Does Congress need law clerks?

Larry Kramer says yes after a conference on the proposition in April. I question the reasoning somewhat--doesn't Congress already have hundreds of attorneys employed by committees? Still, more clerks could give Congress bright "young lawyers [who] would spend a year researching and drafting laws before moving on to other legal endeavors." In a way, new law students offer a unique perspective to the drafting process. From Law.com:

"The legal profession as such is extremely court-centered," Kramer said. "One of the reasons for that, I think, is that court clerkships are the first job out the door for many graduates of the best law schools in the country. They move on and become leaders in the profession, and it's incredible the extent to which that first job shapes their thinking and understanding about the profession."

Advocates of congressional clerkships are dreaming big, but starting small. The Daniel Webster Congressional Clerkship Act of 2011, a bill introduced in April by U.S. Rep. Dan Lungren, R-Calif., and co-sponsored by U.S. Rep. Zoe Lofgren, D-Calif., would create a pilot program with 12 clerks. The Committee on Rules and Administration of the Senate and the House Committee on House Administration would select clerks from a centralized pool. Each chamber would get six clerks, to be divided between the parties.

The article further elaborates on the proposed pilot program:

Legislators and committee would compete for the clerks by offering the most attractive type of work. The clerks would choose where they want to spend their year.

Keeping the pilot program small will help ensure that competition for clerk spots is stiff, said Yale Law School professor Bill Eskridge, a leading authority on the legislative process. The plan will have succeeded, he said, if the congressional clerkships carry prestige equal to that accorded to federal court clerkships. The long-term plans calls for the program to expand after the pilot phase.

Supporters acknowledge that getting the bill passed during this legislative session may be difficult, given that Congress is in budget-cutting mode. The cost of the pilot program is relatively small -- about $1 million per year, with clerks earning the same salary as clerks in the U.S. District Court for the District of Columbia -- but the cost has been a hurdle in the past.

Senator Chuck Schumer has sponsored a sister bill in the Senate on the measure. It will be interesting to see how this shakes out.

Clerkship Applications up 66% From Last Year...

Back in February, we inquired whether the economic climate would lead to fewer candidates applying for judicial clerkships. As we noted:

[W]ith firms laying off by the dozen and swelled profits drying up, can anyone comfortably state that clerks will continue to receive BigLaw's "most favored associate" status? Probably not. In fact, it is entirely conceivable that clerking could pose an affirmative disadvantage for students with respect to firm employment: offers can be revoked, bar expenses unpaid…the potentially adverse consequences of choosing to clerk rather than go straight to a firm are plentiful.

Fast Moving Week in the Senate--Two District Judges Confirmed

Nearly a month ago, we noted in a clerkship series post that the Senate Judiciary Committee had sent four federal judicial nominations to the Senate for a vote, encouraging prospective clerkship applicants to polish their applications off to receive a federal clerkship in October or beyond. So far, it looks like we chose the word "beyond" wisely--opportunities may extend well into the spring given the current pace of things.

Clerkship Series: Day 3 -- Ranking the T14 by all-time Supreme Court Clerk Placement

For this edition of the Clerkship Series, I decided to rank the Top 14 law schools (the so-called "T14") by all-time Supreme Court clerk placement. I attempted to search the internet for information on the total number of clerks each law school in the T14 has ever placed on the Supreme Court, but was unable to find the precise statistics. It is true that Artemus Ward and David Weiden wrote Sorcerers' Apprentices, a resource that provides an extensive, detailed account of key issues relating to Supreme Court clerks, their duties, and the Court viewed from their perspectives. And of course, Wikipedia provides a fairly solid reference point (here) which lists the Supreme Court clerks of each Justice by law school dating as far back as 100 years. But I could not find an actual tally online.

While it is conceivable that such an online tally exists, I instead decided to draw on the Wikipedia list, and to do some independent research of my own to compile an unscientific ranking. As a preliminary matter, Wikipedia's numeric data differed slightly from the information I obtained from the administrative offices of various T14 law schools. Instead of precisely accounting for these minor differences, I decided to simply group each school within a defined range (i.e., 100-200 clerks total). The schools within the top four ranges are ranked according to their quantitative totals. Because of the numerical deficiencies in the data (the variance in information I obtained from the schools and Wikipedia), I could not rank schools within the last two ranges. In the fourth range at least, each school had very similar placement numbers (i.e., Wikipedia says Penn, NYU, and Northwestern have placed nearly the same amount of total clerks).

