Brett Kavanaugh, Clerkships, D.C. Circuit, Federal Government, Federal Judges, Feeder Judges, Job Searches, Law Schools, Merrick Garland

The Law Clerk Hiring Plan: Really, Really Dead Now

When it comes to the Law Clerk Hiring Plan, the voluntary set of guidelines to put federal law clerk hiring on a standard timetable, one might say, “The ship be sinking.”

Actually, scratch that. The ship be sunk, and barnacles are growing all over its hull.

We declared the Plan dead last June, when at least two top schools decided not to participate in it. But now the Plan is, well, dead and growing cold and decomposing.

Yesterday brought word that an über-prestigious court, one that gunners across the land would sacrifice body parts to clerk for (who needs a pinky finger anyway), is abandoning the Plan….

The D.C. Circuit: high temple of law school gunners.

The court in question: the Most Holy D.C. Circuit, second only in prestige to the U.S. Supreme Court. Even though its docket, heavy on administrative law, might not make for the most fun clerkship experience, the prestige more than makes up for it. Four out of nine SCOTUS justices are former members of the D.C. Circuit, and current members of the D.C. Circuit include several leading feeder judges.

Yesterday the D.C. Circuit announced that its judges won’t be participating in the Law Clerk Hiring Plan. I learned of the news from Mike Scarcella’s (excellent) Twitter feed, but it was also covered by Howard Bashman and Orin Kerr. From the notice just posted to the D.C. Circuit’s website:

Although the judges of this circuit would uniformly prefer to continue hiring law clerks pursuant to the Federal Law Clerk Hiring Plan, it has become apparent that the plan is no longer working. Because participation in the plan is voluntary, a significant percentage of all United States circuit judges must agree to follow it if it is to work appropriately. During the past few years, a significant and increasing number of circuit judges around the country have hired in advance of the plan’s interview and offer dates, and it is likely that they will continue to do so. As a result, continued adherence to the plan is no longer fair and equitable to either students or judges.

The Plan “is no longer working” — understated but accurate. And it’s hard to argue with the statement that “continued adherence to the plan is no longer fair and equitable to either students or judges.”

But here’s at least one concession to civilized behavior:

We stand ready to work with the judges of the other circuits to develop an appropriate successor to the current plan. In the meantime, however, the judges of this circuit will hire law clerks at such times as each individual judge determines to be appropriate. We have agreed that none of us will give “exploding offers,” that is, offers that expire if not accepted immediately. Rather, when a judge of this circuit gives a candidate an offer, the candidate will have a reasonable time to consider the offer and interview with other judges before accepting or declining. Additional practices applicable to individual judges may be found on the judges’ OSCAR pages.

So what’s a “reasonable” time? I’d say at least 24 or 48 hours (even if that might not give the prospective clerk a chance to “parlay” the offer and secure a clerkship with a more coveted judge). To my mind, a true “exploding” offer is one that requires on-the-spot acceptance or something pretty close to it. Of course, if a clerkship applicant can coordinate her interviews so that they’re in rough order of desirability, that’s great — it’s always nice to be able to accept a clerkship offer on the spot.

We gathered some reactions to the news from readers. Some were dismayed:

“Nail, meet coffin.”

“And the prisoners’ dilemma triumphs again…”

“This demonstrates that the ‘best’ among us in our profession are unable to work cooperatively toward the common good, or toward fairness. We deceive, undercut, and disregard each other. Yay, us.”

From a clerkships adviser in a law school career services office, who agreed with my assessment of the Plan as dead:

[I]t is really a shame that the judiciary couldn’t pull together on this. I know law clerk hiring is not high on their list of administrative priorities, but the lack of a plan shifts an enormous burden on to law schools and law students. I can’t help but think that the less organized federal law clerk hiring becomes, the more likely it is to be untouchable and reserved for the elite and connected. Of course, I understand that is usually the case, but what chance will even the most excellent students who are not otherwise connected have? And what about the impact on diversity?)

Another clerkships counselor offered a more cautious assessment, suggesting that the Plan might have some life left in it:

All we know is that it’s going to be a tough year nationwide for aspiring clerks in the class of 2014. No one knows which, when, or to what degree other courts/judges will follow the D.C. Circuit’s lead.

