Clerkships, Federal Judges, Feeder Judges, Immigration, Job Searches, Law Schools

Clerkship Application Season: Open Thread
(And a tricky issue re: non-citizen law clerks.)

Please hire us! We're Americans! Want to see our passports and birth certificates?

It’s that time of the year again: clerkship application season. Here is the requisite open thread for discussion, where you can trade news and gossip about which courts and judges are hiring, which ones are done, which clerkships are great, and which clerkships you’ll hate.

Pursuant to the 2010 Law Clerk Hiring Plan for federal judges, applications could be received last Tuesday, September 7. Today, September 13, is the first day when judges can contact applicants to schedule interviews. The calls were allowed to go out at 10 a.m. Eastern time (sorry, Californians). Interviews can be held and offers can be made starting on Thursday, September 16, at 8 a.m. Eastern time (again, our sympathies to Californians; but think of it like Christmas morning, when waking up early brings joyful news of a gift).

Word on the street is that the Plan is starting to break down, with an increasing number of judges, including some of the most prestigious and popular ones, hiring ahead of the deadlines. Getting federal judges to follow rules isn’t easy; they’re used to making the rules, not obeying them.

Furthermore, the Plan by its terms “does not cover applicants who have graduated from law school”; these applicants may be interviewed and hired by judges at any time. More and more judges are going down this path and hiring law school graduates rather than 3Ls, which (1) gives them clerks with more experience, either in practice or in another clerkship, and (2) allows the judges to avoid the mad scramble for talent under the Plan.

How competitive will the hunt for federal judicial clerkships be this year? Let’s discuss….

The short answer: very competitive, given the great prestige and experience that clerkships offer — and we’re talking about all federal clerkships, from circuit to district to magistrate and bankruptcy — as well as the fact that the private-sector legal job market is still soft.

But is it possible that the process might be ever-so-slightly less cutthroat than last year? First, the economy seems to be improving, meaning that some people who might otherwise have applied for clerkships will go to firms instead.

Second, at the margins, a small but not insignificant group of applicants might opt out of this year’s clerkship hunt. If you’re not a U.S. citizen, you can’t clerk for a federal judge — at least not if you want to get paid for your efforts. Expect this to deter a significant number of non-citizens from applying, at least in this current cycle.

Why is this the case? Anti-immigrant sentiment: it’s not just an Arizona thing. Earlier this month, the Blog of the Legal Times reported:

The federal courts are grappling with the consequences of a little-noticed new law that bars the payment of federal salaries to non-U.S. citizens. The law could affect more than two dozen currently hired judicial law clerks who hail from nations including Canada and Australia.

The statute, Section 704 of Public Law 111-117, was included in an omnibus budget measure passed last December. It requires that “no part of any appropriation contained in this or any other Act shall be used to pay the compensation of any officer or employee of the Government of the United States … whose post of duty is in the continental United States unless such person: (1) is a citizen of the United States.” It allows exceptions for those who are seeking U.S. citizenship, or have refugee or asylum status.

In case you’d like to see the operative language — we know some of you are sticklers for statutory text — we have reprinted Section 704 at the end of this post. To see the provision in context, you can click here (PDF) to pull up the full law, and then do a “find” (ctrl-F) for “Sec. 704” (and stop at the first mention; otherwise you’ll be taken to “Sec. 7040”).

This law affects not just the few dozen clerks already hired, referred to in the BLT post, but also current applicants. One law school clerkships adviser we spoke with reported that clerkship counselors around the country are “freaking out a little”:

It used to be that if you were from a treaty country and had a green card, no problem. Now, unless you’re a refugee or an applicant for citizenship under a particular section, you’re just SOL.

(“SOL” is not a reference to the statute of limitations; rather, see Urban Dictionary.)

And this is perhaps the most pernicious part:

These rules apply EVEN IF YOU WERE HIRED LAST YEAR under the old rules. It’s totally wrong. And there’s every reason to think Congress had no idea what it was doing and didn’t intend to screw all these clerks and judges.

Congress having no idea what it was doing? What else is new? Anyone who has taken a course in legislation or statutory interpretation, or even read a few Supreme Court opinions on statutory issues, is very familiar with Congress’s ineptitude in this area.

