It is a truth universally acknowledged, that a law student in possession of a desire to become a law professor, must be in want of a judicial ...
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60 Vol. 105 No. 1
It is a truth
universally
acknowledged,
that a law student
in possession of
a desire to become
a law professor,
must be in want of
a judicial clerkship. †
Judicature 61
Academic Feeder Judges
Are clerkships the key to academia?
by Howard M. Wasserman*
T he legal community is
familiar with “feeder
judges” — federal lower-
court (primarily court of
appeals) judges who have
a substantial number of law clerks go
on to clerk for justices on the Supreme
law schools, many of
whom gravitate towards
law teaching. Clerkships
launch former clerks
into other legal positions
(including government,
private practice, and
Given the
intimate (if
not essential)
connection
between
duce” law professors
from the ranks of their
former clerks.
Methodology
This study identifies law
faculty as of fall 2019
Court of the United States.1 During further clerkships) and clerkships and with judicial clerkships
the Burger Court (1969–1986), having short-term pre-tenure legal academia, in their background —
at least one prior clerkship became
a de facto prerequisite to a Supreme
teaching positions (such
as fellowships and
the time is what I call “academic
former clerks.” It relies
Court clerkship. This created a net- Visiting Assistant Prof- right to identify on self-reporting — fac-
work effect in which certain appellate essorships5) that provide “academic ulty presentation to
judges became known for placing
clerks with the justices, increasing
further experience and
credentials for a perma-
feeder judges” the world about past
clerkships through bio-
the number of law students applying nent teaching job. And for whom graphies and publicly
to clerk for those feeder judges with clerkships accord a mark significant available curricula vitae
the hope of securing a subsequent
clerkship on the High Court.2 During
of prestige that appeals
to current faculty mem-
numbers of on their law school
websites. This method-
the Rehnquist Court (1986–2004), ten bers — who clerked current U.S. ology risks missing
lower-court judges placed more than early in their careers law professors some academic former
20 clerks, with a second-tier of 16 — in identifying prom- clerked at the clerks who choose not
beginning of
judges placing eight or more.3 From ising new colleagues, to include the clerk-
2004 (one year prior to the start of the especially from among ship experience in their
Roberts Court) through 2018, 11 low- candidates who clerked their careers. online information or
er-court judges produced 20 or more for “their” judges. who do not post their
Supreme Court clerks and another 20 Given the intimate CVs. But I expect that
lower-court judges produced eight or (if not essential) connection between most professors provide this informa-
more Supreme Court clerks.4 clerkships and legal academia, the time tion in at least one of those spaces.
While not as formally necessary to a is right to identify “academic feeder The analysis is limited to full-
law-teaching position, a judicial clerk- judges” — the judges for whom sig- time permanent teaching, research,
ship is one step in the common path to nificant numbers of current U.S. law and clinical faculty at American Bar
the legal academy. Clerkships appeal professors clerked at the beginning of Association (ABA)-accredited, Asso-
to high-achieving law students at top their careers and the judges who “pro- ciation of American Law Schools u
62 Vol. 105 No. 1
FIGURE 1: COURTS FIGURE 2: APPOINTING PRESIDENT
25 30
20 25
20
15
15
10 10
5
5
0
.
0
)
)
)
)
(26)
(21)
)
(6)
(9)
(21)
N (1
Y (3
D (1
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R (5
).
SH
ON
4)
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4)
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T ER
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GAN
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. (14
F OR
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IR. (
T. (1
IR. (
BU
NI X
CIR
CIR
CIR
. CIR
CIR
CIR
CIR
NH O
T RU
C AR
K EN
C L IN
CIR
. CIR
CIR
RE A
JOH
HC
.W.
HC
T. C
5TH
8TH
6TH
4TH
7TH
3D
1ST
9TH
G .H
EI SE
10T
2D
11T
DIS
D.C
(AALS)-member or AALS-fee-paying rent status (active, retired,8 senior,9 6. Fifty-one federal lower-court
law schools as of the time of the resigned,10 or deceased); primary career judges, focusing on academic for-
study. It includes tenured, untenured/ prior to appointment to the federal mer clerks who did not also clerk
tenure-track, and untenured/non- bench (academy, government, private for SCOTUS.
