most promising young lawyers-in-the-making.[1]
The latest attempt to regulate the U.S. judicial clerkship selection process, the 2018 pilot Law Clerk Hiring Plan, stipulates the earliest date that judges can begin hiring law clerks. For the Class of 2021, that date was June 15, 2020. In a few weeks, the Ad-Hoc Committee on Law Clerk Hiring will reevaluate the 2018 pilot hiring plan at the end of its two-year duration and decide the future of the judicial clerkship hiring process. As such, it is time to review the pros and cons of regulation and examine potential reforms.
The Pro-Regulation Perspective
Proponents of regulating the law clerk application process highlight several benefits of the latest hiring plan. First, they assert that the plan ensures that judges hire law clerks after they have completed at least two years of law school, allowing law students to have established a fuller academic record and developed a more informed opinion about their legal career plans. This timeline prevents judges from hiring earlier and earlier—a race-to-the-bottom scenario that often leads to judges hiring first-year law students, forcing both the judge and the law clerk-to-be to make plans at least two years into the future.[2]
Second, proponents like Chief Judge Robert Katzmann of the Second Circuit argue that the 2018 hiring plan levels the playing field for first-generation law students and those without legal connections by pushing back the judicial clerkship hiring start date from the end of students’ 1L year to the end of their 2L year.
Third, proponents of the plan believe that it is fairer to applicants because it effectively bans the “exploding offer” scenario, where a judge makes a clerkship offer and waits for the applicant to respond on the spot. Under the 2018 plan, judges are not only required to keep clerkship offers open for at least 48 hours, but they also must allow applicants to interview with other judges during that period.
The Anti-Regulation Perspective
The uniquely independent nature of the judiciary and the amount of discretion accorded to judges both pose considerable challenges to regulating the judicial clerkship selection process. Under the U.S. Constitution, Article III judges enjoy substantial autonomy and lifelong tenure “during good behaviour.” Given this characteristic of the ultimate decision-makers in the law clerk hiring process, critics of regulation argue that any hiring plan is bound to fail because of two critical loopholes: First, it is a voluntary plan that judges must opt into; and second, it is non-binding, without any mechanisms for enforcement. Both of these factors, critics argue, contributed significantly to the failures of past reform efforts, including the failed hiring plans of 1978, 1983, 1989, and 2003.[3]
Critics also argue that by imposing an artificially compressed timeline that begins only after the applicant has completed his or her 2L year, the 2018 plan creates even more pressure for judges to try to hire the most coveted applicants as early as possible. Given a tighter timeframe, some judges may feel compelled to continue to make exploding offers, despite the rules.
Professor Aaron Nielson, a former Supreme Court clerk for Justice Alito, has asserted that “no plan at all” is better than “a plan that doesn’t work.”[4] Nielson believes that imposing a hiring plan that does not work is unfair, because “when a plan is formally in place but is widely ignored, folks learn that only gullible people trust rules.”[5] While students from law schools with robust clerkship cultures may be better informed, their counterparts at other schools may put undue faith in the hiring plan, not realizing that it is falling apart.[6] Moreover, because some, but not all, professors are willing to submit letters of recommendation before the recommended date, the plan “treat[s] similarly-situated students dissimilarly.”[7]
Another fervent advocate for deregulating the judicial clerkship selection process is the outspoken—now-disgraced—former Judge Alex Kozinski,[8] who viewed the judicial clerkship selection process as “a normal, highly competitive market process where the parties bargain with each other on roughly equal footing.”[9]
Like the classic prisoner’s dilemma, coordination in clerkship hiring is difficult and costly when rule-breaking provides a benefit. The 2018 hiring plan, far from being revolutionary, must overcome the same barriers that caused prior reform efforts to fail: a multitude of players, intrinsic power imbalances, a lack of transparency, and a dearth of meaningful enforcement mechanisms.
Proponents of deregulation argue that allowing judges to hire at their own pace would mitigate problems associated with the hiring plan’s artificially compressed timeline. Some point out that a compressed timeline under a regulated hiring plan might create an additional incentive for judges to favor post-graduates, none of whom are subject to the hiring plan’s rules. This may both increase the number of post-graduate applicants and reduce the chances of law students securing a clerkship before graduation.
Will the 2018 Hiring Plan Survive?
So far in the 2020 clerkship hiring cycle, the pilot hiring plan seems to be mostly working, but some students had already gotten clerkship offers before June 15. Unfortunately, the prevailing view from both the pro- and anti-regulation camps is that the 2018 pilot hiring plan is unlikely to be the perfect antidote to the judicial clerkship hiring chaos.
