Closing the legislative experience gap: how a legislative law clerk program will benefit the legal profession and Congress.

AuthorRudesill, Dakota S.

This fall, like every fall, is a time of keen competition among the nation's best third-year law students and recent graduates, as they pursue prestigious legal apprenticeships as federal court law clerks, Executive Branch "Honors" program attorneys, law firm junior associates, and fellows and new faculty at law schools. This year's round of musical chairs is unusually intense in the wake of the Great Recession's elimination of countless cushy seats at law firms, great and small. (1)

In this gloomy hiring season there is at least one increasingly bright spark, one that may light the way to a new kind of apprenticeship experience for future participants in the highly competitive national clerkship market. (2) Pending in the U.S. Senate is House Bill (3) 151, (4) and its Senate companion, Senate Bill 27, (5) that would for the first time create a law clerk program in the U.S. Congress analogous to other legal apprenticeship opportunities. Prospects for the program are encouraging, thanks to the House's overwhelming 381-42 vote in March 2009. (6)

As I explain, however, this legislation may die in the Senate as it did last session, unless the legal profession and Congress come to a better and more broadly held understanding of a congressional clerkship program's potential benefits.

One is that over time it would begin to correct the profound comparative lack of legislative work experience among the legal profession's leaders that my empirical research has identified. Here, I present new data demonstrating that the incidence of legislative work experience among the profession's top 500 lawyers, as ranked by Lawdragon.com, trails badly behind experience working for courts, government executive bodies, in private practice, and in academe. These empirical findings supplement my study in this publication in 2008, which focused on federal appellate jurists and law professors at Top 20 law schools. (7)

I argue that closing the legislative experience gap ultimately will benefit the profession and Congress by helping both of these key legal players better understand--and take more seriously--an under-appreciated reality: legislative work is legal work. I conclude by refuting objections, and encouraging lawyers to engage with Congress in support of the bill.

I.

Congress is the Constitution's first branch, with enumerated, sweeping powers to act as the primary author of federal law. (8) In accord with the foundational principle of self-government, our nation's most potentially powerful legal institution is also the most accountable to the people. Yet of the three branches of the federal government, Congress is by far the least influential on the constitutional perspective of the nation's most influential lawyers. That is because it is the least accessible to them in their formative first years: Congress lacks a formal legal apprenticeship program similar to those of the judiciary and executive agencies. Congress is also less influential than two other major players in the apprenticeship of young lawyers--the private sector and legal academe--that are still less democratically accountable.

A year ago in this publication's online supplement I made the case for a congressional clerkship program as a first step toward a corrective. (9) Legislative work experience is not in strong demand by our best young lawyers, not because it is unimportant, but--I argued--because there is comparatively little supply.

New lawyers have much to gain in practical terms from firsthand legislative work experience. The U.S. Code is central to federal legal practice and is produced via an extremely complex process that--like trying a case or writing an appellate brief--is best learned by doing. Although more law schools are now requiring coursework in statutory interpretation and starting legislation clinics, virtually all prioritize instruction in judge-made law and clinical experiences involving judicial process. (10) Law firms overwhelmingly focus on litigation rather than legislation, and the dry contract-like construction of legislation means that few new lawyers study statutes on their own time. (11)

The immediate benefits to Congress of a clerkship program could be considerable, as well. Legislative assistants, counsel, and committee professional staff members, particularly for the most active Members and committees, are generally over-tasked--often with policy, political, and press-related work. Basic legislative responsibilities--statutory research, analysis, and drafting--too often get too little focused attention, (12) reflected in scrivener's errors and ambiguity in Congress's legal product. (13) Law clerks would not be just extra staffers, but rather "keepers of the U.S. Code," focused on the basic legal work of the institution.

