In April 2009, a law student at American University asked Justice Scalia how a student from her school could become "outrageously successful" without "connections and elite degrees." (The clip begins around 52:00.) Scalia laughed out loud. He answered, "Just work hard and be very good." But then he digressed to a story about Judge Jeff Sutton.
Let me tell you a story. By and large, unless I have a professor on the faculty who is a good friend and preferably a former law clerk of mine whose judgment I can trust–I'm going to be picking for Supreme Court law clerks, I can't afford a miss. I just can't. So I'm going to be picking from the law schools that are the hardest to get into, they admit the best and the brightest. They may not teach very well, but you can't make a sow's ear purse out of a silk purse. If they come in the best and the brightest, they are probably going to leave the best and the brightest. One of my former clerks [Judge Jeff Sutton] who I am the most most proud of, now sits on the Sixth Circuit Court of Appeals. And I always refer to him as one of my former law clerks. He wasn't one of my former law clerks. [Sutton] was Lewis Powell's clerk. After Lewis took senior status, Lewis didn't have much work. [Sutton] worked full time for me. So I couldn't tell the difference between [Sutton] and my other clerks. But I wouldn't have hired Jeff Sutton. For G-d's sake, he went to Ohio State. [Scalia laughs.] And he is one of the very best law clerks I've ever had. He is just a brilliant guy. So don't tell me this stuff about "what do you have to do to be successful." You have to be good. I think we're done.
Scalia relayed this story several times over the years, and he was fond of telling it. The upshot is that under his own policy, he would have never hired one of his favorite law clerks.
In November 2008, during my 3L year, Justice Thomas visited the George Mason University School of Law. After a lecture in then-Professor Rao's class, I asked Justice Thomas what it would take for a GMU grad to clerk on the Supreme Court. (Apparently I had a similar thought as the American student would some months later.) Justice Thomas answered, matter-of-factly, "I hired Will Consovoy, ask him," and pointed at his clerk. I don't think I had met Will Consovoy before, but I would never forget him. (Justice Thomas also signed my pocket Constitution that day, which still hangs on my wall.)
There were many differences between Justices Scalia and Thomas. One of them concerned clerk hiring. In OT 2008, Thomas hired law clerks from Creighton, George Mason, George Washington, and Rutgers. Thomas told students at the University of Florida, "They referred to my clerks last year as TTT, third-tier trash. That's the attitude that you're up against."
Things have gotten slightly better over the past decade. Justice Thomas still routinely hires outside the T14 (top 14, roughly defined). Justice Alito has joined the mix with clerks from BYU, George Mason, LSU, Minnesota, Ohio State (yes, THE Ohio State University), and a few others. Justice Gorsuch has hired grads from Iowa, Mississippi, and BYU. And Notre Dame, which is skyrocketing in the clerkship rankings, is consistently placing grads at the Court. But otherwise, the Justices exclusively hire from elite, T14 law schools. Would anyone say that the non-T14 clerks hired by Justices Thomas, Alito, and Gorsuch, are inferior to the regulars from Harvard, Yale, and Stanford? I personally know many of these clerks, and they have gone on to great accomplishments.
Could one say that the Justices have imposed a boycott of every other law school outside the T14? I'm sure they would resist the characterization. For sure, they have not announced any public boycott. But the practical consequences of their hiring pattern is that students who graduated from non-elite law schools are persona non-grata. How many Jeff Suttons were missed by having such a restrictive view of hiring? On a related note, Justice Ginsburg had a de facto boycott of all HCBUs.
Judges on the inferior courts also restrict hiring to superior schools. It is well known that certain judges will limit their hirings to certain elite institutions. I learned this lesson firsthand. When I was a 3L, I applied to many federal clerkships–even those that I knew were out of my league. (I encourage you to read about my clerkship application process.) One of those judges was Frank Easterbrook of the Seventh Circuit Court of Appeals, a true giant in the law. I did not get the clerkship–no surprise–and Judge Easterbrook sent a form email to explain why:
I must inform you that I have selected my clerks for 2010-2011. The task of attempting to choose from among so many people with excellent credentials has led me in the last few years to ask the Clerkship Committee of the University of Chicago, where I still teach, to make recommendations with the expectation that two outstanding people who pass that Committee's scrutiny will do well with me. The Committee this year recommended two outstanding students and I hired them.
