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Amicus Briefs

Maybe Federal Law Clerk Hiring Practices Should—Just Spitballing Here—Be More Normal?

A recent spat between a judge and Yale Law School forces us to consider whether the federal judiciary should continue to be a spoils system for the well connected.

Judge James C. Ho of the Fifth Circuit Court of Appeals
Tom Williams/Getty Images
Judge James C. Ho of the Fifth Circuit Court of Appeals

Judge James Ho, a conservative judge who currently serves on the Fifth Circuit Court of Appeals, made a bold announcement last month: He will no longer hire clerks from Yale Law School. Ho cited instances of what he described as “cancel culture” on Yale’s campus, including protests against conservative speakers on campus and perceived missteps by the law school’s administrators. “Yale presents itself as the best, most elite institution of legal education,” he said. “Yet it’s the worst when it comes to legal cancellation.”

Ho’s boycott is consciously intended to change practices not only at Yale but at other prominent law schools. He also apparently isn’t alone. Earlier this week, The Washington Free Beacon reported that at least a dozen other federal judges had decided to stop hiring clerks from Yale for similar reasons, following Ho’s lead. “Students should be mindful that they will face diminished opportunities if they go to Yale,” the news outlet quoted a “prominent circuit court judge, whose clerks have gone on to nab Supreme Court clerkships” as saying. “I have no confidence that they’re being taught anything.”

The Free Beacon story quotes multiple federal judges, all speaking anonymously, who were blunt about their reasons for not hiring from Yale. Another unnamed judge described by the news outlet as a top “feeder” judge—meaning that their clerks often go on to be hired for Supreme Court clerkships—said that while they had “hired a bunch of great Yale Law clerks” in the past, they felt that at a certain point an institution like Yale “becomes so worthless and degenerate that you wonder what conservative would want to be a part of it.”

What makes this public spat between powerful judges and the fortunate students of a single law school worthy of attention? Rarely do we hear about the process by which federal judges hire their law clerks in such unvarnished terms. (This article is not about clerks in state courts, where hiring practices and professional duties can vary.) While I am not so interested in Ivy League cancel-culture debates, I welcome the opportunity given by Ho and his colleagues to rethink how the federal judiciary chooses some of its most important employees. There is certainly an opening here for more systemic reform.

The title “clerk” might suggest menial, low-ranking work to some observers. Some law clerks would concede that they do a fair bit of that. But it would be hard to overstate the importance of law clerks when it comes to keeping the federal courts running—or a clerkship’s effects on the trajectory of a person’s career. Law clerks are usually law school students or recent graduates. (The “law clerk” term is to distinguish them from clerks of court—career civil servants who handle a court’s administrative tasks.) They often serve for a year or so starting each fall. Federal judges typically rely on them to write the first drafts of opinions and to conduct in-depth research on precedents and legal history. Given the workload that many federal judges in the lower courts face, the clerks’ contributions are often indispensable even if they are not final or definitive.

It’s no secret that many judges hire clerks who fit a particular ideological mold. Antonin Scalia was open about his preference of ensuring that at least one of his four clerks each term was a liberal. “That kind of clerk will always be looking for the chinks in my armor, for the mistakes I’ve made in my opinion,” he said in a 2013 interview. “That’s what clerks are for—to make sure I don’t make mistakes. The trouble is, I have found it hard to get liberals like that, who pay attention to text and are not playing in a policy sandbox all the time.” The implication, of course, is that the other three clerks are conservatives by default. (To be clear, these ideological hiring preferences are not limited to conservative judges, nor does every conservative judge abide by them.)

The other defining characteristic of law clerks is their sense of loyalty and secrecy. Law clerks are expected to maintain absolute confidentiality about what they see, hear, and learn in a judge’s chambers, especially when it comes to cases themselves. Violating that omertà can bring ruinous consequences for a young clerk’s professional prospects. Scalia famously used to tell new clerks that if they ever violated the Supreme Court’s secrecy, “I will do everything in my power to ruin your career.” Such a fate may well await whoever leaked Justice Samuel Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization last term.

Those who complete their clerkship without a federal judge swearing revenge upon them will emerge from the experience with a lucrative variety of doors open to them. Rare these days is the nominee for a U.S. attorney job or federal judgeship who didn’t clerk for at least one federal judge before their confirmation. Every member of the Supreme Court today other than Justices Clarence Thomas and Sonia Sotomayor has clerked for a federal judge. Two of the three newest justices—Brett Kavanaugh and Ketanji Brown Jackson—replaced justices for whom they had previously clerked.* There are other perks for members of this aristocracy who don’t choose public service: Former Supreme Court clerks who go into private practice routinely receive $300,000 signing bonuses from their new firms, who prize them for their insight into the court’s inner workings.

