The federal judicial law clerk hiring problem and the modest March 1 solution.

• Author: Becker, Edward R.

1. Introduction

   In September 1993 the Judicial Conference of the United States unanimously adopted the following resolution.

   The Judicial Conference recognizes as the Benchmark Starting Date for clerkship interviews March 1 of the year preceding the year in which the clerkship begins.(1)

   As submitted to the Judicial Conference, the resolution contained the following explanatory note:

   The Benchmark Starting Date is not meant to be binding. The Conference expects that judges will make a good faith effort not to interview candidates before that date, but special circumstances might sometimes call for an earlier interview. This Benchmark Starting Date will be made known to the law schools, with the suggestion that faculties be urged not to transmit letters of recommendation until approximately February 1, which is about the time when third semester grades are available. The suggestion will also be made that law schools advise students that they are not obliged to accept the first offer tendered (there being widespread confusion on this point).(2)

   This modest "March 1 Solution" followed years of failed attempts to deal with a process that had seen federal judges hiring law clerks as early as October of their second year of law school. Hiring clerks early on in their law school careers overemphasized first-year grades, caused unnecessary disruption of classes, considerably increased the cost of travel for interviews, vastly raised the anxiety level for the students, and impaired the reputation of the federal judiciary.

   The competition among judges to hire prime law clerks tended to push hiring dates earlier and earlier. By 1992, law students scrambled as early as September of their third semester to apply to judges rumored to be hiring. In the fall of 1993, in an attempt to arrest the advancing trend, the Judicial Conference adopted the March 1 Solution. After only one year in operation, it has been strongly endorsed by federal judges, law students, professors, and administrators. Although the Solution may not have been ideal in theory, in practice it was a success.

   In order to understand why both judges and law schools should continue to support the March 1 Solution, we sketch the history of prior attempts to solve the law clerk hiring problem, all of which failed to achieve sufficient judicial support to provide lasting reform. We then examine why other approaches to the problem are inadequate and offer our recommendations for improving on the March 1 Solution.

2. A Few Pages of History(3)

   Before the mid-1970's, the prevailing practice of federal judges was to select law clerks during the fall of their third year of law school. Gradually, the judges' hiring date crept earlier and earlier until most selections were made in the spring of the students, second year. Since the late 1970's, federal judges have made six separate attempts to reform this process.(4)

   In 1978, law school deans succeeded in persuading the Association of American Law Schools to issue recommended guidelines for hiring, but most federal judges did not abide by them. In March 1983, the Judicial Conference requested that judges not consider applications before September 15 of the students' third year of law school; by the 1984 season, however, early hiring was rampant. Following a survey of judges, reactions to the September 15 benchmark, the Judicial Conference abandoned the experiment.

   In 1986, Stephen G. Breyer, then a circuit judge on the U.S. Court of Appeals for the First Circuit, attempted to build a consensus for the 1986 season by urging federal appellate judges not to consider student applications before April 1.(5) A large number of judges responded favorably, both in writing and in actual practice. In 1987 and especially in 1988, however, the April 1 date was largely ignored, many of the judges interviewed and hired in March, and a few in February, of the students' second year.

   During the 1989 clerkship season, then Chief Judge Breyer and Judge Edward R. Becker of the U.S. Court of Appeals for the Third Circuit attempted to achieve a consensus among the U.S. circuit judges on a March 1 interview date.(6) They polled all the circuit judges regarding their willingness to adhere to a March 1 interview date if eighty-five percent of all circuit judges agreed. When only some seventy-five percent of the circuit judges responded positively, Judge Becker notified the judges on January 23, 1989, that "you and your colleagues should feel no constraints about interviewing and selecting law clerks at any time during the forthcoming |season.'"(7)

   Soon after Judge Becker's letter, a highly critical and ultimately quite influential article appeared in The New York Times. The author stated:

   The once-decorous process by which Federal judges select their law clerks has degenerated into a free-for-all in which some of the nation's most eminent judges scramble for the top law school students.

   ....