This method has an arbitrary consequence for many, but there is an arbitrary quality about the whole clerkship selection process. My way of choosing clerks closes the doors to many excellent candidates, but the places my two clerks do not occupy will still be open in other chambers. You have my best wishes in finding a position with one of the many judges who have yet to choose.
Judge Easterbrook, as could be expected, makes sense. Limiting hiring to particular schools does have "arbitrary consequences." It is a myth that federal judges fairly consider every clerkship applicant on an individualized basis. Considering applications from some schools, but not others, is a useful heuristic for busy judges. Ditto for law firms. Some firms will not hire at non-elite schools. This is well known. (For those curious, I have hundreds of scanned and OCR'd rejection letters from federal judges and law firms; I still haven't found quite the right opportunity to publish them, but I will at some point.)
Is it fair to say that Judge Easterbrook boycotted every single law school other than UChicago? Probably not. But that is the practical consequence. At least Judge Easterbrook had the courtesy to send a candid response explaining why my (and many other) applications never made it off the pile. The rejection was in no way a reflection of my candidacy–other than the fact of where I chose to go to law school.
At the time, I had also applied to Judge J. Harvie Wilkinson III of the Fourth Circuit Court of Appeals. I have no record of receiving a reply from him, though I have no doubt my application was dinged at the outset. I went to the wrong public law school in Virginia. So be it. I am blessed to have clerked for two remarkable judges, and would not change a thing.
This background brings me to the present. Last week, Judge Wilkinson opted to speak to the National Law Journal about the Columbia boycott. Judges are under no obligation to talk to the press. But Judge Wilkinson thought it important enough to use his stature to signal his distress at Judges Ho, Branch, and Solomson (perhaps more effective than flying a flag upside-down.) Judge Wilkinson apparently believes that judges have some role to play in calling out when they think other judges misbehave.
Judge Wilkinson offered this comment:
I will not be participating in any of these boycotts. It all smacks too much of guilt by innocent association.
Students should be seen as individuals. Many have striven to achieve commendable records. They have every right to be judged by their accomplishments, not blacklisted based on what institution they may happen to attend.
I was struck by this quote, as having gone through the application process. Has Judge Wilkinson, over his four decades on the bench, viewed all law clerk applicants "as individuals"? Has he, or his staff, rejected any applicants solely on the basis of "what institution they may happen to attend"? How many clerks has he hired outside the T14? How many has he interviewed, or at least seriously considered? I don't have the answer to these questions. Judge Wilkinson surely knows. The National Law Journal and other outlets can ask Judge Wilkinson about his hiring practices, and whether he boycotts 95% of law schools. He might respond that lower-ranked schools cannot produce clerks of the right caliber. But that cannot be right as a blanket rule. What about Judge Sutton, and the other clerks hired by Justices Thomas, Alito, and Gorsuch from non-elite institutions. Such a response would "smack too much of guilty by innocent association."
Judges in glass robes should not throw stones.
Aliza Shatzman, who founded the Legal Accountability Project, criticized the recent boycott of Columbia. But she also faulted judges for not being transparent about their hiring practices:
This manufactured controversy is just another example of the lack of transparency and equity in clerkship hiring. While most federal judges do not resort to attention-seeking tactics, many do prioritize or deprioritize certain law schools — and other characteristics — in their hiring decisions. This lack of transparency not only perpetuates inequity, but also undermines the integrity of the judiciary.
I agree with Shatzman. All things being equal, I would prefer that judges be candid about which law schools they would hire from, and which law schools they would not hire from. Put it right on OSCAR! Indeed, it would be ideal if judges can explain why some schools make the cut while others do not. Judge Easterbrook's honesty was refreshing to 3L Josh. This transparency would save a lot of time and effort on behalf of applicants. But I suspect making these announcements public would make judges feel uncomfortable. They are happy to throw applications from 95% of schools in the garbage, but would never want to admit as such. Quiet boycotts are always far simpler. I think there is some virtue in a public, reasoned, and prospective boycott, but you knew that already.
In the past, I have proposed eliminating Supreme Court law clerk positions altogether, and radically altering clerkships in the lower courts. The experiences of the past few years have made me think these options are worth pursuing.
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