Inside judicial chambers: how federal district court judges select and use their law clerks.

AuthorPeppers, Todd C.
  1. INTRODUCTION

    In recent decades, United States Supreme Court law clerks have not suffered from a lack of attention. From allegations that the Justices' law clerk hiring practices are riddled with gender and racial bias (1) to debates over the level of influence wielded by clerks, (2) legal scholars and journalists have remained intrigued with these "junior justices." Law clerks on the lower federal and state courts, however, have escaped similar scrutiny. This disinterest is particularly evident when we consider federal district court law clerks. With the exception of a recent flurry of articles debating when federal district court judges should begin the interviewing process, (3) the majority of articles by or about federal district court law clerks in the legal literature are the now-standard "tribute pieces," in which former law clerks extol the virtues of retired or deceased district court judges. (4) Filled with touching or humorous stories about chambers life as well as predictions for their judges' place in the pantheon of great jurists, these articles seldom discuss how the authors were selected or what job responsibilities they were assigned.

    On one hand it is not terribly surprising to discover that lower court clerks have been largely ignored by legal scholars, social scientists, and journalists. All are interested in the exercise of political power, and no other court in the land issues opinions of such sweeping scope and salience as the Supreme Court. Thus our attention is inexorably drawn to the Supreme Court law clerks who are involved in shaping judicial decisions in such critical areas as free speech, reproductive rights, and federalism--and some would suggest--wield their own independent influence over these decisions.

    We are not suggesting that Supreme Court law clerks are not worthy of study. In this Article, however, we argue the literature's narrow focus on the Supreme Court law clerk has led to a failure to examine the important role that federal district court law clerks play in the federal judiciary. As recent caseload statistics demonstrate, the federal district court is the court of last resort for most plaintiffs and defendants; in the twelve month period ending September 30, 2006, 259,541 civil cases (5) and 88,216 criminal cases (6) were filed with the United States District Courts. During that same period, only 66,618 appeals were filed with the United States Courts of Appeals, (7) 15,246 of which were criminal appeals. (8) In other words, less than twenty percent of cases filed in federal district court were appealed to the intermediate appellate courts. In 2005, the Supreme Court had only 9,608 cases on the docket and heard argument in ninety cases. (9) Ultimately, less than one percent of all cases originally filed in federal district court were reviewed by the Supreme Court.

    Admittedly, opinions issued by federal district court judges do not have the scope or impact of opinions written by Supreme Court Justices; lower court law clerks do not have the opportunity to craft legal principles which will govern a nation or resolve critical policy debates. Nevertheless, in helping process thousands of cases a year, an argument can be made that the hundreds of federal district court law clerks potentially have more day-to-day influence over individual litigants and cases than approximately three dozen Supreme Court law clerks.

    This Article does not propose to determine whether federal district court law clerks wield inappropriate levels of influence. Instead, our goal is to take the important first step of understanding what criteria are used to select federal district court law clerks and what job duties are assigned to those clerks--important descriptive data that has not been previously collected. If we find that federal district court law clerks are given the most mundane of responsibilities (such as cite checking, filing, and coffee making), then the issue of influence need not be reached. If our research demonstrates, however, that federal district court law clerks are routinely involved in all aspects of judicial decision making, then heretofore unexamined questions about law clerk influence at the federal district court will become relevant.

  2. LEGISLATIVE HISTORY

    While United States Supreme Court Justices were authorized to hire stenographic clerks in 1886 (10) and law clerks in 1919, (11) the lower federal courts did not receive similar institutional resources until decades later. Court of appeals judges were first authorized to hire law clerks in 1930 (12) and federal district court judges were first authorized to hire law clerks in 1936. (13) The bill authorizing law clerks for federal district court judges was introduced in 1935 by Senator Robert F. Wagner (D-NY) and by Representative Emmanuel Celler (D-NY) in the House of Representatives. (14) Their motivations in introducing this legislation have been lost in the passage of history. Unlike early proposals to provide the Supreme Court Justices with legal assistants, there was little debate surrounding the proposals to provide law clerks to lower federal court judges. (15) The bill was signed into law by President Franklin Delano Roosevelt on February 17, 1936. (16)

