Prior clerkship experience of Supreme Court clerks has changed dramatically in the last 10 and 20 years

David Lat’s tireless efforts to chronicle the hiring of Supreme Court clerks prompted me to look at a trend that’s developed in recent years. It increasingly appears that multiple clerkships are a prerequisite to securing a Supreme Court clerkship. So I looked at the data for this October Term 2023 class, along with comparisons to the credentials of the OT2013 and OT2003 classes. The results were pretty dramatic. (I looked only at the 36 clerks of the active justices, and the 35 when Chief Justice Rehnquist served on the Court and only hired three clerks instead of the usual four.)

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For OT2003, just twenty years ago, 33 clerks came off of one previous court of appeals clerkship, and just two others had multiple clerkships (one of which was not on the federal court of appeals). In 2013, the number off a single prior court of appeals clerkship had dropped to 25. Another nine had two prior clerkships (one of which was not court of appeals), and two more had newer development of two separate court of appeals clerkships. Today, for October Term 2023, just seven of the 36 clerks came from one prior court of appeals clerkship. Fourteen had two prior clerkships, at least one of which was not on the federal court of appeals. And 11 had two prior court of appeals clerkships, and four with the novel development of three prior clerkships.

I’ve lamented that the hoops to jump through for a law school teaching position often involve a series of short-term stints and moves over a course of a few short years. Likewise, I’m not sure this is a particularly welcome development. Admittedly, Supreme Court clerks are a fraction of career outcomes. But many more, I think, are likewise chasing similar credentials of serial clerkships even if they do not get a Supreme Court clerkship in the end. I am not sure that it redounds to the benefit of law students, who as fourth or fifth year associates have much higher billing rates and expectations, but much less practical experience in the actual practice of law. For judges, I am sure that clerks with experience are beneficial, but in previous eras that role may have been given to a career clerk. I don’t know what the longer-term ramifications are, but it’s a trend I’m watching.

How can we measure the influence of President Biden's court of appeals judges?

Recent media reports have been discussing President Joe Biden’s influence on the federal judiciary, including the rapid pace of nominating and ensuring confirmation of federal judges. And it’s been something of a proxy for “influence “ or “impact.” It’s true that more judges participating in argument and voting in panels, particularly judges on the federal courts of appeals, is one way of measuring influence.

But another way to measure influence could be to examine written appellate opinions. And it appears President Biden’s court of appeals judges are publishing opinions (at least, in their names) less frequently than other recent judges.

This is hard to measure comparatively across years, of course. For instance, the workloads of the court can change (consider the decline in cases before the Federal Circuit in recent years, for instance). The number of filled seats for active judges, and the workload of senior judges, can change. Consider, for example, that new appointees to a court that is shorthanded probably have much more work than new appointees to a court that has no vacancies, and a court with many active senior judges may have less of a workload of new appointees than a court without many such judges. The practices on each circuit vary wildly in terms of how often decisions are published per curiam or with summary orders rather than in the name of a judge. Getting up to speed if one was confirmed in the middle of a pandemic (say, summer of 2021) may have looked different than previous eras. In short, there are myriad reasons for differences.

Regardless of the reason, there may still be changes in output. I dug into the Westlaw database to try to collect some information and make some comparisons. Using the “JU( )” field (and later, the “DIS( )” and “CON( )” fields joined with the “PA( )” field), I looked at the 10 judges President Biden had confirmed in the first year of his presidency (really, calendar year 2021). (I excluded now-Justice Ketanji Brown Jackson, who was elevated to the Supreme Court in the middle of this window.) All judges were confirmed 14 to 20 months ago. I tried to exclude judges sitting by designation, names shared with others judges, Westlaw’s odd way of handling en banc, and so on, with a quick perusal of results and adjustment to totals.

These 10 Biden-appointed court of appeals judges from 2021 have combined for around 140 majority, named-author opinions (regardless of whether these opinions were “precedential” or "non-precedential”) through mid-February 2023. That’s around 14 per judge. (These 10 judges have also combined for around 31 concurring or dissenting opinions.)

I then went to President Donald Trump’s nominees. They had some similarities: there were 12 court of appeals nominees in 2017, confirmed between 14 and 21 months before February 16, 2019. These 12 judges combined for around 415 majority, named-author opinions. That’s around 34 per judge. (These 12 judges also combined for around 60 concurring or dissenting opinions.)