I wondered:

But wasn’t the D.C. Circuit one of the few top-shelf courts holding the Plan together? I feel that so many other courts were already off the Plan but some great clerkship candidates would “hold out” for the D.C. deliciousness. But now, why should you “save yourself” for Merrick Garland or Brett Kavanaugh when they might be moving early too?

This adviser responded:

Yes, it was, but that doesn’t mean that every district judge in Miami is going to start hiring 2Ls tomorrow. You’re talking about, like, 30 people nationwide who ought to even be thinking about Judge Garland. The expected change in THEIR behavior is just one little piece of the puzzle. We absolutely do not know right now what your game plan ought to be if you’re a 3.7 from UVA.

Other sources viewed the news more positively:

“The plan was silly anyway. In my day (2000-2001) it was still mainly a free-for-all, and it worked fine (and we applied with PAPER applications).”

“This will actually create some interesting opportunities for applicants. Some prestigious judges will hold to the plan (sort of), and will be hiring much later than everyone else. The same thing happened the last time the process fell apart. From personal knowledge, I can tell you that [the feeder judge I clerked for hired his clerks 5+ months after most other circuit judges were finished.”

“This is a good thing — the plan never worked because not all judges participated and it was chaos. I always wrote letters for students when they were requested regardless of the ‘plan.’ I feel that it’s on the student whether they want to apply and when.”

“Good for them, at least, for agreeing not to give exploding offers.”

My guess is that this will just make law clerk hiring take place even earlier. As Chief Judge Alex Kozinski has joked, he starts recruiting clerks “at birth.”

In my day, many clerks were hired in the spring of 2L year. Such a system has winners and losers. The winners include people who did very well in their 1L year; the losers include “late bloomers” in law school, students who improve their grades and relationships with professors in their 2L and 3L years. (But one could argue that the people who do very well in their 1L year generally do well throughout law school, and that the late bloomers can always apply for clerkships as 3Ls or after graduation.)

Interestingly enough, the D.C. Circuit’s action came on the heels of changes to the Plan that were perhaps intended to “save” it. From a 3L tipster:

This is on top of the Hiring Plan moving itself up by about two weeks. (A gesture toward fixing things, but hardly something that actually addresses concerns.) Seems like the plan is not imploding; it’s imploded. At least at the Circuit level, the plan isn’t even nominally followed at this point. The ones who say they do usually have some backdoor method of identifying and selecting clerks in advance.

Here’s a bright side to the D.C. Circuit’s dissing the Plan:

[As a 3L] currently dealing with COA applications now, it’s frustrating to deal with smokescreen and lack of transparency. I’m ecstatic that the D.C. Circuit is being honest about what they’re doing; I just wish the committee in charge of this could work toward informational transparency (which I hope judges would get behind) rather than trying to get Article III judges to listen to a starting pistol….

A lot of students realize that D.C. Circuit judges weren’t following the plan before either. Many of the judges use colleagues in academia to identify applicants in advance of Labor Day. So even though some interviewed and extended offers on-plan, the student had been selected long before. So abandoning the plan does everybody a favor and at least puts it out in the open.

Openness and transparency: here at Above the Law, we’re all in favor. If you can’t get everyone to behave in a certain way, it would at least be nice to know the rules of engagement.

They say that all is fair in love, and war, and the combination of the two called law clerk hiring. But even war has some laws to govern it.

UPDATE (1:45 PM): A D.C. Circuit clerk just wrote in defense of their docket: “The unusual docket actually makes for a great clerkship, even if you’re not particularly interested in administrative law. The D.C. Circuit rarely hears certain types of cases that are common among other circuit courts — Social Security, immigration, etc. Those missing cases change the dynamic quite a bit from clerking somewhere like the 9th Circuit.” (And, in fairness to the D.C. Circuit, the court also gets high-profile appeals in sexy areas of law — e.g., cases related to the war on terror.)

UPDATE (8:00 PM): Professor Aaron Zelinsky has an intriguing proposal for fixing the law clerk hiring mess.

(You can read the full D.C. Circuit announcement on the next page.)

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