Supported by a plea from more than 100 law school deans, an ad hoc group of federal appeals judges has reinstated a plan for recruiting future law clerks after their second year in law school, rather than basing the hires on first-year performance.

The new hiring plan, promulgated on Feb. 28, mirrors a policy that dated back to 2003 but collapsed in 2013 when fiercely competitive individual judges ignored the rules and pursued top first-year students for clerkships, some of whom went on to Supreme Court clerk positions. Former Ninth Circuit Judge Alex Kozinski famously flouted the earlier rules, once joking that he started recruiting clerks “at birth.”

“The clerkship process now begins immediately after our students' first year,” the law deans wrote in a letter dated Sept. 17, 2017. “That change has altered the first-year experience, raised important distributional concerns, and undermined our faculties' ability to provide judges with the information they need to make wise hiring choices.”

The deans added, “The first year has never been without its stresses. But students worry more than ever before about grades, recommendations, and class rank.”

Under the new plan, for students who entered law school in 2017, “judges will not seek or accept formal or informal clerkship applications, seek or accept formal or informal recommendations, conduct formal or informal interviews, or make formal or informal offers before June 17, 2019.” Similarly, new students beginning law school in 2018 would be off-limits for judges until June, 2020.

Another part of the plan would curtail what have become known as “exploding offers”—now-or-never hiring offers by judges, aimed at preventing clerkship candidates from interviewing with other judges. “A judge who makes a clerkship offer will keep it open for at least 48 hours, during which time the applicant will be free to interview with other judges,” the new policy states. The new plan is a two-year pilot program.

Among other things, pushing back the starting gate for interviews and calming the feeding frenzy could help improve diversity among law clerks, the deans agreed.

“Students without professional networks may arrive not knowing what a clerkship is, let alone how to attain one,” the letter stated. “The sooner hiring occurs, the more likely it is that these students will be disadvantaged. We have also heard anecdotal information that the accelerated hiring schedule has reduced the number of women and students of color in the pool. In addition, students do not learn at the same pace. The accelerated schedule does not give all of our students a chance to shine.”  

Heather Gerken

In The National Law Journal's stories last December on the dearth of diversity among Supreme Court law clerks, Yale Law School Dean Heather Gerken said the race to interview first-year students for clerkships “has had a dramatic effect on our pedagogy. It makes the first year more important than it should be. Some students need a longer runway. The late bloomers don't get a fair shot.” Gerken was a signer on the letter, as was Harvard Law School Dean John Manning.

In a memo sent to Yale students Wednesday, Gerken applauded the new plan. “It now appears that real improvements are finally at hand,” she wrote, adding that she worked with Dean Trevor Morrison of NYU Law School and other deans “to support the judges carrying this initiative forward.” Above the Law posted the contents of Gerken's memo Thursday night.

The ad hoc group was composed of the chief judges of four of the 12 geographic appeals circuits: the D.C. Circuit's Merrick Garland, the Second Circuit's Robert Katzmann, the Ninth Circuit's Sidney Thomas and Diane Wood of the Seventh Circuit. It is not clear how many other judges have already embraced the new policy or will abide by it. No enforcement mechanism is included in the announcement. The D.C. Circuit has posted the plan on its web site.

University of Virginia School of Law professor Micah Schwartzman, who heads the school's clerkship committee, said Thursday the new policy is “a good thing. The judges are trying to create some structure in the process.” The past few years have been “chaotic,” he said, leading some qualified candidates to avoid the clerkship process altogether.

Brigham Young University Reuben Clark Law School professor Aaron Nielson, who has written extensively on the old clerk hiring plan and its demise, reserved judgment on the new one. “I'm very curious to see the details and see what is different from the last plan.”