Tuesday Talk*: The End of New Grad Clerkships

In the aftermath of the L’affaire Kozinski, a group of former law clerks took to the microphone to call for the judiciary to protect Harvard Law School’s finest from sexual harassment. Notably, the testimony was before a committee formed at the behest of the Chief Justice of the United States and comprised of judges. Recommendations followed, announced by no less adored a jurist than the benighted Merrick Garland.

And then came the zombie testimony of Olivia Warren, except she spoke not to the judiciary, but about the judiciary and the inadequacy of its newly created procedures for victims of judicial impropriety to feel entirely safe and comfortable. It was unclear from her complaint that the system didn’t, or wouldn’t, work to protect her from the ravages of Judge Stephen Reinhardt, but that the system wasn’t her safe space.

In the aftermath of deafening silence by the Reinhardt brotherhood, Michigan prawf Leah Litman took up arms against the crickets. After all, the failure of anyone else coming forward to provide additional testimony against Reinhardt could only mean one of two things: it didn’t happen (or at least not the way Warren testified it did) or the victims were so cowed, so frightened, that it proved how awful it was and how desperately the judiciary needs to be reinvented to protect the law clerks.

I think it is important to talk openly about clerkships — and specifically, about what people’s actual experiences were. We should not prime students to accept abusive, demeaning, belittling clerkships as a learning experience or worth it or part of becoming better lawyers.

I also think it’s important not to let 1-2 people be the only ones to say something publicly. I don’t think victims have to speak out, but there is a lot that bystanders & others can say + do to support victims, without minimizing or isolating their experiences.

And if you’re unwilling or unable to talk openly about your clerkship experience (or about warning signs that may have been overlooked, or minimized/glossed over for various reasons), …

… then there are lots of things to do — including actively and publicly supporting @ClerksForChange reforms, climate surveys, clerkship reforms, and organizing and pushing for these things too.

Whether or not the complaints about what happened are real, or the problem is isolated or pervasive, there is a valuable bit in Litman’s twitstream: clerkship reforms. No doubt her vision of reform has to do with the reinvention of the judiciary so as to conform it to the sensitivities of new law school graduates, so they can enjoy the benefits of their clerkship, from the mentoring by a judge to the camaraderie of the judge’s clerk family to the Supreme Court “feeder” potential to the Biglaw bonus paid to nail down ex-clerks.

But have the new grad law clerk fans lost the tune along the way?

Clerkship isn’t a right. The judicial branch of government does not exist for the benefit of Harvard and Yale law grads getting a first job. There is nothing in Article III of the Constitution mandating that federal judges hire kids out of law school. Maybe the time has come for reform, but is the most effective “reform” to end the risk of putting recent grads, whether steeped in debt or wearing shades to protect their starry eyes from their bright future, into the chambers of these unsafe judges?

Some judges have elected not to utilize the services of the babies, whether because the skills of career clerks are vastly superior or they just can’t tolerate the persistent whining. There could be other reasons as well, such as Article III judges, confirmed by the Senate, not being subject to congressional oversight should a newly-minted law grad find their mention of hysteria to be a traumatic sexist event.

Should the judiciary be reinvented to safeguard the law clerks rather than be judges and enjoy independence from regulatory oversight or the feelings of the vulnerable? If chambers can’t be made risk-free, then is the answer to eliminate the problem rather than make the judiciary subservient to law clerks?

*Tuesday Talk rules apply.

31 thoughts on “Tuesday Talk*: The End of New Grad Clerkships

  1. Joihn Barleycorn

    Not original thoughts:

    “…eliminate the problem”

    “judiciary subservient”

    …and, believe it or not “utilize the services of the babies”

    BTW, is someone, in these back pages here, perhaps a member of the something and something another called the Federal Judges Association?

    P.S. Could just be me, but it seems some internal “guild” face slapping is in order all around within all ranks of the “guild” before these fucking lawyers fuck it all up real good this time…

    Such an exclusive guaranteed gig about to be wasted in a few strokes….tsk, tsk, tsk….

    LOL just think about the history too…. or Monty Python skits, or the soon to be released SHG Rants on Tape MP3’s to make it all go down smooth. (available on cassettes if you allow us to tap your land line and on 8track if you give us your grandchildren’s DNA.)