It is essential to emphasize that this ranking is not meant to be scientific, though it does shed some light into which schools do the best job of landing their students the most prestigious clerkship out there. Now on to the stats. . . .

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The Defined Ranges:

400+

200-300

100-200

50-100

30-50

1-30

(by total clerk placement)

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The Rankings:

400+ (Harvard)

200-300 (Yale)

100-200 (1. Chicago, 2. Stanford, 3. Columbia)

50-100 (1. Virginia, 2. Michigan)

30-50 (Berkeley, Northwestern, NYU, Penn)

1-30 (Georgetown, Duke, Cornell)

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I know this list may draw some criticism because of my decision to limit the sample to T14 schools. Indeed, it is absolutely true that a few schools outside of the T14 have placed more clerks than some on this list. For example, the University of Texas has placed 30 clerks--substantially more than Cornell, which has only placed 7. My decision to exclude these schools was solely based on my desire to draw the line somewhere. After all, the Justices have employed hundreds of clerks since the early 20th Century, and many schools have at least one clerk represented in that number. Finally, it must again be emphasized that I was only able to conclusively gather the information from the schools themselves and from Wikipedia, so to the extent that there are any unlisted clerks or other problems, I apologize. I'll be pleased to make updates to this list as information trickles into our inbox.

Clerkship Series: Day 2 -- Landing a Federal Clerkship in October

In our Day 1 posting of the clerkship series, Nima conveyed NYU Law Assistant Dean Deborah Ellis' encouraging words that all is not lost for securing a clerkship this hiring season. As Dean Ellis noted, "[t]here are many judges who have not hired, especially at the trial . . . and state level[s]." While it is difficult to gauge how much hiring activity will really transpire over the course of the next few weeks, at least some hiring is on the horizon—many of President Obama's pending judicial nominees will be getting confirmed, and additional nominations are likely imminent. Indeed, as Jeffrey Toobin pointed out in The New Yorker:

Obama already has the chance to nominate judges for twenty-one seats on the federal appellate bench—more than ten per cent of the hundred and seventy-nine judges on those courts. At least half a dozen more seats should open in the next few months. . . . On the federal district courts, there are seventy-two vacancies, also about ten per cent of the total . . . .

That's a lot of new judges who will need law clerks. And although the pace of confirmations has been anything but speedy (only three judges so far, cf. President Bush's fifty-three confirmations during the first year of his Presidency), the Senate sent four nominees to the full Senate for a vote just this past week: Joseph Greenaway (nominated for 3d Cir.), Roberto Lange (nominated for D.S.D.), Irene Cornelia Berger (nominated for S.D. W. Va.) and Charlene Edwards Honeywell (nominated for M.D. Fla.).

So polish off your applications, and get ready to land a federal clerkship in October...or beyond.

Clerkship Series: Update

As mentioned in our Day 1 posting of the 2009-2010 Clerkship Series, the Blackbook Legal Blog will feature a series of exciting discussions regarding the clerkship process over the course of the next few weeks. In connection with our series, we are delighted to share that we have teamed up with Law Clerk Addict, and will be cross-posting our articles there.

Much more is on the way, so stay tuned! And, as always, please feel free to write us at tips@blackbooklegal.com with any suggestions or ideas.

Clerkship Series: Day 1 -- The NYU Approach to Clerkships

Most law students have heard by now that there are tremendous benefits in completing a judicial clerkship—indeed, many former clerks with whom I’ve spoken say it was the best experience of their lives. However, there is an irritating aspect to the application process as it can sometimes lead to confusion, stress and, worst of all, depression.

