The U.S. Court of Appeals for the D.C. Circuit recently announced that it is ditching the so-called “Federal Clerk Hiring Plan.” Under that plan, judges agreed that they would not consider applications from law students for federal clerkship positions before a certain date in August. The plan–which is voluntary–was originally conceived as a way to keep judges from racing each other to snatch up the most qualified clerkship candidates. But now that the country’s most competitive circuit has stopped following it (as other circuits have done before it), the plan is likely doomed.
To some people, the potential death of the plan is a really big deal. That’s probably because of the nature of the job; according to my alma mater, clerkships “are considered one of the most prestigious jobs for law school graduates.” So, when the rules of the game change for these spots, people get agitated.
But at least one author is just taking things too far. And that would be Aaron Zelinsky (over at the Huffington Post), who has now declared that there is a full-blown “judicial clerkship crisis.” Zelinsky breathlessly warns us that the abandonment of the plan will lead to a world of less-sophisticated but better-connected clerks who happen into jobs in their first or second years in law school.
Zelinsky needs to chill.
First of all, he’s likely overemphasizing the importance of these jobs in the first place. Sure, clerkships are a nice laurel for the clerk and an important source of assistance for overworked federal judges, but they are hardly a crucial element of the judiciary. I simply don’t agree that “you’re getting worse performance from the judiciary because they aren’t as well staffed as they could be.” Any judge worth his salt should be up to the task of deciding cases even if he ends up with an only-kind-of-smart candidate rather than a super-exceptionally-smart candidate. And let’s be real: those kids with great grades from Harvard will still secure clerkships, regardless of the timing.
But second, and most importantly, Zelinsky mistakenly believes that the end of the world is nigh because abandonment of the plan will mean younger clerks. My sense is that it won’t mean clerks will be hired “at birth.” One reason why the plan has become somewhat silly is recent years stems from judges’ increasing focus on older candidates. Older candidates (in those words, those who have already graduated from law school) are not bound by the plan, so they can be interviewed earlier. And because of the increasing competition for clerkship spots, and because of the crappy economy, judges are interviewing and hiring more and more of these non-plan-bound applicants. I was actually one of those “graduate” clerks. Ironically, so was Zelinsky. The plan was actually hurting third-year law students, because we older clerks would apply for and secure all the good clerkship spots before those students were even permitted to apply. Abandoning the plan simply lets those students back into the game, but probably won’t change the judges’ new-found love of older, more-experienced clerks.
I’ve really been surprised at how much coverage the D.C. Circuit’s announcement has gotten, as this kind of thing is really “inside baseball” for lawyers. But if we’re going to talk about it, let’s at least try to keep the histrionics to a minimum.
Update: Great, now other law professors are picking up on Zelinsky’s argument.