    1. John Barleycorn

      Oh Shit! I forgot to mention that one of the new SJ tab selection sections will be:

      It’s Tueeeeeesday Morning!!!

      Which will be a below the fold back page section within a back page section, under the Tuesday Talk Banner that will never go away…..

  2. Richard Kopf

    SHG,

    I have seen the clerkship experience from both sides-as a clerk to a federal appellate judge* and as a federal district judge. If I had one change to make–and not solely or even primarily to protect the tender hearted youngsters–is to reinstate the ability of judges to hire career clerks.

    Some years ago, as a cost cutting measure, federal judge were barred from having more than one career clerk. Do you know one highly paid professional who is obligated to have the least experienced to advise him or her? We thus began to step over dollars of experience to chase pennies of inexperience both in terms of legal acumen and emotional maturity.

    Because of a quirk, I supervise four law clerks. Two in chambers and two on the pro se docket. All four are grownups with tons of experience doing other things before they began work with me. Their ages range from the early forties to 67. Three are women and one is a man. Again, as a quirk, they are either essentially career clerks or lawyers, serving the court as whole, without term limits. But, and this cannot be stressed too much, I am the very rare exception who has the wise counsel of mature lawyers who have experienced the ups and downs of life and are are nonplussed when I scream “fuck” when my computer goes wacko.

    All the best.

    RGK

    *I served Judge Ross for just short of two years. For the first year, I was worthless. About the time I left to take a job with his brother-in-law was about the time I became slightly helpful to the judge.

    1. SHG Post author

      I considered writing about the relative worthlessness of baby law clerks, their incompetence, inexperience and general annoyance of feeling empowered to voice their valuable opinions. But then, I thought, what are the chances any baby lawyer or former clerk would realize that judges were doing them a mitzvah by tolerating their presence?

  3. Guitardave

    “We should not prime students to accept abusive, demeaning, belittling clerkship’s as a learning experience or worth it or part of becoming better lawyers.”

    Who had the idea of running the gauntlet to make ones self tougher? Who would ever think that a major factor in law craft is people, their personality flaws, their mistakes, their interpretations, etc.? And just WHO had the silly idea that schooling was to prepare you for the real world, replete with real people?
    Unlike this person, it was someone who thought “better lawyers” was a good idea.

    Dear client,
    I know i accepted your case, but i can’t make it to the preliminary hearing because the judge assigned the case scares me and is mean. Sorry about that.
    Regretfully, Your future lawyer.
    PS: I think this song came from somewhere near Mud Lick.

  4. PseudonymousKid

    Pops,

    You’re being hyperbolic again. The judiciary has a lot of jobs to do and slop to move. If new grads don’t cut it in whatever way, then hiring more experienced career clerks seems like part of an answer. But there’s no amount of regulatory oversight that will knock judges, especially the article iii variety, from their high pedestals. I know even the phrase “regulatory oversight” triggers you, but it will all be okay. Having a mechanism to root out the worst isn’t the end of the world even if a judge has to say, “no, that didn’t happen” from time to time.

    Judges can judge other judges’ judging and not judging like judges. Thanks be for TT.

    Lovingly,
    PK

      1. PseudonymousKid

        If the question is as you posed it, then the solution is to trade up from the new grad clerks to career clerks. Who would want a tyrannical regulatory oversight committee to seriously threaten the independence of the judiciary? New grads aren’t entitled to anything except the degree they actually earned. Boo hoo, they’ll have to find other ways to pad the resume. Problem eliminated until the next one crops up. Sic semper tyrannis.

        I just can’t get riled up at the thought of regulatory oversight like you can. At least not without seeing more. Maybe my imagination sucks along with my comments.

        1. SHG Post author

          You want your judge to have a govt regulator’s hand up his butt as you’re fighting the govt? This stuff isn’t that hard to grasp, PK.

  5. John Bartleycorn

    FYI:

    Dear SJ back page readers:

    Holders of the SJ funkadelia funkadelic::::::::

    The McClatchy Company just declared bankruptcy (bet you didn’t read about that in your daily travels) and, Buffet and Company – of Berkshire Glory; Bitches Buttfucking those that need to be buttfucked- just sold off all their print.

    Over all combined, well in excess of 100 proprieties of THE PRINT.