In an effort to mitigate these negative feelings, BBL is beginning a series on clerking to help guide our readers through the sometimes nebulous process. To kick off our efforts, I caught up with Deborah Ellis, NYU Law's Assistant Dean for Public Interest Law Center. Dean Ellis oversees NYU's Judicial Clerkship Office, and has presided over what has been one of the school's best years in terms of placing federal judicial clerks. She talked with me about NYU’s approach to the process, and the process generally.

As the Dean noted, this year NYU "substantially increased the number of Court of Appeals clerkships" that its students obtained. The Dean attributed these successes, in part, to NYU's creation of a judicial clerkship office which serves to "highlight [the school's] institutional emphasis on judicial clerkships." This change was accompanied by other specific changes the school made. One constant is the degree of effort the faculty puts into helping and guiding their students—a process that begins from the moment the student enters her first class. According to Dean Ellis:

Our faculty and deans are very interested in helping our students, and are pleased that the students are doing very well. . . . I don’t want to comment on us versus Harvard or Columbia [for example], but we believe a clerkship is a great opportunity for every student no matter who it is . . . and no matter what type of work they want to do. [Ultimately], we try to give very close counseling to students, and faculty works very close with [them] during this process.

The school also believes that:

[T]here are advantages to all courts—from [District Courts] to the Court of Appeals, and magistrate courts and from bankruptcy courts to state supreme courts. So we really encourage students to apply broadly. For example, I went to NYU and clerked in Montgomery, Alabama for the 11th Circuit.

BBL applauds Dean Ellis and the outstanding work the Judicial Clerkship Office at NYU has done for its students. However, we wanted to glean some general advice from the Dean about how concerned students elsewhere should approach the process. Many of our readers were disappointed with how the application season has fared so far, so I asked the Dean what advice she would give them:

My general advice is that I would not feel discouraged. There are many judges who have not hired, especially at the trial . . . and state level[s]. The other thing students should always consider is applying beyond the major metropolitan areas where the competition is most intense.

I thought the advice about judges not having made hiring decisions was interesting. Along these lines, the Dean also emphasized, "sometimes many students think all calls get made on first day of hiring, and while many court of appeals judges do this, students should not get discouraged if they don’t get a call."

True, but it seems to be a known fact now that many judges now hire outside of the federal hiring plan—placing many other students at a competitive disadvantage such that it may, in fact, be reasonable to assume that calls will not come after the first week for rising 3Ls. While the Dean acknowledges that pre-plan hiring does occur, she emphasized NYU's policy of sticking to the plan:

I really do believe in the federal hiring plan, and as a school, we believe in following it. It helps to have deadlines that are being followed uniformly.

We thank Dean Ellis for her willingness to reach out to law students with candid, transparent advice. And we hope that our readers who didn't yet get clerkships this year don't give up—it's not (necessarily) over yet!

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UPDATE: A commenter was interested in NYU's actual numbers. While the Dean was unable to share the statistics, a tally on Law Clerk Addict reveals that 24 NYU students have received court of appeals clerkships at this point in the cycle. Particularly staggering is NYU's placement of 6 clerks on the D.C. Circuit, roughly double the count reported on Law Clerk Addict for the 2009-10 term. Obviously, these numbers are not conclusive--Law Clerk Addict's statistics are not entirely complete and, in some instances, may be inaccurate. Its statistics are generally reliable, however, and these initial numbers are very impressive. In fact, these statistics paint NYU as either number one or two in the raw number of clerks placed on federal courts of appeal.

In short, the numbers confirm Dean Ellis' noted assertion that NYU substantially increased the number of clerks it placed on the federal courts of appeal this year.

Supreme Court calls on former clerks . . . Oh, and by the way, we're back

After a fairly long--and for us, taxing--hiatus, the team at Blackbook Legal is back in business and ready to dive into the interesting legal issues of the day. We want to really thank all of our avid readers who have stuck it out with us during our brief hibernation. While our site traffic declined slightly in the past few months, many still perused our old threads, and kept the discussions alive. Moreover, we have a substantial number of e-mail requests for articles which we will publish in the due course.