President Barack Obama had only three federal appellate judges confirmed in his first year. They combined for around 80 majority opinions by mid-February 2011.

As I mentioned, these are rough figures, likely off by a few in one direction or another, as the Westlaw fields are imprecise and I had to cull some data on my own with quick checks. There are probably other ways of looking at the data, including the number of arguments held, the length of time from argument to an issued opinion on a case by case basis, and so on. It’s also a very short window so far, and it’s possible that once the years stretch one we’ll see some smoothing out of the trends. But so far, Biden’s court of appeals appointees have been publishing fewer majority opinions in their names. That’s not to say their influence may not be felt elsewhere, particularly in shaping opinions authored by other judges, in per curiam or unsigned opinions, and so on. It also is not a measure of the influence of any particular opinion, as not all opinions are the same, and some have more impact than others. As I mentioned, the reason has many complexities one could consider. But on this one dimension of frequency, however, so far, there’s been a different pace.

Elite federal clerkships don't reflect the whole universe of student clerkship opportunities

Much has been written about disputes or “boycotts” of federal judges hiring clerks from particular law schools. But reviewing clerkships generally reveals that the debate right now is a niche subset of student employment opportunities.

It’s a very small subset of elite, “credentialed” clerkships in dispute at the moment. There are about 800 active federal judges not counting dozens, probably hundreds more active senior federal judges. They hire around 1200 or so recent law school graduates in term (one or two year) positions each year, not counting the many post-graduate hires or career clerks.

Schools like Montana, Alabama, Kentucky, Memphis, and West Virginia routinely outplace NY, Georgetown, and Columbia as a percentage of their graduates going on to federal clerkships right after graduation.

But the dialogue is obsessive about Yale (which places around 50 graduates a year into federal clerkships, and many more after graduation), with a sliver of judges like Judge James Ho on the 5th Circuit. Why?

The subset of elite, “credentialed” clerkships.

A peril of a set of highly credentialed, very young, former Supreme Court clerks nominated to the federal judiciary of late is increasingly sharp elbow among judges to be on the next Supreme Court “short list” (which, most recently for a Republican administration, appeared to include around 40 names, which is hardly short). That’s increasing competition for elite, pedigreed clerks.

The discussions of these clerks, as hired through an ideological valence, about reverence for their former Supreme Court bosses, about being “feeders” of clerks to the Court, and so on, all run this channel. But in truth, it’s a tiny fraction of the clerkship opportunities for law school graduates.

So many clerkships are about geographical fit, about helping launch careers of new graduates into a federal territory where they’ll ultimately practice and be ambassadors for the court (not judge the judge). The vast majority of the federal docket, too, is not about abortion or other hot-button topics, but grinding through 922(g) sentencing or suppression hearings or Social Security appeals or immigration disputes. It’s a judge working very closely with a very small team to draft work product.

In the elite subset of credentialed clerkships, there’s a lot to say about judicial hiring practices, complaints about it, ideological screens and preferences, and so on. But the vast majority of the federal clerkship experience, and the work, is nothing like the debate over the narrow subset that’s attracting significant attention. To the extent there are calls for “reform,” I hope those in positions of authority are mindful of this disparity as the conversation continues to play out.

Biden experiences unprecedented hot streak with ABA judicial nominee ratings

I’ve blogged about the ABA’s judicial nominee ratings, wondering whether the ABA was any good at evaluating nominees. You can take a look at its historical ratings.

But President Joe Biden is experiencing an unprecedented hot streak. He’s had 100 ABA judicial nominee evaluations returned, and not a single one of them had a single “not qualified” vote among them.

Mr. Biden is the third president, joining Presidents George W. Bush and Donald Trump, to reject the ABA’s “pre-screening” power in evaluating judicial nominees. In the past, a president would submit potential nominees to the ABA and receive a rating back. Most of the time, a majority “not qualified” vote would sink the potential nominee, and the person would never face a formal nomination. Mr. Bush first broke the tradition on grounds that the ABA tended to give more conservative nominees lower ratings than more progressive nominees.

President Barack Obama resumed the tradition. In his first three years, the ABA, apparently, gave outright “not qualified” ratings (a majority vote of “not qualified”) to 14 potential nominees. For another 7 nominees, the ABA gave a minority vote of “not qualified.”