    So if any of you back page readers want a J-O-b make sure to let your current host know that he is floating towards and past shaky ground, especially considering his devotion and references to that newspaper he reads everyday.

    The “news” dollars are in the streets for the taking right now. Amongst what was once a diffused multiple 10’s of billions of dollar industry.

    (Can not say here exactly as SJ and I are negotiating and SHG is not only an “arrogant bitch” he has no idea even while deciding if he has ovaries or not)

    But very, very soon even SJ will have nothing to reference less, an number of “sources” that you can keep track of without using your toes or both hands.

    Hold on!!! He depends on those sources to occupy his brain.

    It will be Fun, fun, fun. And when SHG sells the “SJ Show” SJ is going on the road and there will be j-o-b-s.

    Get your Zine on or Die!!!!

    THE NEWS IS IN THE STREETS

    1. Guitardave

      The SJ roadshow….get your advance tickets NOW!
      I’m in. It’s about time this DJ thing starts paying.
      But what about accommodations? It better be 5 star hotels cause I ain’t sleeping on no stinky old hippie school bus with Captain Bee-fart and Zappa cranking all nite, JB.

      1. SHG Post author

        Maybe we’ll open Skinkfest to the SJ universe next time around. I wonder what Skink thinks of that idea? Got room for the Habeas Harley?

        1. Skink

          The Swamp, even as lunicidal as it is, has limitations. Then again, “draining the Swamp” would require a different kind of bumper sticker.

  6. B. McLeod

    I don’t think Judge Garland is necessarily “benighted,” but I do think he is not getting the “confidentiality” issue. As illustrated by Olivia Warren. The concern is not whether the clerk would be breaching a duty to maintain confidentiality as to matters in chambers. Rather, it is whether they can have an ironclad guaranty of anonymity when taking their potshots at the judges.

  7. Miles

    It doesn’t appear that there is any “answer” that will satisfy the feelings of the young and unduly sensitive short of putting judges at their mercy. I, for one, am not in favor of a judicial branch subject to the tyranny of the most woke or fragile law clerk.

    Bye, clerks. You didn’t contribute much when you were there, and you won’t be missed when you’re gone. Sorry if this impairs your future earnings potential, but you’ll manage like the other law grads who aren’t quite so special.

  8. MonitorsMost

    Well, the jury questions coming out of the Weinstein trial aren’t looking too good for him. When one of the questions is why can’t they they convict in regard to a witnesses account of an event that occurred outside the statute of limitations, it’s not a good day.

    1. SHG Post author

      Cool way you connected Weinstein to this clerkship issue. No, the jury note does not bode well, but it ain’t over ’til it’s over.

      1. B. McLeod

        Jurors being what they are, this may mean they don’t like the counts that are charged, and so would like to be able to instead convict him on the misconduct alleged to show “pattern.”

        1. SHG Post author

          That’s the point of Molinex evidence, to convict not for the crime charged, but for propensity. The jury just isn’t supposed to say it aloud.

      2. MonitorsMost

        It is possible that I misinterpreted the Tuesday Talk rules.

        Judges shouldn’t be berating law clerks based on their gender or attractiveness, especially since very few federal judges have room to talk on the later. Clerks should be berated for being legal toddlers and putting out poor work product. Learning how to deal with the people who get your goat is an important part of being an attorney. No better way to get practice than to be at the hands of someone as unassailable as federal judge with lifelong tenure.

        1. SHG Post author

          You weren’t wrong about the rules, but it’s always nice if people pretend to kinda care about the post before letting me know they really don’t give a shit.

          As for your law clerks piece, you’ve missed the point by your oversimplification. Of course judges should berate clerks based on attractiveness. Judges also should put their hands on women’s breasts or their mouths on men’s penii. If we go inch by inch, we could probably come up with a long list of things judges shouldn’t do. Then we can do the sexually harassed clerk who anon grieves because the judge said “fuck,” instituting a mandatory investigation and removal of the judge from the bench during its pendency, and the similarly long list of other things that could give rise to grievances, investigations, disruption of the bench and cases, and sanctions, not to mention crazed fury on #MeToo twitter.

          Maybe you should stick with off-topic.

  9. Rengit

    Perhaps, in the new trauma-informed judiciary, law school clerks will have life tenure upon graduation and the judges will serve at their pleasure. That should rectify existing power imbalances.

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