Law students, you can (and, maybe increasingly, should) say "no" to (some) judicial clerkships
A generation ago, a typical federal judicial clerkship experience looked like this:
A student would graduate from law school around May and begin a one-year (or sometimes two-year) clerkship in August. The graduate would then enter into legal practice—a firm, the government, or public interest practice—and begin a career in the second or third year out of law school. The graduate might have to move twice (to a clerkship, and then to a job) as opposed to once (to a job). The graduate at 25 years of age might begin the “ordinary” legal career at 26 (or 27). The clerkship was a “learning” opportunity—judges mentored clerks and helped develop their writing in that first year out of law school. (This was a system common in state courts, too.)
The system has radically changed in a generation.
Total placement into federal judicial clerkships among recent graduates has slid roughly 10% in the last decade.
And that’s despite the fact that the federal judiciary is very well staffed—judicial vacancies peaked around 2018, but they at recent stable lows and consistent with staffing a decade ago.
That means a comparable number of federal judges are hiring fewer recent law school graduates.
So, how are they filling positions? It could be an uptick in career clerks, but that doesn’t appear to be all of it.
A generation ago, virtually all Supreme Court clerks had just one prior clerkship experience. Now, nearly all of them have two, and sometimes three, clerkship experiences. We’re starting to see “stacking” of clerkships as an increasingly common practice. More students than ever are clerking for multiple federal judges. And more are clerking after graduation. Yale Law, for instance, has gone so far as to include an asterisk beside its clerkship statistics to add the number of clerkships for graduates that begin after graduation. For the Class of 2022, that’s 51 among graduates and another 30 after graduation. That was 42 and 43 for the Class of 2021—yes, more graduates had clerkships that began at least one year after graduating than in that initial year.
These two practices appear to be diverging by the type of judge. And here, this is something more anecdotal to report. And this report is overwhelmingly about court of appeals judges, a smaller cohort of all federal judges but who tend to hire three or four clerks each year as opposed to one or two more common for district courts.
Republican-appointed judges, particularly those appointed by President Trump, have had a fairly aggressive hiring plan. They have increasingly relied on interviewing and hiring first-year law students—and sometimes hiring them not for immediately after graduation but for some years out. And they are increasingly interested in “stacking” clerkships, as many of them are young, ambitious, and style themselves “feeders.” Given how many of them have appeared on one of Trump’s many “lists” of potential Supreme Court nominees, it is not a great surprise that they are vying over a small pool of clerks—not just outstanding students, but sufficiently credentialed to be potential Supreme Court clerks. It also reflects some desire to hire clerks who have already been trained elsewhere—in effect, making the job more efficient for the judge, who can spend less time “training” the clerk and more time managing the clerk’s work product.
Democratic-appointed judges, particularly those appointed by President Biden, have stuck more closely to the “plan,” which means that students must have at least two years of grades before being considered. But these judges increasingly prefer work experience—which means, hiring fewer clerks directly out of law school. They are not as aggressively “stacking,” but there are more appellate+district clerks than a generation ago (whereas many Republican judges are moving toward appellate+appellate clerks), although the combinations can of course vary. Like the Republican-appointed judges, hiring clerks with more work experience is more efficient.
This change has shifted a lot of costs.
For one, judges used to play a greater role as mentors training new law school graduates. If law school graduates are starting their careers elsewhere before clerking for a judge, the model has shifted away from that judge-led training and mentorship model. Not entirely, of course—clerks who are only a year or two removed from law school still have much to learn. But there is an expectation that the earliest training may well happen elsewhere. Sometimes that’s other judges. And sometimes that’s law firms. I suppose as long as law firms are willing to accept that role—spending the earliest years training and seeing those associates (who cannot practically be staffed on major long-term matters) leave for a clerkship (or two or three), perhaps to return—then the model will work.
For another, judges often had clerks serve as “ambassadors” for their chambers, and for the bench more generally, as attorneys go practice in the legal profession. If “stacking” is increasingly common, then there are simply fewer such ambassadors out in the world.
And a major cost is on law school graduates. At the beginning, I noted that 25-year-old graduates might move twice after graduating law school and begin their careers at 26. Now, the expectation is increasingly to move three or four times and push of the true beginning of a career path until perhaps 30, depending on how many years the interim jobs take place. And that can of course be later for students who are not 25 but older, who perhaps took a few years off between college and law school.
This is a significant burden for law school graduates. The moving costs are high. The pressure to postpone personal or family decisions given the itinerant nature of serial jobs is significant (a point I’ve raised relatedly in the law school teaching market, too).
The opportunity and financial costs of missing or disrupting years of typical legal service can be high. On the financial front, it used to be a generation ago that starting salaries were $160,000 (excluding bonuses) and a clerkship salary was around $50,000 with an expected bonus of $50,000. That gap has widened significantly. Starting salaries are now $225,000 (excluding bonuses) and a clerkship salary is around $65,000 with an expected bonus of $75,000 (potentially more for multiple clerkships).
