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Everything You Must Know About Appellate Court Clerkships

published July 16, 2013

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Appellate courts (especially the U.S. and state supreme courts) and federal courts of appeal are considered the most prestigious places to clerk. Theoretically, these courts deal with fewer cut-and-dried legal issues (because these are resolved at the trial level) and instead decide more important questions of law.

The unfortunate tendency of far too many attorneys to waste their clients' money appealing every adverse decision, however, has contributed to the divergence of practice from this theory. Intermediate state appellate courts with mandatory jurisdiction of appeals are plagued with calendars swelled with both the sublime and the mundane. This overwhelming workload, among other factors, has led many state appellate courts to be perceived as having a high-volume, relatively low quality of output. This, in turn, has diminished the prestige associated with clerking for these courts.

By contrast, because of the limits with respect to federal question and diversity jurisdiction, the variety and complexity of federal court cases, and the position of the U.S. Courts of Appeals themselves as the penultimate tier in the federal judiciary (one step below our nation's highest court), federal appellate court clerkships are highly prized.

Consequently, they are especially difficult to obtain. Federal court of appeals judges usually have three law clerks.

Clerking for the U.S. Supreme Court is obviously the most highly prized clerkship position. Frequently, a clerkship for a Supreme Court justice follows a clerkship for a federal court of appeals judge. For example, a law clerk for a judge on the U.S. Court of Appeals for the Second Circuit may graduate upon completion of that clerkship to a clerkship for a justice of the U.S. Supreme Court.

Competition for state and federal Supreme Court and federal court of appeals clerkships is keen, with grades and academic accomplishments playing a major role. As a rule, only students in the top 10-15 percent of their law school classes need apply; even then, such grades alone will probably not suffice. However, a student lacking stellar marks might compensate with other accomplishments (such as law review editor) if the applicant is bright, hardworking, and a good interviewee with good references. Judges and justices from these courts are looking for (and can command) the cream of the crop with respect to both law schools and individual applicants.

Clerking for an appellate court, especially a court of last resort, provides the rare opportunity to apply one s own talents, legal abilities, and insights to resolving cases presenting difficult and highly important legal issues for precedent-setting disposition. Supreme Court cases are landmark cases, chosen for review by the highest court not just to do justice in the individual case, but to shape the law and provide guidance to litigants and other courts in complex and unsettled areas. They can, of course, do so only through resolution of the particular disputes litigants bring before them. In contrast to the trial and intermediate appellate court clerk's orientation of "What is the law I am bound to follow and how does it apply here?" the supreme court clerks orientation is often more philosophical and policy-oriented: "What should the law be?" The clerk and his judge must often wrestle with conflicting principles and countervailing policies (whose application will often have unclear or uncertain ramifications) to arrive at a decision.

There are some unique opportunities offered by the less-prestigious (but more easily obtained) state appellate court clerkships. In California especially, a variety of factors have severely increased the Supreme Court's workload and backlog such that it declines to decide many more cases than it previously did. The result of this Supreme Court logjam is that the courts of appeal have de facto assumed a greater role as law- and policymakers than ever before. While legal scholars have bemoaned this abdication of responsibility (especially acute in civil law matters), it presents both a pressing need and a worthwhile opportunity for bright students seeking court of appeal clerkships. Such positions are thus extremely important and should perhaps be given more consideration than they have been in the past by clerkship candidates.
For more detailed and accurate descriptions of judges and clerkships at the courts discussed previously, as well as thoughtful comment on clerkships as an Anglo-American jurisprudential institution, the authors recommend reading Law Clerks and the Judicial Process by University of California, Davis law professor John B. Oakley and former California Court of Appeal Judge Robert S. Thompson. Ultimately, your own preferences, not perceived prestige, should determine the type of court for which you would like to clerk.

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