As a cool kick-off article, I thought I would direct readers to a story I saw over at law.com. The article discusses the custom practice of Supreme Court Justices requesting that former clerks argue cases that others have simply abandoned. Justice Stevens provides the most recent example of this practice by his offer to Amanda Cohen Leiter, former clerk and current professor at Catholic University's Columbus School of law, to make her first oral argument before the Supreme Court. So this is one cool long-term perk of landing a Supreme Court clerkship that

[m]ost often . . . happens because the government no longer embraces the position it would be expected to espouse at argument. Rather than dismiss the case, the Court will name a lawyer -- almost always a former clerk -- to advance the orphaned argument, guaranteeing a full airing of both sides.

Indeed, esteemed appellate practitioners like John Roberts and Maureen Mahoney got their first case assignments this same way. Check out the article.

Want a SCOTUS Clerkship? Better Not Go to AU...

Justice Scalia made a point of shooting down the dreams of an American University Law Student, when he explained why she would likely never have a shot at a Supreme Court clerkship. As the New York Times reports, Justice Scalia--while giving a speech on administrative law at AU Law School--gave this student a short summary of what it really takes to be a Supreme Court clerk: doing extremely well at a top law school. "You can't make a sow's ear out of a silk purse," opined Justice Scalia in explaining why he "[is] going to be picking from the law schools that basically are the hardest to get into."

Justice Scalia admitted, however, that one of his best clerks, now 6th Circuit Judge Jeffrey Sutton, was a graduate of wait for it . . . "The" Ohio State University (Law School). Scalia noted, of course, that he would not have hired Jeff Sutton if he had applied directly. Instead, Judge Sutton "snuck" into his chambers after his Justice, Lewis Powell, resigned before he could begin his clerkship. Scalia's explanation speaks for itself:

"[I] wouldn’t have hired Jeff Sutton. For God’s sake, he went to Ohio State! And he’s one of the very best law clerks I ever had."

Okay. So Justice Scalia does not think it prudent to hire clerks from "non-top" law schools, but one of his best clerks ever was a graduate of (what Justice Scalia considers to be) such a law school? Am I missing something?

I understand the rationale for hiring clerks from the top law schools in the country, but holding a strict myopic view in this regard will (inevitably, I think) cause Judges to miss out on great talent.

Will you clerk in this economy?

Between the four or so letters I have received from my law school urging me to clerk after graduation, I have come to understand that clerking for a judge is a great (presumably, pre-firm) opportunity. Clerkships, I am told, are "to lawyers what post graduate fellowships are to doctors." Okay, fine. Like many of my peers, I was interested in clerking before the heavy sell; I was fortunate enough to have a great 1L summer working in a judge's chambers, and I saw firsthand just how valuable the experience is.

But the benefits of clerkships extend beyond the intangible experience everyone raves of. Indeed, as it stands today, most firms pay qualifying one-year clerks a $50,000 bonus along with class standing. While this monetary benefit is not enough to "make up" for the money lost spending a year working for a judge instead of a firm, it is a benefit that many undoubtedly consider when weighing whether to pursue a clerkship or not.

Let me be clear at the outset that I am not aware of any firm that has modified its policies with respect to judicial clerks. However, given the events discussed earlier, it seems conceivable—although, perhaps unlikely—that the market may change the way law firms treat judicial clerks.

There are, of course, compelling reasons for firms to do everything in their power to maintain the status quo. First, as noted, the experience is very valuable. It hones legal writing and reasoning ability immeasurably and thus brings associates to the firm who are better able to contribute. Second, clients love to have former clerks working for them; the positions are competitive, prestigious and former clerks have an "inside knowledge" of the judicial process.

Yet, with firms laying off by the dozen and swelled profits drying up, can anyone comfortably state that clerks will continue to receive BigLaw's "most favored associate" status? Probably not. In fact, it is entirely conceivable that clerking could pose an affirmative disadvantage for students with respect to firm employment: offers can be revoked, bar expenses unpaid…the potentially adverse consequences of choosing to clerk rather than go straight to a firm are plentiful.

I know I will still pursue a clerkship regardless of how the economy shapes the legal market in the next few months, but I am inclined to think that many who would otherwise want to clerk would be driven away by a change in the market. In these uncertain times, it is only natural to anticipate some degree of change in the priorities of ambitious law students.

Am I wrong to assume as much?