tenure-track contract faculty and practice, or state bench); number of
lecturers. It does not include adjuncts academic former clerks; per-year aver- The link between judicial clerkship
and other part-time faculty who are age (academic former clerks divided and academic job is less direct than
not primarily academics. It also does by years on the bench); and rankings the link between lower-court clerk-
not include short-term visitors and of the schools at which former clerks ship and SCOTUS clerkship. A SCOTUS
fellows, many of whom are recent law teach.11 All biographical and histori- clerk obtains her position on the
clerks occupying temporary entry- cal information about judges is drawn strength of being a clerk for a feeder
level positions as a stepping-stone to from the Federal Judicial Center’s judge and that feeder judge’s recom-
an academic career. And it does not online Biographical Directory of Article mendation, typically a direct line from
include former law clerks teaching III Federal Judges, 1789-Present.12 From lower-court chambers to SCOTUS
at non-U.S. law schools or working in this group, I created the following stud- chambers within one or two years of
non-law academic disciplines. ies of former clerks:13 the first clerkship. Being a “Judge X
According to the AALS, there were Clerk” or “Justice Y Clerk” helps secure
9,329 full-time law faculty in fall 1. One-hundred-two federal lower- an academic position, especially with
2019.6 Online biographies and posted court judges, most on courts of a strong recommendation from the
CVs identified 3,641 full-time faculty appeals, with eight or more aca- jurist. But that position comes several
with judicial clerking experience, rep- demic former clerks. years later, the clerkship and recom-
resenting more than 35 percent of 2. Fifty-one federal district judges mendation forming one piece of the
full-time faculty. Approximately 200 with three or more academic hiring faculty’s prediction of whether
faculty members identified the courts former clerks. an entry-level faculty candidate is
on which they clerked but not the 3. Fifty-two federal lower-court likely to be a productive scholar and
judges. This left more than 3,400 cur- judges appointed since 1995 with effective teacher.
rent full-time faculty who clerked for three or more academic former The numbers thus tell a correlative
at least one identified judge. clerks. rather than causal story — who pro-
From these 3,400 faculty members, 4. Eighteen state-court judges with fessors happen to have clerked for. In
I identified 325 federal lower-court two or more academic former labeling these judges academic “feed-
judges with at least three former clerks clerks. ers,” I adopt the familiar parlance as an
in teaching. For the judges in that group, 5. Current and former justices of analogy. While I occasionally describe
I gathered data on court, appointing the Supreme Court of the United judges as “producing” or “placing” aca-
president, and years of service;7 cur- States. demics, it is shorthand to connect the
Judicature 63
FIGURE 3: PRIOR POSITION leaving less room for distinctions. Figure 1. Courts. The Ninth Circuit’s
Table 1 (see appendix online at judica- lead is unsurprising, as it is the largest
50 ture.duke.edu) presents the top 102 regional circuit, with 29 approved active
40 lower-court judges. judgeships — more judges means more
The clear “winner” is Guido Calabresi, clerks, which means more future aca-
30
senior judge on the Second Circuit, demics from among those clerks. The
20
appointed by President Bill Clinton in D.C. Circuit is regarded as the “junior
10 1994 following a long career as a lead- Supreme Court” and the most presti-
0 ing legal theorist and as a professor and gious circuit,15 from which we would
3)
)
47)
1)
T (11
dean at Yale Law School. Forty-three expect legal academics to emerge. The
T (2
IC (2
CE (
OUR
M EN
former Calabresi clerks are in the legal circuits represented expands going
D EM
C TI
TE C
ER N
PR A
academy, 27 at top-25 law schools. down the list of judges.
AC A
S TA
GOV
Calabresi leads a clear top seven Figure 2. Appointing President. In
with 20 or more academic for- 1978, Congress enacted the Omnibus
judge to her former clerks and the law mer clerks. Joining him are Stephen Judgeship Act,16 creating 152 new
professor to her former judge. It does Reinhardt (Ninth Circuit, died in Article III judgeships, which President
not suggest that judges “feed” law 2018), Stephen Williams (D.C. Circuit, Jimmy Carter filled during the follow-
faculties as they “feed” SCOTUS. Nor died in 2020), Dorothy Nelson (Ninth ing two years of his term. Many judges
does it suggest the judge “got” the Circuit, senior judge), Richard Posner on the list were appointed in that two-
former clerk an academic job, as she (Seventh Circuit, re- year span; many remain
might have “gotten” the former clerk a tired in 2017), Harry on the bench or pro-
later, higher clerkship, often with one Edwards (D.C. Circuit, The clear duced substantial num-
phone call. senior judge), and “winner” is Guido bers of academic former
This study offers a snapshot of judges
and their academic former clerks
Patricia Wald (D.C. Cir-
cuit, retired in 1999,
Calabresi, senior clerks prior to leaving
the bench.
serving on U.S. law faculties as of fall died in 2019). Ninety- judge on the Figure 3. Prior Position.