Those in favor of regulation point out that while the new plan has a number of advantages, it does not fundamentally differ from previously unsuccessful attempts. Both Justice Goodwin Liu of the Supreme Court of California and Above the Law’s founding editor David Lat predict the new plan will enjoy limited traction before judges resume the race-to-the-bottom by hiring earlier and earlier. Justice Liu and Lat suspect that the new plan will ultimately be pronounced dead, just like its predecessors, for its lack of binding force and enforcement mechanisms. At the other end of the spectrum, deregulators argue that the free market should rule the law clerk hiring process from the start because they assume that most judges will eventually, if not initially, defect from any new attempt of regulating the system.
Judges, scholars, law school administrators, and students alike should continue to research the pros and cons of the current system and propose innovative solutions. For instance, there has long been a proposal to adopt the medical placement model—a matching program that uses a basic algorithm to match candidates with medical residency programs—in the judicial clerkship hiring process.[10]
If applied to the law clerk selection system, the program would center a rank order of preferences of judges for law clerks, and vice versa for judges, while preserving strict confidentiality for all parties involved.[11] A match would not only be binding, but also eliminate any incentive for judges to interview or extend offers early.[12] In her 1990 article, the late Chief Judge Patricia Wald of the D.C. Circuit expressed some support for the medical placement model, whose feasibility a committee of the D.C. Circuit was exploring at the time. However, no concrete steps have been taken to implement the medical placement model, let alone any other top-down reform proposal.[13]
There has been notably little discussion of potential enforcement mechanisms to rein in judges who deviate from hiring plans and start the race to the bottom. Indeed, the remarkable independence of Article III judges stands at the core of the challenge of reforming the U.S. judicial clerkship selection process. Some commentators have suggested that Congress could mandate that judges not hire law clerks before a certain date each year; but even they concede that “that could not possibly be the best use of Congress’ time.”[14] Others have suggested that the government could punish law students who apply early through fines or prison terms, but this seems far too extreme.[15]
Some attempts have been made to fix specific problems rather than overhaul the process. For example, the mentorship group “Law Clerks for Diversity” was recently founded by two former federal law clerks to “to increase the diversity of federal clerks by helping diverse applicants navigate the process and find the right opportunities to maximize their potential to land a clerkship.” The group “connects diverse candidates with current and former law clerks, practitioners, and judges for mentorship and assistance applying for federal clerkships.” Such bottom-up efforts may help make the black-box clerkship hiring process more transparent to traditionally disadvantaged applicants, even if they do not operate by attempting to alter judges’ hiring timeline.
Perhaps it is finally time to try out the medical placement model; or better yet, to develop other proposals that will include the pros of the regulation and deregulation solutions that we have analyzed so far, while actively avoiding the cons of each. Despite a potential “Heisenberg problem,”[16] we must not let the conversation die in order to further reform the judicial clerkship hiring system, and, alas, to foster lasting order in court.
* April Xiaoyi Xu is a rising 3L at Harvard Law School. She was a judicial intern to Judge Alvin K. Hellerstein at the United States District Court for the Southern District of New York (SDNY). April took Justice Elena Kagan’s seminar on the Supreme Court’s 2018 term. She has been writing a legal-thriller romance novel that is partially set at the U.S. Supreme Court.
[1] See, e.g., Patricia M. Wald, Selecting Law Clerks, 89 Mich. L. Rev. 152, 160 (1990).
[2] Diane Wood & Aaron Nielson, A(nother) New Plan for Clerkship Hiring, 102 Judicature 70–71 (2018).
[3] See Trenton H. Norris, The Judicial Clerkship Selection Process: An Applicant’s Perspective on Bad Apples, Sour Grapes, and Fruitful Reform, 81 Calif. L. Rev. 3, 784, 785–88 (2000).
[4] Wood & Nielson, supra note 2, at 71.
[5] Id. at 71–72.
[6] Id.
[7] Id.
[8] Kozinski retired abruptly from the bench in 2017, after facing multiple sexual harassment allegations.
[9] Alex Kozinski, Confessions of a Bad Apple, 100 Yale L.J. 1707, 1714 (1991).
[10] See, e.g., Wald, supra note 1, at 160–61 (1990).
[11] Norris, supra note 3, at 792.
[12] Louis F. Oberdorfer & Michael N. Levy, On Clerkship Selection: A Reply to the Bad Apple, 101 Yale L.J., 1108, 1100 (1992).
[13] See Oberdorfer & Levy, supra note 12, at 1098.
[14] Wood & Nielson, supra note 2, at 71.
[15] Id.
[16] Will Baude, Some Reluctant Skepticism About the New Law Clerk Hiring Plan, Reason: Volokh Conspiracy (Aug. 27, 2018, 10:36 AM), https://reason.com/2018/08/27/some-reluctant-skepticism-about-the-new/. The “Heisenberg problem” refers to the proposition that, “if those of us who worry about the plan state publicly that it probably won’t work because judges aren’t following it, it may lead to even more judges not following it.”