THE BLOG

Fixing the Judicial Clerkship Crisis

01/30/2013 04:19 pm ET | Updated Apr 01, 2013

The federal judicial branch is in crisis. No, I'm not talking about marriage equality, the Voting Rights Act, or corporate financing of elections. Judges have a problem with how they hire their law clerks.

Most federal judges hire between two and four law clerks each year. They're usually recent law school graduates, who help their judge prepare for oral argument and write opinions. These clerkships often lead to high paying private sector jobs and prestigious positions in government. Think of it as the legal equivalent of an invite to the Manning Passing Academy.

For years, most judges selected their clerks via a fixed plan developed by the judiciary: first and second year law students were off limits. Only third year students could be interviewed, starting on a particular day in September. This prevented judges from trying to snag the "best" applicants early. In the good old days (five or ten years ago), many judges voluntarily abided by this system.

Not so much nowadays. Judges have begun hiring earlier and earlier, deciding not to comply with the hiring plan. This has created a race to the bottom, where judges interview (and offer jobs to) applicants with less and less law school experience. One judge memorably proclaimed that he thinks the appropriate time to start recruiting is "at birth."

The final nail in the coffin of the hiring plan came yesterday, when the United States Court of Appeals for the D.C. Circuit, called by some the "second highest court in the land," announced that it was abandoning the hiring plan.

In its announcement, the D.C. Circuit stated:

Although the judges of this circuit would uniformly prefer to continue hiring law clerks pursuant to the Federal Law Clerk Hiring Plan, it has become apparent that the plan is no longer working. Because participation in the plan is voluntary, a significant percentage of all United States circuit judges must agree to follow it if it is to work appropriately. During the past few years, a significant and increasing number of circuit judges around the country have hired in advance of the plan's interview and offer dates, and it is likely that they will continue to do so. As a result, continued adherence to the plan is no longer fair and equitable to either students or judges.

We stand ready to work with the judges of the other circuits to develop an appropriate successor to the current plan[.]

In other words: other judges were jumping the gun, so we had to give up too.

Why should you care? Because the earlier clerkship hiring happens, the more unfair it is to students, judges, and maybe even to you. Hiring students after less than two years means judges have less information about the students' legal ability. At a minimum, this privileges students who do well in the first semester or two of law school over those who take a little while longer to "get it."

But it's worse than that. Hiring earlier likely privileges students with pre-existing connections to professors and judges, as well as those from better law schools and those who have more impressive pre-law school extracurricular activities. In other words, the current system further advantages the already-advantaged. It gives those starting from behind less time to catch up.

This also means that judges are hiring clerks with imperfect information (think about high school baseball draft picks versus those in college). And that means you're getting worse performance from the judiciary because they aren't as well staffed as they could be.

So what's to be done?

If judges are serious about creating a new plan to fix this race to the bottom, there's an easy solution: use the old plan. The old plan worked just fine. It only had one problem; it was voluntary, so it unraveled. The solution is simple: make the plan mandatory.

Remember the story of Odysseus, who wanted to hear the song of the Sirens but was worried that doing so would cause him to sail too close to the rocks and wreck his ship? To get around the problem he had his crew tie him to the mast.

The judicial branch tried this solution with the old hiring plan, but they made a critical mistake: Odysseus didn't tie himself to the mast. He had his crew do it. That way he couldn't get the knots undone. Otherwise, tying yourself up is about as useful as putting that piece of chocolate cake in the back of the refrigerator. Sure, it helps for about ten minutes, but then you open the door, move the mayonnaise to the side, and there it is.

Instead of voluntary compliance, the judicial branch should ask someone else to tie them to the mast. In the context of our constitutional system, the term of art for this is one you may remember from middle school civics: the separation of powers.

Congress has the power of the purse. It allocates funds for building courthouses, keeping the lights on, and employing staff. For instance, law clerks are employed under 28 U.S.C. 752 (for district courts) and 28 U.S.C. 712 (for circuit courts). If the judiciary really wants to fix the hiring plan, then judges should request that Congress condition salaries for law clerks upon them being hired in compliance with the judicial hiring plan. In other words, if you don't play by the rules, you don't have law clerks.

But wait, isn't that unconstitutional? Nope. The Constitution prevents Congress from lowering the salaries of federal judges, but says nothing about their staff (anyways, such a law could be written to apply only to those hired in the future, not those already employed). And Congress isn't infringing on the judicial power in any way - this law does not effect how judges make use of their clerks, just the timing of how they hire them. And it would leave the actual formation of the plan up to the judiciary.

Federal judges could ask Congress to make the hiring plan mandatory via a proposal from a special judicial working group, or even in Chief Justice Roberts's year end report to Congress. And they should. A new, mandatory plan would be fairer for less-advantaged law students and late-bloomers, more efficient for federal judges, and maybe even better for you.