2019, one point in time. This study one of the 102 served Second Circuit, Five of the top seven
performed 25 years ago would have
produced different results; this study
on the courts of
appeals. Of the 11
appointed by feeder judges were aca-
demics before joining
repeated 25 years hence will produce district judges, the President Bill the bench — Calabresi
different results. Nevertheless, we can highest ranked are Clinton in 1994 at Yale, Williams at
learn something from this snapshot of Jack Weinstein (East- following a University of Colorado,
the courts and the academy — telling
us where we were, where we are, and
ern District of New
York, senior judge),14
long career as Nelson at University
of Southern California,
where we might go. with 14 academic a leading legal Posner at The Univers-
former clerks, and theorist and as ity of Chicago, and
I. ALL LOWER-COURT JUDGES
The core study examines federal low-
Marilyn Hall Patel
(Northern District of
a professor and Edwards at University
of Michigan and at
er-court judges, who represent the California, retired in dean at Yale Law Harvard. Two of the top
main academic feeders. I identified 2012) and Louis Pollak School. Forty- district judges joined
325 judges with at least three aca-
demic former clerks. From that, I
(Eastern District of
Pennsylvania, died in
three former the bench from the
academy — Weinstein
focus on a top group of 102 judges 2012), each with 13. Calabresi clerks (Columbia) and Pollak
with at least eight academic former Figures 1–3 (above are in the legal (Yale and Penn).
clerks. This excludes 223 judges, two-
thirds of those studied. This illustrates
and previous page)
illustrate biographical
academy, 27 This top
includes 22 women,
group
the bunching among judges at lower information for these at top-25 law five African Americans,
numbers of academic former clerks, top 102 judges. schools. and two Hispanics. u
64 Vol. 105 No. 1
Fifty-four remain on the bench, 17 on FIGURE 4: APPOINTING PRESIDENT FIGURE 5: PRIOR POSITION
active status.
Frequency measures the number of 30
20
academic former clerks per year on the 25
15 20
bench; this can be framed as how often
a former clerk enters teaching or as 10 15
the number of clerks per judicial term 10
5
who enter teaching. Unsurprisingly, 5
Calabresi leads, with 1.68 academic 0 0
.
30)
0)
)
)
(18)
)
)
IC (4
(1)
(5)
T (8
(4)
)
)
)
(8)
R (1
D (2
N (1
Y (2
N (9
former clerks per year on the bench,
T (1
CE (
SH
GAN
ON
TON
OUR
T ER
WE
N ED
D EM
M EN
F OR
MA
NSO
BU
meaning an average of more than 1.5
C TI
NI X
C L IN
NH O
RE A
C AR
T RU
TE C
K EN
PR A
AC A
JOH
.W.
ER N
Calabresi clerks from each term has
S TA
EI SE
G .H
GOV
entered teaching. Reinhardt, Williams,
Nelson, Posner, Wald, and William
Norris (Ninth Circuit, retired in 1997) itate towards the perceived greater House for 12 years following the elec-
are at or a bit below one clerk per term. prestige of appellate clerkships, tion of Ronald Reagan in 1980. By the
Abner Mikva (D.C. Circuit, retired in including with the hope (sometimes time Bill Clinton entered the White
1994) stands at .8, with 12 academic for- realized, usually not) of landing a House in 1993, many judges in this
mer clerks in 15 years on the bench.17 Supreme Court clerkship. But many group were too old to be politically ben-
Seventeen judges are at or above .5 per law professors clerked on the federal eficial as court of appeals appointees.18
term — that is, an average of one-half trial courts, either alone or in addition Figure 5. Prior Position. Most district
clerk per term entered teaching, mean- to the court of appeals. Some court of judges came from private practice.
ing one academic from every two years appeals judges prefer prior clerking Four came from the legal academy:
of law clerks. experience, hiring their clerks from Weinstein taught at Columbia; Pollak
The judges with the most academic current trial-court clerkships rather taught and was dean at Yale and Penn;
former clerks also have the greatest than from law school. Thelton Henderson (Central District
distribution of academic former clerks The top 102 judges with eight or more of California, senior judge,) taught at
at top-tier law schools. The top seven academic former clerks, described in Stanford and Golden Gate University;
judges have 60–75 percent of their aca- Part I and Table 1 (see tables in appendix and Israel Glasser (Eastern District of
demic former clerks at top-25 schools online at judicature.duke.edu), include New York, senior judge) was a faculty
and a higher percentage at top-50 11 district judges. Part II and Table 2 member and dean at Brooklyn Law
schools. The distribution broadens as present 51 judges who spent their School.