    Originally, law clerks were not allocated to every federal district court judge. The number of clerks was limited to a total of thirty-five for all federal circuits during the first fiscal year after the passage of the Act. (17) Additionally, the senior judge of the circuit court within whose jurisdiction the district court lay was required to approve the hiring of any law clerk. (18) The original statute limited the salary of a clerk to $2,750 annually, (19) but in 1940 the salary of law clerks was lowered to a maximum of $2,500 per year. (20) The 1941 appropriation statute further narrowed the hiring of law clerks by limiting each circuit to a total of three law clerks for all district court judges. (21) The same 1941 act also established that compensation for law clerks would be set by the Director of the Administrative Office of the U.S. Courts. (22)

    In 1948, an act was passed to codify Title 28 of the United States Code, entitled "Judicial Code and Judiciary." (23) Section 752 of that code allowed each district judge to appoint a law clerk if deemed necessary by the chief judge of the circuit. (24) While the circuit court still determined whether a district judge merited a law clerk, the number of clerks in each circuit was capped only by the number of district judges (25)--a much more generous allocation than the previous cap of three law clerks per federal circuit.

    Title 28, section 752 of the U.S. Code is still the controlling legal statute regarding law clerks for district judges, though the statute has seen some amendments. (26) In 1959, the Code was changed to read as follows: "District judges may appoint necessary law clerks and secretaries subject to any limitation on the aggregate salaries of such employees which may be imposed by law." (27) Thus, federal district court judges were no longer required to seek the permission of the chief judges of their circuits to hire clerks. In 1988, language was added to exempt law clerks from title 5, chapter 63, subchapter I of the U.S. Code, which dictates federal employee leave policies. (28)

    The current version of the statute states, in relevant part:

    District judges may appoint necessary law clerks and secretaries subject to any limitation on the aggregate salaries of such employees which may be imposed by law. A law clerk appointed under this section shall be exempt from the provisions of subchapter I of chapter 63 of title 5, unless specifically included by the appointing judge or by local rule of court. (29) It should be pointed out that the statute does not set a precise limit on the number and salary of district court clerks, stating that both are subject to the limits of "law." (30) Until 1983, this limit was established through annual appropriations, (31) which allowed Congress to effectively limit the number of law clerks. In 1983, the policy was altered to state that "law clerks to circuit and district judges shall be appointed in such number and at such rates of compensation as may be determined by the Judicial Conference of the United States." (32) The Judicial Conference continues to have the authority to dictate the number of clerks that may be hired by each judge as well as clerk salaries. Since 1991, the Judicial Conference has limited each district court judge to two law clerks and one secretary, although a judge may choose to hire a third clerk in lieu of a secretary. (33) Recent reforms passed by the Judicial Conference have further limited the district court judge's employment options, holding that in the future, district court judges can employ only one professional (or career) clerk. (34) According to the Administrative Office of the U.S. Courts, last year 2,075 full-time law clerks were employed by active and senior federal district court judges. (35)

  3. LITERATURE REVIEW

    As noted above, there is no shortage of books and articles on Supreme Court clerks. (36) Scholarship focusing on law clerks on the United States Courts of Appeals is more limited, however, (37) and materials regarding federal district court law clerks are generally--but not exclusively--limited to tribute pieces. (38)

    Across the clerkship literature, several different themes can be identified. One theme is the inherent value of the clerkship institution. Some authors feel that law clerks are a valuable tool to judges, or that they have become a necessity given the judiciary's continually increasing caseload. (39) Among those who view law clerks as a positive institutional development are judges who employ and rely on clerks, and the law clerks who found the clerkship to be an invaluable educational experience. Other authors, however, have challenged the clerkship institution on the ground that it...

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