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Play Nice: Judge Michael McConnell of the U.S. Court of Appeals for the 10th Circuit is co-chairman of the Judicial Conference's committee on clerk hiring. He says fewer judges follow the guidelines.
True story: A top student from a top law school interviews with a well-known, well-regarded judge on the 4th U.S. Circuit Court of Appeals. The judge, Paul Niemeyer, clearly impressed, offers him a clerkship on the spot. But the student says he has interviews later in the week for the D.C. Circuit and the 9th Circuit. He asks this judge if, er, well, he could wait until after those interviews to make a decision.
"If I give them an offer and they say, 'I'm going to wait until I see someone in D.C.,' that's fine. The risk you run is, I'm going to keep interviewing, and if I find someone acceptable, I'm going to proceed," explains Niemeyer, before continuing on with his story, which in the year since its first telling has been recast as a parable for law clerk hopefuls.
Despite Niemeyer's warning, the student hazards the D.C. Circuit interview -- it goes well; another offer -- and then hops a flight to the West Coast to see a judge on the 9th Circuit. By the time our student lands, his East Coast offers have dried up. The 9th Circuit clerkship doesn't work out. Maybe next year.
For many third-year law students seeking a federal appellate clerkship -- an unequaled resume builder and must-have for those seeking entree into the chambers of the Supreme Court -- the process is chaos, a 36-hour binge of interviews, dropped calls, letdowns and, with any luck, a job offer or two. The federal judiciary's effort to introduce some sanity into the hiring scheme has faltered, not least because judges, absent their robes, are fiercely competitive when it comes to selecting clerks.
And as such, they are not above gaming one another for the top Ivy League talent, even if it means ignoring the deadlines set forth in the federal judiciary's hiring guidelines. Some judges schedule students to come in at 12:01 a.m. on the first day of interviews in September to get the jump on their colleagues. Others extend "exploding offers," where students are forced to make a decision on the spot, even though they likely have sent out dozens of applications and have several interviews scheduled with other judges later that day.
"I guess those are the breaks," one Yale Law School student lamented in an e-mail to his professor, Christine Jolls, who has co-written studies on the federal law clerk market. Jolls says the student had hauled down the East Coast to the E. Barrett Prettyman U.S. Courthouse in Washington, D.C., on the morning of Sept. 19 to meet with a judge, only to find out, minutes before the interview, that the position had already been filled. Another interview scheduled for later that day in the same courthouse was canceled for the same reason.
WHAT RULES?
The Judicial Conference, the federal judiciary's policy-making body, has tried unsuccessfully over the years to make judges play fair but, so far, has been unwilling to codify a set of rules for the game. As it is, there are "guidelines," which politely ask the judges to adhere to a uniform set of hiring dates and refrain from interviewing students who have not completed their second year of law school. A similar framework was assembled in the 1980s but abandoned after a year for lack of participation. This year, judges were asked to delay review of clerk applications until Sept. 4, call-backs until Sept. 11 and interviews until Sept. 19. Some judges acquiesced, particularly in the 1st, D.C. and 2nd circuits; a considerably larger faction did not.
"We're certainly in a period of declining participation," says Judge Michael McConnell of the 10th Circuit, who is co-chairman of the Judicial Conference's committee on clerk hiring.
A study -- conducted by Jolls, Judge Richard Posner of the 7th Circuit and Harvard professors Christopher Avery and Alvin Roth -- released in January found that in both 2004 and 2005, more than half of the judges surveyed said that either a "substantial number of appellate judges did not adhere" or "few appellate judges adhered" to the start dates for scheduling interviews and making offers.
While judges widely agree, the study indicates, that hiring should be put off until after the students' second year of law school, the deadlines strike many, such as Niemeyer, as unfair.
They advantage the big-city circuits, he says, where several judges sit in the same courthouse, allowing students to knock out several interviews at once. Considering much of the hiring takes place in the first hours of the first day, it's harder for judges in remote locations to draw out the best students, says Niemeyer, who sits in Baltimore with one other 4th Circuit judge, Diana Gribbon Motz. Motz says she began interviewing ahead of the scheduled date this year.
"How in the world would a judge in, say, Charleston, W. Va., or Pittsburgh secure interviews on the first day, when the clerks are rushing to the courthouses with a lot of judges?" Niemeyer says.
In fact, nearly all the judges on the 4th Circuit have agreed to disagree with the guidelines. So have most of the judges in the 5th, 10th and 11th circuits, according to McConnell. The 9th Circuit, too, is spotty, he says, but showed an increase this year in voluntary compliance.
In the 1st Circuit, Judge Sandra Lynch says the court, without exception, stuck to the guidelines. She is not persuaded by Niemeyer's argument about scattered or remote courthouses. All of the judges on the 1st Circuit convened at the Boston courthouse for a clerk-hiring convention of sorts on Sept. 19, and most judges hired their clerks immediately, she says.
The guidelines, she concedes, do limit students' options, but they also discourage the candidates with only a passing interest in clerking in her chambers and open doors for those who really want the job. "Many of us now have the benefit of receiving very good applications from people who are very serious about clerking with us," Lynch says. "A few years ago, I had over 600 applications. It was hard to sort through who was really about being here and who wasn't."
But that's not to say all judges in the participating circuits are willing to wait for the talent to come to them. Some have devised methods of tweaking the system to give them an edge. At the D.C. Circuit, lights shone in the windows of some judges' chambers before dawn on Sept. 19. They had scheduled their first interviews between 6:45 and 7 a.m. Jolls, who is a member of a committee of professors and deans that advises the Judicial Conference on the hiring process, says she got a 2 a.m. e-mail from one of her students who had just emerged from an interview with a 2nd Circuit judge. The judge had scheduled the interview for Sept. 19 at 12:01 a.m.
'AN UTTER MESS'
As in most family feuds, it's the kids who suffer most. In interviews, newly hired law clerks rated this year's hiring frenzy on a scale from "unfortunate" to "an utter mess."
Aaron Liskin, a University of Texas law student who took a clerkship at the 11th Circuit beginning in August 2008, says the inconsistency was scary.
"I think the worst aspect of the plan, at least from my perspective, was the uncertainty. There was just extra paranoia for those of us choosing to stick to the plan that maybe it was going to crumble -- that they, the judges, were going to fill up."
"The process is madness," says a Columbia University law student who was hired by a 2nd Circuit judge. With all the hiring compressed to about a day and a half, the student packed a bag before leaving on the morning of Sept. 19 not knowing whether he was coming home that night or flying to Columbus, Ohio, via Philadelphia, for interviews in the 6th Circuit.
Judges agree that stacking interviews on one day is costly and exhausting for the students, but it's still preferable to hiring them in their second year of law school, before they have proven themselves. Even irregular adherence to the guidelines keeps the hiring from slipping back that far.
"In that sense, the hiring plan is still a tremendous success. They do follow that element of it," McConnell says.
Judge A. Raymond Randolph of the D.C. Circuit takes it a step further: "There is a way you could presumably get everybody to adhere to [the guidelines]: Make an ethical prescription to abide by the agreed upon limitations." In other words, force compliance.