we move down the list, with smaller careers on the federal district courts Thirteen of the 51 judges are women
percentages of former clerks at top- and who have four or more academic and three are African American. Four-
25 schools. But most judges on the list former clerks. teen remain on the bench, two on
have approximately half of their aca- Figures 4–6 (above and at right) illus- active status.
demic former clerks within the top-50 trate biographical information for More than half the judges cluster
schools and a substantial majority these 51 district judges. in five districts — Southern District of
within the top-100 schools, reflecting Figure 4. Appointing President. The New York, which includes Manhattan
the value of the clerkship, especially a partisan skew is more noticeable with (13); Northern District of California,
federal appellate clerkship, as an aca- district judges. The substantial num- which includes San Francisco (6);
demic credential. ber of Carter appointees illustrates an Eastern District of New York, which
interesting point. Many Carter appoin- includes Brooklyn (5); Eastern District
II. FEDERAL DISTRICT JUDGES tees served more than 30 years on the of Pennsylvania, which includes
The vast majority of academic feeder district courts. Some might have been Philadelphia (5); and District of
judges serve on federal courts of considered for elevation to the court Massachusetts (5).
appeals. Many law professors were top of appeals by a Democratic president, Academic former district clerks are
students at top law schools, who grav- but Democrats were out of the White broadly distributed across groups ofJudicature 65
FIGURE 6: COURTS FIGURE 7: APPOINTING FIGURE 8: PRIOR POSITION
PRESIDENT
12 30
10 25
20
8
15
6
10
4 5
2 0
1)
)
27)
5)
T (9
0
T (1
IC (
CE (
M EN
OUR
. (1)
. (2)
(2)
. (2)
(5)
D EM
. (1)
1)
. (1)
. (4)
)
. (1)
. (4)
(6)
DEMOCRAT REPUBLICAN
. (12
C TI
T. (1
IR .
IR .
ER N
IR .
C IR
C IR
C IR
C IR
. C IR
C IR
C IR
C IR
TE C
CLINTON (42) BUSH (9)
PR A
AC A
C IR
.C
C
T. C
C
GOV
7TH
5TH
.
4T H
6TH
H
8TH
2D
3D
S TA
1S T
OBAMA (1)
D.C
F ED
9TH
10T
DIS
law schools. One outlier is Kimba Wood all provide legal experience, cre- the first three years of Trump appoint-
(Southern District of New York, senior dentials, and time to prepare for ments. It extends to judges with three
judge): All nine academic former clerks permanent academic positions, espe- or more academic former clerks,
teach at top-50 schools, eight in the top cially by publishing and teaching. accounting for bunching within cat-
25.19 Eight of Patel’s 13 academic for- Recent appointees have fewer for- egories while providing a sufficient
mer clerks teach at top-25 schools. mer clerks and less time for those sample of judges to compensate for the
former clerks to complete the multi- lag between clerkship and academia.
III. FEDERAL JUDGES year path from clerkship to law faculty, This establishes a group of judges who
APPOINTED SINCE 1995 meaning fewer opportunities to pro- have been on the bench long enough to
Unsurprisingly, the raw numbers duce academic former clerks. Former produce significant numbers of former
skew towards longer-serving judges. clerks for early Barack Obama appoin- clerks and academic former clerks and
A judge who has tees might begin who are likely to remain on the bench
employed three to Unsurprisingly, hitting the aca- for another decade or more with time
four law clerks every
year for 35 years on
the raw numbers demic job market in
the next few years,
to produce more former clerks and
more academic former clerks.
the bench produces skew towards while former clerks Table 3 (see appendix online at judi-
more former clerks longer-serving for Donald Trump cature.duke.edu) shows 52 judges,
and more former clerks judges. . . . Former appointees may be appointed since 1995, with three or
clerks for early
who enter legal aca- several years away. more academic former clerks. Sixteen
demia. In addition, a This part examines appeared among the top-102 feeders
permanent academic Barack Obama judges appointed in Part I and Table 1, while Calabresi,
career often begins appointees might since 1995, a period appointed in 1994, missed the begin-
five or more years fol-
lowing completion of
begin hitting the covering 25 years to
when this study was
ning of this window by one year.