As a point of comparison (Democratic to Democratic administrations), Mr. Biden has zero, majority or minority “not qualified.” That’s a remarkable achievement. Given how many candidates Mr. Obama named who received a “not qualified,” it suggests some combination of White House vetting and ABA reviewing have changed, although it’s entirely unclear how to measure this. But it does show that Mr. Biden is on an unprecedented hot streak.

Federal judges have already begun to drift away from hiring Yale Law clerks

On the heels of the latest controversy at Yale Law School, which David Lat ably describes over at Original Jurisdiction, a federal judge penned an email to fellow judges: “The latest events at Yale Law School, in which students attempted to shout down speakers participating in a panel discussion on free speech, prompt me to suggest that students who are identified as those willing to disrupt any such panel discussion should be noted. All federal judges—and all federal judges are presumably committed to free speech—should carefully consider whether any student so identified should be disqualified from potential clerkships.”

The truth is, Yale Law has already seen falling clerkship placement numbers in recent years. Incidents like this may harden some judges’ opposition. (There are caveats, of course, about what factors affect a judges hiring practices, the political salience of the issues here, and so on.)

I closely track federal judicial clerkship placement, and I have in recent years included a three-year average of clerkship placement in a report I release every two years. The latest version of that report is here. But we can look at some trends among a handful of schools. I select eight of the (historically) highest-performing: Yale, Stanford, Chicago, Harvard, Duke, Virginia, Michigan, and UC-Irvine. I’ll look at the last eight years’ placement. (Any choice of schools and window of time is a bit arbitrary, and I could go back for more data or more schools if I wanted. I didn’t look at 2012 or earlier data, so I don’t know what I’m missing with this cutoff.)

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Let me start by pointing out that the total placement among recent graduates has been fairly steady (see the chart). Schools report between 1150 and 1250 placements per year.

Some declines may well be attributable to vacancies in the federal judiciary that were unfilled. It does not appear that there is a “trend” of hiring materially fewer recent law school graduates in favor of clerks with work experience.

But this means that there’s roughly a fixed set of possible clerkship positions each year. If some schools are declining in placement we would expect to see other schooling improvement in placement. We can’t necessarily make those as one-to-one tradeoffs (e.g., a judge “stops” hiring from Yale and “starts” hiring from Chicago), but we can watch some aggregate trends.

I’ll start with percentage of graduates placed into a full-time, long-term federal clerkship. Admittedly, this doesn’t capture those who work then clerk. But there is some consistency in the reporting of data over the years. It makes no distinction among competitiveness of clerkships or types of judges (e.g., appellate or district court). Percentages can also fluctuate with the class size or be deceptive based on class size; I’ll dig into the raw figures in a moment.

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A few items stand out. Yale would typically place between 25% and 35% of its class into federal clerkships. Its number is low in 2020, but not the lowest in this time period. A couple of times, Stanford has placed a higher percentage of clerks than Yale.

But noteworthy is Chicago’s climb, from 10% of the class in 2013 to a whopping 27.6% in 2020, for the first time in recent memory besting Yale.

A few other trends are noteworthy. Apart from Irvine’s decline (which may coincide with the departure of founding Dean Erwin Chemerinsky), we see that the University of Virginia placing fourth with 17.5% placement. It’s done well in recent years, including occasionally edging out Harvard, but (apart from a 2017 dip) shows a trendline of consistent and perhaps improving placement.

Let’s now look at the raw totals of placement. Recall that these figures are going to help assess placement into the market of roughly 1150 to 1250 total new clerks a year.

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Harvard tops the list, as its 15-20% placement into clerkships still means a whopping 80 to 120 clerks a year, given its tremendous class size. But, it is notable to see it at an eight-year low in placement. Yale, which had consistently been second in raw placement for the previous seven years, has slipped to fourth in 2020, as both Chicago (56) and Virginia (55) placed more federal clerks than Yale (52).

Now, it’s perhaps no coincidence that Yale graduates just 197 students in the Class of 2020, its smallest class in this eight-year period, and perhaps correspondingly saw a decline in overall placement in different ways. Still, federal judges needed clerks in 2020. They simply looked elsewhere at slightly higher rates.