(In fairness to Congress, they do the best job they can given the complexities of modern life and today’s economy. But perhaps their occasional (or even frequent) screw-ups in drafting laws are an argument in favor of, well, having fewer laws. Lawmakers should take a version of the Hippocratic Oath: first, do no harm.)

As for current clerkship applicants, what should non-U.S. citizens do? The law could change between now and when they graduate, but is that possibility enough to make it worth applying? And what should judges do if they want to hire non-citizens? Should they hire them provisionally, and put the next-best candidate on a wait list? This would make an already complicated process even more messy.

Part of the problem is that the actors in the system don’t even have all the information they need, as one applicant explains:

Importantly, there is an information deficit. OSCAR [the online application system] has no check box to say “I am a US citizen” (like the DOJ application does), and many students write about (or have their recommenders write about) how their immigration experiences have shaped their lives. But, few people seem to have recognized the prohibition on non-citizen hiring and so few of these stories include information about whether the student is or is in the process of becoming a citizen (of the dozen I’ve read, one said he was in the process of being naturalized and expected to be a citizen by the end of the year).

So what should be done? Should chambers call applicants (or their recommenders) in advance of Monday’s official time for making interview offers to verify a student’s immigration status? Should judges ignore the prohibition, hoping it will disappear by next fall, and interview whomever they’d like? Does the prohibition, especially in conjunction with the lack of information, make it more likely that students with foreign-sounding names will be discriminated against?

All excellent questions. If you have any insight into them, from a relevant perspective — e.g., affected applicant, current clerk, judge — feel free to email us (subject line: “Clerkship Issue”).

As for clerkship hiring in general, you can follow the clerk hiring action over at Law Clerk Addict. (Over the summer, the Clerkship Notification Blog turned off the lights, after six years of operation.)

And, of course, you can discuss developments in this open thread. Have at it!

UPDATE: You can read a memorandum from the Administrative Office of the U.S. Courts about the non-citizen clerk issue over here.

P.S. Speaking of law clerks, does anyone know which D.C.-based federal judge Cate Edwards — the Harvard Law-educated daughter of trial lawyer turned politician John Edwards, as well as the owner of a fabulous Georgetown pad — is clerking for?

The Quickly Unraveling Clerkship Market [Concurring Opinions]
Can Federal Courts Pay Non-Citizen Law Clerks? [The BLT: The Blog of Legal Times]
Law Clerk Hiring Plan [official website]
Public Law 111-117 — Section 704 [U.S. Government Printing Office (PDF)]

Earlier: Clerkship Application Season: D-Day
Clerkship Application Season: Open Thread

PUBLIC LAW 111-117 — SECTION 704

SEC. 704. Unless otherwise specified during the current fiscal year, no part of any appropriation contained in this or any other Act shall be used to pay the compensation of any officer or employee of the Government of the United States (including any agency the majority of the stock of which is owned by the Government of the United States) whose post of duty is in the continental United States unless such person: (1) is a citizen of the United States; (2) is a person who is lawfully admitted for permanent residence and is seeking citizenship as outlined in 8 U.S.C. 1324b(a)(3)(B); (3) is a person who is admitted as a refugee under 8 U.S.C. 1157 or is granted asylum under 8 U.S.C. 1158 and has filed a declaration of intention to become a lawful permanent resident and then a citizen when eligible; or (4) is a person who owes allegiance to the United States: Provided, That for purposes of this section, affidavits signed by any such person shall be considered prima facie evidence that the requirements of this section with respect to his or her status are being complied with: Provided further, That any person making a false affidavit shall be guilty of a felony, and upon conviction, shall be fined no more than $4,000 or imprisoned for not more than 1 year, or both: Provided further, That the above penal clause shall be in addition to, and not in substitution for, any other provisions of existing law: Provided further, That any payment made to any officer or employee contrary to the provisions of this section shall be recoverable in action by the Federal Government: Provided further, That this section shall not apply to any person who is an officer or employee of the Government of the United States on the date of enactment of this Act, or to international broadcasters employed by the Broadcasting Board of Governors, or to temporary employment of translators, or to temporary employment in the field service (not to exceed 60 days) as a result of emergencies: Provided further, That this section does not apply to the employment as Wildland firefighters for not more than 120 days of nonresident aliens employed H. R. 3288—173 by the Department of the Interior or the USDA Forest Service pursuant to an agreement with another country.

(hidden for your protection)

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