Figure 6. Courts. The Ninth Circuit
the clerkship. Former academic job written, offering a continues to lead the list with 12
clerks take other clerk- market in the picture of academic judges, followed by the Second
ships (potentially on the
Supreme Court), enter
next few years, former clerks from
relatively newer
Circuit with six. But the distribution
is broader within this smaller group.
government service while former judges. This covers The Sixth Circuit emerges with five
or private practice, clerks for Donald all George W. Bush judges, including Karen Nelson Moore,
pursue further grad-
uate education,20 or
Trump appointees and Obama appoint-
ments, the last five
a Clinton appointee with ten academic
former clerks, and Jeffrey Sutton, a
take short-term fellow- may be several years of Clinton George W. Bush appointee and long-
ships or visitorships;21 years away. appointments, and list potential Republican SCOTUS u66 Vol. 105 No. 1
appointee, with four. Eleven district
judges are in this mix, all in the range
Sixteen judges in
this group are women,
Among current ing remains steady
over a judicial career.
of 3–4 former clerks. three are African justices, Stephen But frequency might
Figure 7. Appointing President. No American, and two are Breyer, a former accelerate as a judge
Trump appointee has produced an aca- Hispanic. All but five law professor at serves longer, pro-
demic, likely because none has been on
the bench long enough, and insufficient
remain on the bench,
and 27 maintain active
Harvard, has 24 duces academic for-
mer clerks, and devel-
time has lapsed since the end of any status; many should academic former ops a reputation for
clerkship to begin an academic career. add to their totals in clerks. From having law clerks
The most recent appointee on the list is
Raymond Lohier (Second Circuit), a 2010
the coming years and
should be higher on
there, however, enter teaching, making
her chambers attrac-
Obama appointee, with four academic the overall list 20 years the drop on tive to clerks with
former clerks. Late-Clinton appointees from now. The lower the current academic ambitions.
have served longer than Bush appoin-
tees, offering more time for former
end of this group again
bunches — ten recent
Court is steep, If frequency increases
over time (something
clerks to land teaching jobs. appointees have four to Clarence this study does not
Figure 8. Prior Position. William academic former clerks Thomas’s 13 measure), numbers for
Fletcher (Ninth Circuit) taught at
University of California-Berkeley;
and 18 have three. The
distribution across
(in 28 years on some judges could
rise higher.
Robert Katzmann (Second Circuit, classes of law schools the Court, a rate Two judges — Robert
senior judge,) taught at Georgetown remains broad, with a of less than one Sack (Second Circuit,
University; Moore taught at Case smaller percentage of academic for senior judge), and
Western Reserve University; Jay Bybee
(Ninth Circuit, senior judge) taught
academic former clerks
at top-25 schools. every two terms Thomas Ambro (Third
Circuit) — project into
at Louisiana State University and Table 4 (available of law clerks). the coveted 20–30
University of Nevada-Las Vegas; and in an appendix online range.23 Five others —
Michael McConnell (Tenth Circuit, at judicature.duke.edu) A. Wallace Tashima
resigned in 2009) taught at University offers a different (Ninth Circuit, senior
of Chicago and University of Utah. way to represent academic feeders judge), Kermit Lipez (First Circuit,
These five former academics repre- among newer judges — projecting senior judge), M. Margaret McKeown
sent 9.6 percent of the 52 judges on the from current rate of placement after 25 (Ninth Cir-cuit), Bybee, and Lohier —
post-1995 list. By contrast, 20 percent years or less on the bench to a 35-year project into the upper teens. Seven
of the top-102 overall judges in Table judicial career. Thirty-five years rep- judges who did not make the (admit-
1 joined the bench from the academy, resents a reasonable benchmark. It is tedly arbitrary) eight-clerk cut in
including five of the top seven and ten close to the median time on the bench Table 1 would exceed eight in 35 years,
of the top 30. The dramatic reduction for the top-30 judges (36 years) and the five reaching into double digits —
may indicate a change in the path from median time on the bench for the top Marsha Berzon (Ninth Circuit), Julio
the academy to the bench. Presidents seven (37 years). The 60 judges in Table I Fuentes (Third Circuit, senior judge),
are appointing fewer judges from the with 11 or more academic former clerks Chester Straub (Second Circuit, senior
academy. Alternatively, the former served (or continue to serve) judicial judge), Milan Smith (Ninth Circuit),
academics who reached the bench inter- careers of between 35 and 40 years. and Lohier.
sperse government service with their The 35-year benchmark assumes Several judges in this group could
academic appointments. For exam- similarities of age, age at appointment, represent the next wave of academic
ple, prior to his 2003 appointment to interest, health, and circumstances, feeder judges. Lohier has four academic
the Ninth Circuit, Bybee worked in the although variance will affect length former clerks in a decade on the bench.