But a graduate who clerks for three judges enters as fourth-year associate… essentially has the litigation skills of a first-year associate and a long ramp-up. Yes, a graduate can hit the ground running and ramp up more quickly than a first-year associate. But some skills (including navigating firm culture, and building trust and relationships with clients) cannot be short circuited. A graduate who works at a firm for a year or two, then heads off to clerk for a couple of judges before returning, likewise returns as a fourth- or fifth-year associate with a kind of soft reboot at the firm. And at some firms, non-share partnership arises in the sixth or seventh year, and pressure to perform well in a shorter period of time is high. Client development is trickier if grads are serially clerking or interrupting their practice to clerk.
For first generation law school graduates, these pressures can be particularly acute. They are navigating the legal profession with greater uncertainty, and they have the opportunity to make substantial money in practice, but then face countervailing pressure to give that opportunity up and move, perhaps repeatedly, with increasing uncertainty—and increasing questions about the value proposition.
It would be interesting if NALP or some other researcher could track future longitudinal outcomes of judicial clerks. Does stacking clerkships reduce the likelihood that someone remains in “big law” or makes partner? Or, maybe my intuition is wrong and it has no effect. Does it means people are more likely to head into government or become a judge themselves sometime? What are the longitudinal effects that we can expect?
But law students do need to ask hard questions. The first is, what’s the value of the clerkship? It is valuable, to be sure. It is the experience, the credential, seeing what goes on inside a judicial chambers. But students might want to ask hard questions about the value add of a second or third clerkship. Does the varied experience of district v. appellate or state v. federal offer enough potential value, or is the incremental benefit much smaller after having worked in a judicial chambers? Is being connected to two sets of judicial clerk alumni in their network of sufficient value? What are the lifestyle costs for family or personal life if these one-year serial positions in different cities stack up? If I want to clerk for the Supreme Court, what are my true odds in getting there with a third as opposed to just two clerkships, or a second as opposed to just one? What opportunity costs am I losing at my law firm, and am I willing to give that up?
Career development offices have every incentive to place students into clerkships. Students have great desire to obtain clerkships. Judges want the most capable and qualified candidates.
But we may be at a breaking point for the current system. Students should be asking hard questions, the kind of questions that didn’t need to happen a generation ago. Students can—and sometimes should—say no to certain clerkships. There are material tradeoffs worth considering. (And for more, see former Judge Gregg Costa, here.) But they are hard tradeoffs, and ones not always intuitive to law students barely a semester into law school.
I’m sure this post will not be popular with judges. But, on the flip side, I might suggest that law students in 2024 have much more to consider when committing to a job that takes them into the year 2030, and perhaps some recallibration is in order.
UPDATE August 2, 2024: I’m very grateful for the extended feedback I’ve received on the post, with a lot of mixed feelings! I thought a few additional thoughts might be in order.
First, as I emphasize, I think judicial clerkships are a great thing! I think they add tremendous value for the bulk of law students, particularly those who are interested in litigation. As I write, “It is valuable, to be sure. It is the experience, the credential, seeing what goes on inside a judicial chambers.” Do not lose sight of the good things! The post, however, focuses on “some” clerkships, particularly stacking clerkships, and some of the tradeoffs that come.
Second, I think the decision of many judges to move away from hiring new grads to grads with work experience is a suboptimal thing. I highlight some of the reasons for the tradeoffs in the post, and I entirely understand why judges would prefer to do it. But I think it is worth exploring—in another lengthy blog post, perhaps!—about what the temporary clerkship role is and what it ought to be. That is, what is the reason for temporary as opposed to career clerks? What is the mentorship that is expected, or preferred, in the temporary role, if any? It’s another heavy exchange worth considering.
Third, things are heavily context-specific. It is quite possible that a second or third clerkship, stacking clerkships, moving frequently, will be good things for you in your individualized situation. But, I think, the value is probably less than many anticipate, and there are hard questions and tradeoffs that should be asked and answered. I cannot give complete guidance because every situation is different—quite literally idiosyncratic. But it is worth having an honest conversation, and I think these are some of the questions that can help students figure things out.
Fourth, it would be nice to have a lot more data than the limited data sets I have and the anecdotal compilations I have here. It would be nice to know how students with one clerkship v. multiple feel about it after the fact. It would be nice to track their careers. It would be nice to evaluate whether clerking immediately after graduation or taking time to work is helpful. It would be nice to know if people didn’t have to move but could clerk in the same city as their job, or clerk twice in the same city, made the experience better. I just don’t know. But these are questions that, I think, are worth asking and exploring.