Over time, a congressional clerkship program would begin to redress the profound relative dearth of legislative work experience among the legal profession's leaders, who are extremely influential in shaping public and policymaker understanding of the law. As representative samples of the nation's most influential lawyers, in my prior study I chose for analysis federal appellate jurists (U.S. Supreme Court justices and circuit court judges) and professors at the Top 20 law schools as ranked by U.S. News & World Report. (14) I read their web-posted biographies and tabulated prior experience in five types of legal institutions: private practice, academe, legislatures, executive agencies, and judiciaries.

The legislative experience deficit is dramatic. While strong majorities of federal appellate jurists have prior private practice, executive, and judicial experience, and nearly half have academic experience, the biographies show that only 14 percent have ever worked for a legislature--any legislature--and seen from the inside how the statutes they interpret are made. (15) Remarkably, this low rate of firsthand legislative experience among jurists is still nearly three times what it is among Top 20 law professors. On the most prestigious law faculties, only 5percent of professors have worked for a legislative institution--local, state, federal, or international. At Top 20 schools, executive branch experience is nearly six times as common, judicial experience is nine times as common, private practice experience is ten times as common, and other academic experience is fifteen times as common as legislative experience. At the time of my study one Top 20 law school, with a professorial faculty of 49 and a storied history training leaders in the law, had not a single full-time professor who had worked for a legislative body and therefore could teach about legislating from personal knowledge.

When my findings were published, prospects were good for Congress to create a clerkship program. In 2005, Stanford Law Dean Larry Kramer had organized a supportive letter to Congress signed by the deans of 145 law schools. (16) After several years refining the legislation, (17) in late 2008 the House passed by voice vote House Bill 6475, a bill to create a pilot program with six clerks in each chamber. (18) Under the bill, clerks would be selected competitively for year-long terms, and once placed focus on legislative legal work in committee or Member offices.

According to Capitol Hill contacts, (19) the Senate Majority and Minority leaders polled their caucuses and found no opposition to passing the bill by unanimous consent. (20) That is, with one exception. Reportedly, a single Senator, a Republican, objected to the unanimous consent request to pass House Bill 6475--along with 100 or so other bills that also fell afoul of the Senator's self-created budget rule that legislation that authorizes funding subject to a later appropriations bill must be offset as if money is actually being spent. (21) What really mattered was the Senator's implicit threat to mount a filibuster. (22) But that required broader support for House Bill 6475 than existed, and more time on the Senate calendar than was available. The bill died when the Senate adjourned.

Two factors make the outlook better this year for the bill, reintroduced by Reps. Zoe Lofgren (D-CA) and Dan Lungren (R-CA) as House Bill 151 (23) and by Sen. Charles Schumer (D-NY) and then-Sen. Hillary Rodham Clinton (D-NY) as Senate Bill 27. (24) One is the 381-42 vote to pass House Bill 151 in the House on March 31, 2009. (25) Such an overwhelming bi-partisan vote carries weight in the Senate. The second development is that the Senate Democratic Caucus has eight more seats. (26) That potentially matters not because the congressional clerkship initiative is partisan--it is bi-partisan--but because the bill's lead sponsor in the Senate happens to be a Democrat. A Democratic majority is likely to be more willing to put its weight behind defeating a filibuster by a Republican than would the Republican leadership.

Nevertheless, the reality is that House Bill 151 could die in the Senate this year, just as did House Bill 6475 in late 2008. With the Senate Democratic Caucus having 59 votes, now one shy of the 60 votes needed to break a filibuster (thanks to the January 19, 2010 special election in Massachusetts to fill the seat of the late Sen. Ted Kennedy, a cosponsor of Senate Bill 27), at least one Republican supporter would be necessary to defeat a filibuster by another Republican. More importantly in the case of a bi-partisan but minor bill such as House Bill 151 / Senate Bill 27, it takes a week to break a filibuster--and the Senate will not spend that kind of time on one bill unless sufficient Senators press for it. (27) Broadening Senate support requires persistence and a strong case, the latter of which is greatly helped by new objective...

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