SAN FRANCISCO—It would seem that law students interested in nabbing a coveted clerkship with the U.S. Supreme Court might consider applying first to Judge Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit.

After all, 18 former Reinhardt clerks have landed high court clerkships since 2005. Only a handful of federal appellate judges have a better record, according to a recent survey of Supreme Court clerks by the National Law Journal, a sibling publication to The Recorder.

But here's a tip: Don't tell Reinhardt you're drawn to him because of his reputation as a SCOTUS feeder.

“If they're aiming to go to the Supreme Court, I tell them to work for one of these others at the D.C. Circuit where they have constant contact [with the court],” said Reinhardt during a recent interview in his visiting chambers in the Ninth Circuit's San Francisco headquarters. “I think there are others who really push hard for their clerks because it's good for them. I don't because I just want to get clerks who want to work for me.”  

Among federal circuit courts, the U.S. Court of Appeals for the Ninth Circuit has sent the second-highest number of clerks on to the U.S. Supreme Court during the tenure of Chief Justice John Roberts, according to the NLJ's data. Of the total 487 Supreme Court clerks for the period, more than 70, or nearly or 15 percent, came from the Ninth Circuit.

Reinhardt's advice to potential clerks about the D.C. Circuit is correct. The Ninth Circuit tally was surpassed by the smaller U.S. Court of Appeals for the D.C. Circuit, which saw roughly 170 clerks land positions at the high court during the period.

Reinhardt said he attributes his personal record of landing clerks at the high court “to the fact that I get the best clerks, and at least five of the justices know that.”

Among current justices over the past dozen years, Reinhardt, one of the most liberal federal appellate judges in the country, has placed two clerks each with Justice Stephen Breyer and Justice Elena Kagan, three with Justice Ruth Bader Ginsburg, four with Justice Sonia Sotomayor and two with Justice Anthony Kennedy, a former Ninth Circuit colleague.

Former Reinhardt clerk Andrew Crespo, now a professor at Harvard Law School, also clerked for Breyer and Kagan.

“I tell my clerks, 'Don't count on me.' I don't do anything to push them ordinarily,” Reinhardt said. “I have a problem doing that, and I think they all know it. My clerks are all so good. I hate to single one out above the others, and I don't really know at the end of the year which one's the best. Justice Sotomayor and Justice Breyer, in particular, get frustrated when I refuse to say it's the best one I have, because I don't really know.”

As for his own selection process, Reinhardt said he relies on the recommendations of a network of former clerks who are now law professors: Harvard's Crespo; Yale Law School Dean Heather Gerken; Jeffrey Fisher, the co-director of Stanford's Supreme Court Litigation Clinic; and “four or five” former clerks at Michigan among them.

Reinhardt expressed concern about the lack of diversity among the clerks the Supreme Court ultimately takes up. According to the NLJ's survey, 13 of the 18 Reinhardt clerks who have gone on to serve at the high court were men and 14 were white. Reinhardt says he always tried to have a diverse group of clerks himself, but he said one would have to ask the justices about why they hire who they hire.

“I always tell my clerks I want to have a diverse group, but it's not always easy to get them,” Reinhardt said. “One reason is they're in great demand, because there are other judges who also recruit them.”

Other Ninth Circuit Feeders

According to the data, three Ninth Circuit Judges besides Reinhardt landed among the top 20 feeder judges in the country—former Chief Judge Alex Kozinski and Judges Diarmuid O'Scannlain and William Fletcher.

At least 24 former Kozinski clerks have gone on to clerk on the Supreme Court, including 14 hired by Justice Anthony Kennedy alone. Kozinski clerked for Kennedy when the justice previously served on the Ninth Circuit. Kozinski's influence on Kennedy and the court will almost undoubtedly take a hit in the wake of allegations of lewd behavior and inappropriate comments from female clerks and externs, which have resulted in a formal complaint being filed against him by the Ninth Circuit's chief judge. More than a dozen O'Scannlain clerks, and at least seven former Fletcher clerks landed Supreme Court clerkships between 2005 and 2017. (The National Law Journal's study tracked only immediate past clerkships.)

Kozinski, who sat for an interview for this story prior to the Washington Post's Dec. 8 story detailing allegations from six former Ninth Circuit clerks and externs, said his record of placing clerks was a point of pride and that, if one looked at a longer period of time, he'd likely top the NLJ's  list of feeder judges, instead of ranking No. 4, since he's been on the Ninth Circuit bench since 1985.

At the same time, Kozinski says “I actually don't believe in the notion of a feeder judge, really.”

“I think it's sort of backward,” said Kozinski of the concept. “Once you become a feeder judge, you tend to attract the kind of people who are likely to go on. In some sense it's self-perpetuating.”

Miscellany

According to the survey data, Ninth Circuit Judges M. Margaret McKeown, Sandra Ikuta and Paul Watford, an Obama appointee, have each sent at least two clerks to the court. U.S District Judge Charles Breyer has sent three clerks—two hired by his brother, Justice Stephen Breyer and one hired by Justice Ruth Bader Ginsburg. California Supreme Court Justice Goodwin Liu on the California Supreme Court has sent at least two.