CLERKSHIP CHAOS SHOWS FEDERAL JUDGES ARE ALL TOO HUMAN: WHAT'S WRONG WITH THE CURRENT CLERK SELECTION PROCESS

Each year, the nation's top law students compete fiercely for judicial clerkships. And no wonder: A clerkship with a federal judge is a valuable professional credential and a marvelous opportunity for a young lawyer to learn from a powerful and respected mentor. The competition only becomes fiercer when the clerkship at issue is a position with one of the handful of "feeder judges" — federal appellate judges who consistently send their clerks on to second clerkships at the United States Supreme Court. What is disheartening is how the judges themselves vie with one another for prospective clerks, and the toll that competition has taken on the selection process as a whole.

The clerkship selection process used to be very much an old boys' network. For example, Justice Oliver Wendell Holmes, Jr. would ask then-Harvard Law Professor Felix Frankfurter — himself a former Holmes clerk — to recommend his best student, whom Holmes would then likely hire. As other Supreme Court Justices and lower federal court judges began to employ law clerks on a regular basis, the circle of "old boys" widened, but the symbiotic connection between law schools and judges was only strengthened. A prestigious federal clerkship was often a ticket to a prestigious academic position, which in turn was an opportunity to shepherd ace students to serve as young clerks for one's former boss. Given the narrowness of the selection criteria, the system was never quite the meritocracy that judges, professors, and clerks imagined it to be, but it was, at least, well suited to delivering top law school performers to the judges.

In the past, students applied for clerkships at some point during their third year of law school, when they had a substantial record of good grades and had impressed their professors.

In recent years, however, the application process has begun ever earlier. Now, it is common for students to apply for clerkships not during their third, or even their second year, but rather in the summer after their first year of law school — with judges selecting clerks in the fall of the second year of law school, nearly two full years before the students are slated to begin working. The baleful joke among students is that eventually clerkships will be assigned during freshman year of college — or perhaps at birth.

The typical student's application now includes a resume listing whatever she accomplished before coming to law school, a writing sample, her first-year grades, and recommendation letters from two or three professors who taught her in the first year. Law students who are late bloomers — rather than immediate stars — are entirely out of luck.

Back in the days when students applied for clerkships in their third year or late in their second, not only were many more grades and recommendations available, but the writing sample usually represented substantive work by a seasoned law student: a paper written for an advanced seminar, a Note written for the law review, or a memorandum produced as a summer employee after the second year of law school. Now students typically submit a first-year moot court or legal research assignment, clearly the work of a novice.

The early start date has also substantially undermined the utility of faculty letters. Because most first-year courses are quite large, the professors barely know most of the students they are recommending. For example, I taught 170 students in my two first-year classes last academic year. Thus far, I have been asked to write clerkship letters for twenty-three applicants this cycle. The most meaningful conversation I have had with many of these students occurred when they asked me to write a letter of recommendation. Indeed, in a few instances, this was the only time I had any conversation with the student. (Note to any federal judges reading this column: That does not apply to the students I recommended to you; I know all of them intimately.)

In contrast, the small seminars in which upper class students often enroll allow professors to get to know these students much better — and would allow a much more nuanced, informed recommendation. Upper class students can also distinguish themselves as professors' research assistants; by working closely on papers with professors; or by standing out among their classmates, through student activities such as moot court or mock trial competitions, or through law review work. But by the time students have accomplished these things, clerkship selection is over, and it is too late.

The current application process clearly disserves the judges. Yet it is they, more than anyone, who are responsible for it.

Just as students seek out the most prestigious clerkships, judges seek out the best law clerks. If a judge delegates the lion's share of legal research and the writing of first drafts of opinions to law clerks (as nearly all judges do), a clerk's talents contribute directly to building — or, in the worst case scenario, detracting from — the reputation of the judge.

Moreover, if top students clerk for an appeals court judge, that judge is likely to develop a reputation as a Supreme Court feeder — if for no other reason than that the very qualities that make a student attractive to the appellate judge also make him attractive to the Supreme Court Justices. And once a judge is known as a feeder, that reputation is self-reinforcing. Top students want to clerk for Judge Feeder because she has placed clerks with the Supremes, while the Supremes in turn come to regard an initial clerkship for Judge Feeder as a valuable credential for a potential Supreme Court clerk. Thus, the competition among judges for the top law students is keen. A top appellate judge is just as eager to hire a future Supreme Court clerk as the clerk is to become one.