But at a larger level, it’s worth noting that federal judges do change their hiring preferences, and we may be witnessing some of that right now, regardless of whether some judges are “investigating” whether some graduates of some law schools have acted in a disruptive manner at a public event. There are, of course, any number of reasons why federal judges looked elsewhere, returning to a point at the top of this post. It could be that law students at some law schools, more than others, are self-selecting out of applying to federal judges (option for lucrative large law firm placement, competitive government positions, or the booming public interest sector).

And finally, it could also be that this blip is hardly a “trend,” and we’ll wait for a month to see what the Class of 2021 figures show.

"Brnovich, election-law tradeoffs, and the limited role of the courts"

I have this essay at SCOTUSblog, “Brnovich, election-law tradeoffs, and the limited role of the courts.” It begins:

Arizona “generally makes it quite easy for residents to vote.” This framing from Justice Samuel Alito in Brnovich v. Democratic National Committee set the path for the six-justice majority of the Supreme Court to reject challenges to two Arizona laws.

It marks a major victory for states that seek to innovate or tinker with their election laws — to expand them or to contract them. And it is the latest in a string of cases pushing the federal courts out of second-guessing state election laws.

And from near the end:

Brnovich is the latest in a line of cases suggesting that the federal courts should play a smaller role in the patrolling of how states administer elections. Crawford approved Indiana’s voter-identification law. The court’s 2019 decision in Rucho v. Common Cause said that federal courts should not entertain challenges to partisan gerrymandering under the Constitution. In 2020, it decided a series of cases, including Republican National Committee v. Democratic National Committee, which mostly instructed federal courts not to make late-breaking changes to how states administer elections, even in the middle of a pandemic. And it rejected a challenge to the presidential election in Texas v. Pennsylvania, letting state election officials’ decisions stand.

Without ABA, Biden judicial nominations rolling along

According to the Heritage Foundation’s “judicial appointments tracker,” President Joe Biden has more confirmed judicial appointments through July 7 of his first term (7) than the last six presidents combined (6). Granted, President Donald Trump confirmed a Supreme Court nominee, Justice Neil Gorsuch, in that window. But despite the Trump administration leaving relatively few vacancies, federal judges began retiring at an extraordinary clip at the beginning of the Biden administration. And the Senate, despite a 50-50 partisan divide, has moved expeditiously with nominations, aided by the decline of the filibuster for judicial nominations.

But it’s probably the Biden administration’s decision to dispense with the American Bar Association’s approval process that has expedited the process most of all in these early days. Since the George W. Bush and Trump administrations also dispensed with the ABA, it’s not clear that any administration will pre-clear nominations with it. Indeed, it is likely the Obama administration’s experience and frustration with the ABA’s process that made the decision for Obama-Biden alumni. Without the ABA’s pre-approval process, the Biden administration has been able to move much more quickly and much earlier on any given vacancy.

And the ABA has given glowing recommendations to every nominee thus far. We’ll see if that shine fades in the future, but it’s worth emphasizing a separate frustration from the Obama administration was the ABA’s decision to rate a number of its prospective nominees as “not qualified,” which the Obama administration dutifully scuttled. The Biden administration, it appears, would have no such plan to do so, and so it’s a wait-and-see approach if the ABA ever deems one of Mr. Biden’s nominees to be “not qualified.”

DOJ attorneys routinely mocked 2020 conspiracy theories ahead of January 6

From Professor Rick Hasen, the House Oversight Committee has documents showing the pressure that Mark Meadows and others in the White House had on the Department of Justice to investigate allegations of fraud. Principal officers in the Department of Justice, from my reading, ever flinched. Several resigned in the aftermath of the 2020 presidential election. But two emails struck me.

First was an email January 1 from Mr. Meadows to Acting Attorney General Jeffrey Rosen. Mr. Meadows alleged “signature match anomalies in Fulton county, Ga.” Mr. Rosen forwarded the email to another, “Can you believe this? I am not going to respond to the message below.”

Second was an email forwarded by Mr. Meadows to Mr. Rosen, with the title—I can’t make it up—”Brad Johnson: Rome, Satellites, Servers: an Update - YouTube.” Richard Donaghue at the Department of Justice emailed Mr. Rose, “Pure insanity.” Mr. Rosen responded about why these conspiracy theorists never brought evidence to the FBI, and about why he would not discuss these matters with Rudy Giuliani.