   In their eagerness to capture the best clerks, the judges have steadily pushed up the hiring process, instead of looking for students in their third year of law school as custom once required, judges surreptitiously began recruiting second-year students in the fall and offered some jobs as early as February, disrupting studies and making decisions on the basis of fewer grades and flimsier evidence.

   ....

   "It was positively surreal, the most ludicrous thing I've ever been through," said one Stanford student who recently endured the process. "Here are these brilliant, respected people - they're Federal judges, for God's sake - and they're behaving like 6-year-olds."(8)

   Making reference to the words that start the annual Indianapolis Speedway race, the article's author concluded that, instead of notifying the judges of the absence of constraints, Judge Becker might as well have told them, "Ladies and Gentlemen, start your engines."(9)

   Stung by the article and by other criticism, Judges Becker and Breyer, joined by Chief Judges James Oakes (Second Circuit) and Patricia Wald (D.C. Circuit), initiated a campaign that yielded an agreement for the 1990 season among more than two-thirds of the U.S. circuit judges. Under the 1990 plan, while clerkship interviews could take place at any time, judges would not make offers until May 1 at 12:00 noon Eastern Daylight Time.(10) The implementation of this more ambitious proposal was also a failure.

   There were a few reports of students getting phone calls from judges in the weeks before May 1 asking the students questions of the sort, "If I were to give you an offer, would you accept?" Some judges called applicants promptly at noon only to find that they had accepted another offer a few minutes earlier from a judge whose "watch was fast." Moreover, because the judges had not reached an agreement on how long they were to keep the offers open, a frenzy of offers and acceptances ensued within minutes of the noon hour. As a result, many clerkship applicants did not get their preferred clerkship, and judges who allowed students time to consider an offer and comparison shop discovered that, if the student advised the judge an hour or two later that he or she had accepted another clerkship, the judge's next five or more choices had already committed themselves to someone else. In short, as a follow-up survey among judges showed, nobody ended up happy.(11)

   After the 1990 clerkship season, Judge Becker and Chief Judges Breyer, Oakes, and Wald abandoned their reform efforts. Predictably, 1991 was as frenetic as 1989 had been. The next year was even worse. In the 1992 clerkship season, virtually all judges on the D.C. Circuit had finished their hiring by February. Many judges elsewhere did likewise. Some judges made offers in December 1991 to students who were not even halfway through law school.

   The downward spiral accelerated the next year when Professor Kent Syverud, clerkship advisor at the University of Michigan Law School, wrote to all federal judges that the Michigan students, so as not to be beaten to the door by the competition, would be applying for clerkships in September of their second year of law school.(12) The 1993 law clerk hiring season thus began in earnest in the early fall of 1992, the earliest date ever. A joke began to circulate about competitive judges casing kindergartens for bright young prospects. When a statement to this effect attributed to Judge Becker appeared in the legal press,(13) one of his former law clerks collaborated with a friend on a mock application.

   I know it's early, but my mommy was reading the Legal Times and told me that you know of judges who are accepting resumes from people who had good grades in kindergarten. Although my kindergarten, like Yale, didn't really have grades, I am now a first grader and did super well last year.... I can count all the way up to 37 without making any mistakes at all, and then I can go usually all the way up to 71 with just a couple of boo-boos. I promise to write opinions that don't have more pages than I can count.

   EDUCATION

   Kindergarten Grades: Out of 6 projects, 4 Gold Stars, 1 Silver Star, and a Smiley Face. Class Rank: Second Tallest Received special school arts-and-crafts award for best papier-mache likeness of Barney the Purple Dinosaur. Nominated for Inclusion in Who's Who Among American Kindergarten Students.

   PUBLICATIONS

   Dick, Jane, and Gender: Deconstructing The "Text" of Childhood, 24 Fishman Kindergarten Q. 288 (forthcoming 1994).(14)

   The scramble caused by Michigan's announcement of a September start date convinced Chief Judge Breyer and Judge Becker that the time had come to make yet another effort to achieve a semblance of order and decorum. They began by sending a questionnaire to all U.S. circuit judges inquiring whether they would agree to a "benchmark" starting date for law clerk interviews - even if some judges did not honor it.(15)

3. Setting the March 1 Benchmark

   After responses to a questionnaire showed overwhelming support...