The Professor-Clerk Problem

Professors kiss up to Supreme Court justices to land clerkships for their students. It's a bad idea. Here's why.

Being selected to serve as a law clerk to a judge is among the most prestigious and career-enhancing honors a graduating law student can receive. The higher the court, the greater the prestige, with the Supreme Court topping the list. Naturally, these elite clerkships are extraordinarily competitive, not only among law students but also among law schools. One measure of a school's status is the number of Supreme Court clerkships its students receive.


Every Supreme Court justice and lower court judge has his or her own mechanism for selecting clerks. But nearly all rely to some degree on the recommendations of law professors, some of whom had previously clerked for that judge. Professors who are known to be conduits to elite clerkships are sought out by ambitious students anxious to impress them and win a recommendation. These professors enhance their own status by having an in with judges whose clerkships are highly prized.

I know this game well, because I myself played it both as a student and as a professor. I wanted to clerk on the Supreme Court, so I deliberately took courses from professors who recommended clerks to the justices in whom I was particularly interested. I ended up getting a clerkship, but with a newly appointed justice (Arthur Goldberg) who did not then have a set of favored professors on whom he relied. Eventually, I became one of these favored professors who helped to select my clerk successors.

After several years of helping to pick law clerks for several Supreme Court justices and other judges, I began to feel uncomfortable. I sensed conflicts between my various roles as professor, public commentator, appellate litigator, and selector of law clerks. I sensed that I was holding back public criticism of the judges to whom I was recommending clerks. I noticed a similar caution among some other professors who were active in the clerkship process. They valued the relationship they had with "their" justices and judges and did not want to endanger it by publicly criticizing the goose that laid these golden clerkships. Several students told me they noticed the problem, too. In the classroom, their professors felt entirely free to say what they really thought of these judges, because classroom comments rarely get back to the judges. But their criticism outside the classroom-especially in academic and popular writing-tended to be muted.

This phenomenon was apparent in the academic reaction to Bush v. Gore. Several prominent law professors who recommend law clerks to the majority justices, while trashing the justices in private, were careful to limit their public disapproval. I spoke to one of them off the record, and he acknowledged the conflict he felt between his role as commentator and his role as a recommender of law clerks.

I have decided to resolve this conflict in favor of publicly criticizing judges. I've decided that there are too few knowledgeable insiders prepared to risk alienating judges by telling the truth, the whole truth, and nothing but the truth about judges. There are more than enough lawyers prepared to curry favor with them. It is more important to have informed critics of the judiciary than to have additional professors willing to recommend law clerks.

My students (and clients) are aware of the choice I've made, and I've noticed a difference. The number of ambitious students who seek me out to work as research assistants and to write papers for me has dwindled some since I stopped playing the clerkship game. That's fine with me. I'm comfortable with my choice.
 

• See Law Schools That Send the Most Attorneys to United States Supreme Court Clerkships for more information about getting a clerkship in the US Supreme Court.

I hope more professors will honestly and publicly criticize Supreme Court justices and other judges, even if that means quitting the clerkship game.