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

A Top Law School ‘Fesses Up: Yeah, We’re Violating the Law Clerk Hiring Plan — What You Gonna Do About It?

Dean Kramer begins his open letter to federal judges, which is reprinted in full on the next page, with some background:

As you may or may not know, Stanford, joined by several other law schools, wrote to the Judicial Conference in February to see whether anything could be done to bring early moving judges back into compliance with the Federal Law Clerk Hiring Plan. On behalf of the Conference, Judge David Sentelle responded that “the hiring plan is voluntary” and that “[t]he Judicial Conference has no authority to require judges to participate or to comply with its rules.” We also contacted the Chair of the Online System for Clerkship Application and Review (OSCAR) and received the same reply. So far as the judiciary’s own regulatory organizations are concerned, in other words, the Plan is wholly voluntary and they cannot do anything to help secure adherence to its terms.

Since then, rumors have begun to circulate about how Stanford Law School is handling clerkship applications, including some assertions that we are breaking a plan other law schools are following. For the sake of clarity, and to avoid misunderstanding, we believe it helpful to explain what we are doing and why.

I’d replace the word “rumors” in the paragraph above with “reports.” As the rest of Dean Kramer’s letter makes clear, the reports of what Stanford has been doing — including our report, back in June — were perfectly accurate.

After briefly describing the history of the Plan, Dean Kramer describes how adherence to the Plan has fallen by the wayside:

In recent years, that order and access [seen in the early years of the Plan] has eroded. Increasing numbers of judges — the entire membership of some courts, some or many of the judges in most others — have begun interviewing and hiring law clerks well before the Plan dates. Law schools, understandably anxious not to disadvantage their students, have accommodated these early moving judges. Without making explicit or formal institutional announcements, schools have looked the other way while permitting or even tacitly encouraging faculty members to contact and correspond with early moving judges on behalf of their students.

Put in other words, the Plan is not actually being followed, resulting in a process that is inequitable and unfair. Students who are “in the know” — because they are members of the right student organization or on the right journal or have the right faculty mentor — learn which judges are accepting early applications and get support. Those lucky enough to have connections to judges and/or faculty members are able to apply and secure clerkships, while others, less fortunate, are not.

This is absolutely consistent with my observations of the system over the years. It is true, of course, that so much of the clerkship hunt is about connections, and well-connected applicants with powerful mentors will always come out on top. But there’s no reason why the structure of the application process itself should further privilege the well-connected, who already enjoy huge advantages.

All of these developments put Stanford in a very difficult position, Dean Kramer explains:

The responses from Judge Sentelle on behalf of the Judicial Conference and the Chair of the Online System for Clerkship Application and Review (OSCAR) left Stanford with two options: (1) continue to participate in what has become a charade of professing allegiance to the Plan while actually breaking it by leaving individual faculty to reach out to early moving judges on behalf of a subset of lucky students; or (2) advise our student body openly and transparently, as best as we can, concerning which judges hire early and support equally the applications of all students who want to apply.

We have opted for the latter course. Thus, for judges who indicate that they are considering applications in the spring and summer, we are releasing letters of recommendation upon request. For judges following the Plan, we are not releasing recommendations until September.

This seems like a reasonable course of action (even if it may have unfortunate systemic effects). Stanford, as a West Coast school, has historically experienced difficulties as a result of the Plan; in the past, its students have had a harder time getting out to the East Coast at the start of the Plan-sanctioned interview days to meet with judges on such top-shelf courts as the D.C. Circuit, the Second Circuit, and the district courts in New York and Washington. So one can understand why Stanford might be less willing than its East Coast peers to stand firm in defense of the Plan.

And, as Dean Kramer points out, even the schools that claim to comply with the Plan aren’t really that stalwart in defending it:

We recognize that many of our peer schools have decided to continue to profess allegiance to the Plan while allowing their faculty to place students on a discretionary basis. We concluded, however, that the resulting inequities are too unfair. We want all students to have an equal opportunity to apply for clerkships, not just the lucky connected ones. By providing students with institutional support if they apply to early moving judges, we eliminate the inequities and “old boy network”-effect created by leaving that support to individual faculty discretion.

In terms of compliance with the Plan, we believe there is no material or meaningful difference between what we are now doing and knowingly turning a blind eye to faculty calls and letters to judges: no difference, that is, except our approach levels the playing field for all students in terms of access and opportunity to secure a federal judicial clerkship.

He has a point here. It’s hard to see much difference between what Stanford is doing and the approach of, say, Harvard. As explained by HLS Dean Martha Minow, “Faculty approached by students who are applying on their own to non-complying judges may exercise discretion in deciding how to support such students.” This “discretionary” approach is exactly what Dean Kramer views as a problem. If a school wants to protect the Plan, then it needs to actively prevent faculty members from supporting pre-Plan clerkship applications (although the notion of doing that seems ridiculous, which takes us back to the reasonableness of Stanford’s approach).

Of course, as a law school dean and professor, Kramer can’t resist the teaching moment here:

[W]e hope our new policy restores a modicum of integrity to the clerkship hiring system. Law schools ought to model respect for procedural rules. Yet the current hiring system teaches students the opposite: learn the rules and then figure out ways secretly to work around them for your own personal advantage. Worse yet, the current system sets up a regime under which law students’ first interactions with the federal judiciary come in the context of ignoring highly publicized rules that purport to ensure fair play.

The process for hiring law clerks has evolved into something as bad or worse than the system that existed prior to the Plan’s adoption. It presents a sham appearance of imposing deadlines, while in effect advantaging favored students or student groups. We tried to change it, without success, this past year. We hope you will work with us to enable all students to compete for clerkships on equal footing. We stand ready and eager to work with you and other schools to find a better way to manage the clerkship hiring process. Until then, we believe we are doing the best we can under the circumstances.

This seems fair enough. Stanford Law School tried to point out that the emperor had no clothes — and urged the emperor to get dressed. When the emperor refused, SLS had no choice but to look the other way.

(Okay, that metaphor might have been a little tortured. But you see my point.)

What do Stanford law students think of the move? Here’s what one SLS tipster told us:

There is a reason people were genuinely upset when Dean Kramer announced he was leaving: this is just another example of Dean Kramer doing what is best for Stanford students, regardless of any external pressures. I also think he hits the nail on the head when he talks about how the process had begun to seriously advantage those in the know, at the expense of some very qualified candidates who simply did not have the right connections. While I don’t think this totally eliminates that problem, I certainly think it helps.

It helps out Stanford law students — and, in the long run, it may help the system too. Maybe clerkship hiring needs to descend into total chaos before there’s enough institutional will to fix the process. As the old saying goes, it’s always darkest before the dawn.

(You can check out Dean Kramer’s full email, including his open letter to federal judges, on the next page.)

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