Clerkship salaries are set by statute and employment conditions are generally similar: clerks work hard, under close supervision by judges. So how do judges compete with one another to attract top law students? The most favored method is the pre-emptive strike, or "exploding offer." Law students are notoriously risk-averse. (That's one reason they went to law school rather than, say, starting Internet companies.) Thus, they are likely to take the first acceptable clerkship offer they receive, and students do not usually apply to any judge whom they consider unacceptable. Judges, of course, know this, and take advantage of it. By interviewing and making offers to students just a few days earlier than her colleagues and making a take-it-or-leave-it offer to the best interviewees a judge can ensure that she, rather than another judge, gets her first choice of law clerks.

It is easy to see where this all leads. Judges leapfrog one another backwards in time — so that each judge starts incrementally earlier than the next, and then readjusts his or her timing when he realizes others have moved earlier still. The result is that any increase in quality of clerks for a particular judge in a given year is quickly erased. And as application and interview dates move further and further backwards, students' records become flimsier and flimsier, and the judges can be less and less confident each year that they have indeed identified the best students.

This is what economists call a group action problem. As a result of individually rational choices — here, the choice to select clerks a bit earlier than the other judges — the judges collectively make themselves worse off. There is, of course, a well-know solution to group action problems of this sort: regulation.

Suppose, for example, that students were forbidden to send clerkship applications before February 1 of their third year of law school; that no interviews could be conducted before March 1, that no offers could be extended before April 1, and that offers had to remain open for at least 48 hours (or some other reasonable period long enough to allow anxious law students to consult significant others or generally think through the consequences of relocating to Fairbanks or Miami for a year). Such a system would give judges more information about applicants — who would be second-semester third years, not first-semester second years as in the current system — and would enable students to schedule interviews in an orderly manner.

Indeed, something just like this was tried about ten years ago — except that the process took place in the spring of the second year and students were given an hour, rather than two days, to make up their minds. This system, which was adopted by the Judicial Conference — the federal judges' administrative body — proved too demanding for the judges. For one thing, they didn't like giving students the power to reject them, even if only for an hour. More fundamentally, judges cheated, asking interviewees questions like - "If I were to make you an offer on April 1, would you accept it?" - knowing that the applicant would rightly understand the question as a de facto take-it-or-leave-it offer. The system was abandoned after a year.

Over the last decade, there have been periodic efforts by the Judicial Conference to restore order. Some years ago, the Conference agreed that no applications would be accepted before February 1, without imposing any additional restrictions. The first year this approach was in place, there was widespread suspicion that a few judges were simply ignoring the starting date. By the second year, entire judicial circuits were flagrantly violating the rule, and it too was abandoned.

When the judges proved incapable of adhering to their own rules, the law schools tried to step in, but they too succumbed to the logic of group action. Two years ago, the deans of many of the leading law schools agreed that no faculty recommendations would go out before February 1. Before the ink was dry on the agreement, there were rumors of widespread defection. And why wouldn't there be? The agreement did not bind either judges or students. Thus, it was not uncommon for professors to receive phone calls from judges in early January or even December inquiring about candidates. Although the spirit of the deans' agreement may have barred us from providing oral recommendations prior to February 1, it was tempting to rationalize that the letter of the agreement letter did not. A professor's decision to remain silent in the face of a judge's call would not prevent the judge from hiring early; it would only prevent the judge from hiring one of the particular professor's own students. The judge would undoubtedly receive a glowing report on an applicant from a rival law school.

As a result of these failed rulemaking attempts, this year and last there have been no rules at all. Reforms along the lines of a medical internship matching system have been periodically proposed, but past experience suggests that unless some body with power to punish those who do not comply with the rules is in charge, the unseemly chaos will continue.

Justice Robert Jackson famously remarked of the Supreme Court: "We are not final because we are infallible, but we are infallible only because we are final." The current clerkship application process reveals that something similar may be said of federal judges generally: The Constitution does not give them life tenure because they are blessed with extraordinary judgment; rather, they are given life tenure in the hope that their judgment does not succumb to the ordinary human temptations. Yet the judges' behavior in selecting clerks gives one pause. We can only hope that they are capable of greater maturity and self-restraint in deciding cases than they have been able to muster in personnel matters.