This week, two posts on federal judicial clerkships particularly caught my eye.  First, at Concurring Opinions, David Hoffman reported on the “quickly unraveling clerkship market.”  Under the “Federal Judges Law Clerk Hiring Plan,” law schools are not supposed to send supporting materials for student clerkship applicants, and judges are not supposed to interview student applicants, before September of the students’ third year.  This is intended to stop a race to the bottom among the judges, who might otherwise move their hiring processes ever earlier in order to snag the most promising clerkship candidates.  (When I was a law student in the mid-1990’s, the norm was hiring midway through the 2L year.  This seemed truly absurd at my law school because the first semester was ungraded, and third-semester grades were not yet available when clerks were hired; judges were thus selecting clerks based on only a single semester of grades.)

According to Hoffman, the “dam is about to burst,” as more and more judges and law schools are violating or circumventing the Plan.  I was particularly intrigued by his observation that judges are circumventing the Plan by hiring practicing lawyers instead of law students.  This is certainly nothing new — I had several classmates who moved from practice to clerkship and back again over our first few years out of school — but I wonder if it has become more common in response to restrictions on hiring law students.

I also wonder if judges tend to get better clerks when they hire practitioners.  

The practitioners’ experience would surely be an asset, but perhaps less than one might initially think.  Research and writing skills are of paramount importance in a clerkship, and some practice settings provide far more research and writing experience than others.   I suspect that many newly minted law graduates, especially those who have honed their research and writing skills through law review, are about as well prepared as many practitioners to step into the unique demands of a federal clerkship.  (At least as far as Bluebooking and other technical aspects of writing, my own skills have never been sharper than they were at the end of my year’s service as editor-in-chief of a journal at my law school.)

For law students and practitioners alike, the most coveted clerkships are those at the United States Supreme Court.  With the extraordinary prestige of these positions comes extraordinary public scrutiny of the hiring processes.  In this regard, Jason Mazzone has an insightful post at Balkinization on the alleged ideological polarization in the Justices’ hiring.  His post responds to a recent New York Times piece by Adam Liptak.  Here is Mazzone’s recapitulation of the Liptak piece:

He contends that whereas in years past the Justices hired law clerks with a mix of political perspectives, today they tend to hire clerks who share their own political ideologies. How do the Justices know which applicants are conservative and which are liberal? According to Liptak, the Justices use a proxy: the party of the President who nominated the circuit court judge for whom an applicant previously clerked. Liptak explains: “These days the more conservative Justices are much more likely than were their predecessors to hire clerks who worked for judges appointed by Republicans. And the more liberal Justices are more likely than in the past to hire from judges appointed by Democrats.”

Although Republican-appointed Justices have been hiring more clerks from Republican-appointed lower-court judges than in Liptak’s pre-1980 comparison period, Mazzone points out that this may not reflect more ideological hiring.  Instead, it may simply reflect the fact that there are far more Republican appointees on the bench today.  In 1980, only 37 percent of circuit judges were Republican appointees, but today that number has risen to 57 percent.  Given a much larger pool of candidates clerking in the lower courts for Republican appointees, one would expect a substantial increase in the number of Supreme Court clerks with that background even without ideological hiring.

Mazzone also notes that, given the diminished opportunities for landing a clerkship with a Democratic judge, many more liberal-leaning clerkship candidates may be willing to “settle” for a job with a Republican judge.  Beware, he suggests, of identifying the clerk’s politics with the judge’s.

Even assuming increased emphasis on ideology in clerkship hiring, Mazzone questions whether we ought to be concerned about the absence of liberal voices in the chambers of conservative Justices and of conservative voices in the chambers of liberal Justices.  I’ve never clerked at this august level myself, but I suspect that Mazzone is right when he argues that fresh-faced, twenty-something clerks are generally incapable of moving the Justices from their accustomed positions in ideologically charged cases.

Still, I wonder if Mazzone short-changes the value of having different points of view in chambers.  Not all of the cases on the Court’s docket are so intensely political, and the Justices’ consideration of the lower-profile cases — say, the many cases presenting rather obscure questions of federal statutory law — may benefit if the Justices have at their elbows clerks who can draw their attention to aspects of the cases they might be prone to overlook.  Ideological diversity within chambers may also serve to promote great civility on the Court and improved communication between the Justices.