I have been hearing that certain federal judges will stop hiring graduates of a name-brand law school whose alumni include trial judge extraordinaire Chamberlain Haller. I am not going to discuss the events that led to this although I will suggest that if the dean wants to get back in these judges’ good graces, she must publicly use the raw power of her position to effectively and immediately put the house back in order.
Time will tell as to whether this will change the status quo, particularly since a feeder judge has not (at least not openly) announced a similar ban. But this would be a good opportunity for all federal judges to at least consider hiring graduates of other law schools outside of the usual suspects.
The hiring process for clerkships is complicated. I think it is safe to assume that every federal judge has more clerkship applications than they know what do to with. As a result, they can be selective about who to interview, even if it means excluding most law schools. On the other hand, the candidates they are seriously considering are probably going to be considered by other judges as well. So some federal judges will have to negotiate and wait while applicants consider their options. In the end, they may not hire their first or second choice.
A good number of federal judges want to be (or continue to be) feeder judges with records of sending their clerks to the Supreme Court. Being a feeder judge has its advantages, such as avoiding the hiring hassle described above. They will get more applications from highly talented applicants who want a Supreme Court clerkship. Also, they have a far better chance of hiring the people they want. In addition, being known as a feeder judge sets them apart from their colleagues and gives the impression that they are going places.
It seems like there are two ways to change the system. The first is to change the hiring process and, more importantly, the hiring culture. I do not think that judges should punish an entire law school by not hiring its graduates. Instead, judges should be encouraged, praised, and rewarded for giving underdog candidates a chance. For some reason, this is seen as a risk.
Those who don’t care about being a feeder judge are probably in the best position to widen the hiring net. Of course, they are still going to hire only the top students who come with demonstrated research and writing skills along with exemplary faculty recommendations. They will not likely get a clerkship at the high court, but at least they get a biglaw job as a consolation prize.
But what about feeder judges who may have supreme ambitions? Is it worth it to give a solid candidate from an average law school an unprecedented clerkship opportunity if it means possibly lowering the chances that the Supreme Court will hire your clerks? Those who go with the status quo might rationalize their decisions by stating that they will make changes when they become a justice. Looking at the current track records, the odds of that happening seem low.
The other way to disrupt the clerkship hiring process is to appoint and confirm judges who will hire clerks from a broader range of schools. The president should nominate a graduate of a nonelite school if politically feasible. During the confirmation hearings, Senate judiciary committee members should get a promise from the nominee that he or she will hire at least one clerk from a nonelite school on a regular basis. This should start at the Supreme Court level so that judges from district and circuit courts can cater to each justice’s personal preferences in order to increase their chances of getting the coveted feeder status.
The late Chief Justice Rehnquist only hired three law clerks every term. And one of them came from a law school that isn’t from the usual 14. But no one has followed his example. I suppose that fear, loyalty, and even snobbery could be involved. It should not take a controversy for a judge to consider other law schools for clerkship opportunities.
Steven Chung is a tax attorney in Los Angeles, California. He helps people with basic tax planning and resolve tax disputes. He is also sympathetic to people with large student loans. He can be reached via email at firstname.lastname@example.org. Or you can connect with him on Twitter (@stevenchung) and connect with him on LinkedIn.