Many lawyers who get clerkships also remember them fondly for reasons other than career advancement. Federal judges often maintain close relationships with their former clerks, with some regarding them as almost an extended family. Those social networks can be invaluable at times. When Judge Neomi Rao ran into GOP opposition during her confirmation for her D.C. Circuit post, Thomas reportedly reassured key senators of his former clerk’s conservative bona fides. It can also be a lifelong bond in the most literal sense. By tradition, when a Supreme Court justice dies and their body arrives at the court’s building to lie in repose, their former clerks line the entrance to the Supreme Court building as a sort of guard of honor for their deceased patron, mentor, and friend.

Naturally, not every clerkship experience is so positive. The relationship between a judge and a clerk is built on a fundamental power imbalance. Federal judges hold their positions for life, and there are vanishingly few ways to hold them accountable for misconduct. Clerks are often legal and professional neophytes whose careers depend on the goodwill of their bosses. Some former clerks have accused judges of exploiting this bond by acting in abusive and bullying ways. Judge Alex Kozinski, an influential member of the Ninth Circuit Court of Appeals, resigned in 2017 after multiple former clerks said he had sexually harassed or assaulted them throughout his judicial career.

Leah Litman and Aziz Huq, two law professors who wrote about judges and harassment last year, noted that federal laws that prohibit workplace discrimination generally do not apply to the federal judiciary. Nor do other laws that otherwise bind civil servants whose paychecks come from the U.S. Treasury. That is why, for example, a federal judge can hire clerks based on their political preferences when a manager in the U.S. Postal Service could not do the same for letter carriers. A 2020 report for the Center for American Progress identified the clerkship process, which effectively screens out future judicial nominees, as a key obstacle in improving diversity within the federal judiciary.

I do not personally care whether conservative federal judges make it their personal policy to hire no Yale Law graduates, or only Yale Law graduates, or just Yale Law graduates who happen to be Scorpios. I am also confident that the average Yale Law student will do fine in life even if they do not get the privilege of working for Judge Ho for a year. But since a group of sitting federal judges has opened a debate on how the federal judiciary should choose its law clerks, it’s worth thinking more expansively about the question. Should some of the most important jobs in the American legal system—jobs that come with taxpayer-funded salaries and some degree of influence over federal court rulings—be filled in such a haphazard way?

Federal judges themselves have tried voluntary proposals among themselves to reform the clerkship system without much success. Some legal scholars have also contemplated reforms to the existing process or even alternatives to it. William Baude, a University of Chicago law professor, proposed in 2020 that, at minimum, federal judges should post every job opening for a clerkship on OSCAR, the federal judiciary’s online system for clerkship hiring, instead of filling them through word of mouth or without public notice. Josh Blackman, a law professor at the South Texas College of Law, also floated a few ideas for reform that year, including an intervention by Congress to set minimum standards and regularize the process. At the more extreme end of the spectrum, he raised the possibility as a “thought experiment” of converting some or all law clerkships into full-fledged civil service jobs.

It may not be necessary to discard the existing system altogether. There is something to be said for letting recent law school graduates gain firsthand experience of how the federal courts actually work. A more sensible first step may be to transfer all hiring decisions to the federal judiciary’s administrative office. Future clerks would be hired on the basis of merit instead of the strength of their personal network or the prestige of the law school they attended. Once hired, clerks could then be assigned to specific judges and courts based on their place of residence, their planned area of legal practice, and perhaps even personal preference.

How federal law clerks are hired is probably not a high-priority item on the congressional agenda, and lawmakers might instinctually prefer to leave this in the judges’ hands. I might agree if it weren’t for the importance of a clerk’s job and the effects it can have on the legal system. These clerks are often not just legal neophytes doing grunt work for their respective judges. They are also the next generation of federal prosecutors, federal judges, and even Supreme Court justices. Americans would not allow any other part of the federal civil service to become an ideological spoils system where merit matters less than political leanings or cultural grievances. Why should the courts be any different?

* This article originally mistated the number of justices who’d clerked for Supreme Court justices and who replaced those for whom they’d formerly clerked.