In short, the conspiracy theories surrounding the 2020 presidential election never got off the ground within any faction of the officials in the Department of Justice.

Supreme Court issues two unanimous reversals of the Ninth Circuit

The Ninth Circuit’s reputation as the most-reversed circuit has improved in the last decade, but days like today suggest that it still tends to buck Supreme Court precedent and is reluctant to correct errors en banc. Two unanimous reversals from the Supreme Court highlight that today.

The first is Garland v. Ming Dai, unanimously reversing a decision of the late Judge Stephen Reinhardt. Ming Dai earned a “dissental” from rehearing en banc from 10 active judges (Callahan, Bybee, Bea, M. Smith, Ikuta, Bennett, R. Nelson, Bade, Collins, and Lee) (joined by two senior judges, O'Scannlain and Trott), and Justice Neil Gorsuch repeatedly mentioned in his opinion that the Ninth Circuit’s decision was rendered over the dissenting views of at least 12 members of that court.

The second is United States v. Cooley, unanimously reversing a decision by Judge Marsha Berzon. A dissental by Judge Daniel Collins (joined by Bea, Bennett, and Bress) from rehearing en banc did, however, earn this particular meta-critique by Judge Berzon (joined by Hurwitz):

Even within the questionable genre of dissents from denial of rehearing en banc, see Martin v. City of Boise, 920 F.3d 584, 588 (9th Cir. 2019) (Berzon, J., concurring in denial of rehearing en banc), Judge Collins’s dissent to the denial of rehearing (“dissent”) is an outlier. It misrepresents the legal context of this case and wildly exaggerates the purported consequences of the panel opinion. . . .

This case involves an unusual factual scenario and a technical issue of Indian tribal authority. It certainly does not present a “question of exceptional importance” meriting en banc consideration. Fed. R. App. P. 35(a)(2). There is no conflict among the circuits regarding the question presented here, the opinion is not in conflict with a Supreme Court decision, and the practical implications are limited. . . .

But the Supreme Court’s decision to grant certiorari and then reverse suggests that it was “important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court.”

Less than a month after the Cooley decision, the Los Angeles Times ran a story about the “strain” on the Ninth Circuit from new judges, particularly Judge Collins, and specifically on his dissental in Cooley:

Among those who have caused the most consternation is Judge Daniel P. Collins, a former federal prosecutor and partner of a prestigious law firm.

Some judges say that, in the early months of his tenure, Collins has appeared oblivious to court tradition. He has sent memos at all times of the night in violation of a court rule and objected to other judges’ rulings in language that some colleagues found combative, they said.

Collins also moved quickly to challenge rulings by his new colleagues, calling for review of five decisions by three-judge panels, and some of the calls came before Collins even had been assigned to his first panel, judges said.

Active judges vote on the calls behind the scenes, and the public becomes aware of a failed effort only when dissents are later filed by the judges who favored reconsideration. Judges said it was unprecedented for a new jurist to try to overturn so many decisions in such a short period of time. The court has so far rejected most of Collins’ calls.

“Collins has definitely bulldozed his way around here already in a short time,” one 9th Circuit judge said. “Either he doesn’t care or doesn’t realize that he has offended half the court already.”
. . .

The behind-the-scenes tensions over Collins spilled into public last month in an order rejecting a call, presumably made by Collins, to reconsider a panel’s decision. The panel had upheld a lower court’s ruling in favor of suppressing evidence from a tribal officer’s search of a vehicle on a public highway. The highway ran through tribal land.

Collins, dissenting from the court’s refusal to reconsider, was joined by three judges, two Trump appointees and one appointed by President George W. Bush.

Collins called the panel’s decision “deeply flawed,” “plagued” by legal error and marked by “confused analysis.”

Two Democratic appointees whose ruling Collins wanted reversed wrote that, even in the genre of such dissents, Collins’ was an “outlier.”

“It misrepresents the legal context of this case and wildly exaggerates the purported consequences of the panel opinion,” wrote Judge Marsha S. Berzon, a Clinton appointee, and Judge Andrew D. Hurwitz, an Obama appointee.

“This case involves an unusual factual scenario and a technical issue of Indian tribal authority,” they said. “It certainly does not present a ‘question of exceptional importance’ meriting en banc consideration.”

While the Ninth Circuit may have “so far rejected most of Collins’ calls,” the Supreme Court is a different matter.