executive branch for both Presidents of service and numbers of academic At that rate of .44 academic clerks per
Bush, including as head of the Office of former clerks. It also assumes that term, he should reach ten clerks in
Legal Counsel for George W. Bush.22 frequency of clerks entering teach- another 14 years, meaning by his quar-Judicature 67 ter-century mark on the bench, and mer clerks, 11 with eight or more, two before joining the bench, who died at least 15 clerks in a 35-year career. with 13, and one with 14. in September 2020 — has 29 former Notably, Lohier turns 56 in 2021, so a clerks in teaching. 40-to-45-year judicial career (and 20 IV. STATE COURTS Among current justices, Stephen academic former clerks) is not out of Table 5 shows 18 state-court judges (all Breyer, a former law professor at the question. Bybee’s eight in 16 years but one on the state’s highest court) Harvard, has 24 academic former projects to 17 in 35 years. Sutton (Sixth with two or more academic former clerks. From there, however, the Circuit, appointed in 2003) has four clerks. Matthew Tobriner (Supreme drop on the current Court is steep, to academic former clerks in 16 years, a Court of California, retired in 1982) Clarence Thomas’s 13 (in 28 years on the rate of .25 per year, and a projection tops the list with eight. Court, a rate of less than one academic of eight by 35 years; Jennifer Walker The breakdown reflects the per- for every two terms of law clerks), and Elrod (Fifth Circuit, appointed in 2007) ceived decreased prestige of state the remaining justices in single digits. has three in 12 years, the same .25 rate, courts and thus of state-court clerk- Because these are raw numbers, and the same projection of eight. Like ships as a path to academia. Of the 18 time on the Court matters. Other than Lohier, Elrod is in her early 50s and jurists, only Denise Johnson (Supreme Thomas and Breyer, the current jus- a 45-year judicial career is possible, Court of Vermont, appointed in 1990), tices have served for 15 or fewer years. which would project to more than ten John Broderick (Supreme Court of Sonia Sotomayor, appointed in 2009, academic former clerks. New Hampshire, appointed in 1995), has nine academic former clerks,25 McConnell offers an interesting and Roderick Ireland (Supreme Judicial triple John Roberts and Samuel Alito, what-if scenario. He was a leading Court of Massachusetts, appointed in both appointed four years earlier. constitutional law and law-and- 1997) joined their respective courts Elena Kagan, a former professor religion scholar in a teaching career at post-1990. Only six of 18 remained on at University of Chicago and dean University of Chicago and University their respective courts post-2000, and at Harvard, appointed in 2010, has of Utah. He was appointed to the none remains in active service. the same number of academic for- Tenth Circuit in 2002 by George H.W. mer clerks as Roberts and Alito. Neil Bush but resigned in 2009 to join the V. SCOTUS EFFECTS Gorsuch (appointed by President Trump Stanford law faculty. In less than seven A Supreme Court clerkship offers a tra- in 2017), Brett Kavanaugh (appointed years on the bench, McConnell pro- ditional and unique credential and path in 2018), and Amy Coney Barrett duced six academic former clerks, half to law teaching, particularly at elite (appointed in 2020) have not been on at top-25 schools, a frequency of .86 schools.24 This part considers the effect the Court long enough to have clerks academics per year, almost one clerk of Supreme Court clerkships on aca- enter teaching, for the same reasons per term entering teaching. Over a demic placement. as many lower-court judges discussed 35-year career, this would have pro- in Part III.26 Stephanie Barclay did take jected to more than 30 academic former A. Supreme Court Clerks in Academia a leave from her faculty position at clerks, numbers similar to Williams, Table 6 shows academic former clerks Brigham Young University, a top-50 Posner, and Dorothy Nelson near the for current justices and Table 7 shows law school, to clerk for Gorsuch during top of the overall feeder group. academic former clerks for former October Term 2019.27 A final notable piece is the relative justices. Both tables (see appendix A notable-but-unsurprising fact is paucity of more-recent district-court online at judicature.duke.edu) show the that a significant percentage of aca- appointees. Of the 11 district judges breakdown by the U.S. News rankings demic former Supreme Court clerks, in Tables 3 and 4, none has more than of the law schools at which former regardless of overall number of place- three academic former clerks. Five clerks teach. ments for that justice, land at top-25 project to five or more academic for- More than 30 former clerks for schools. All three of Kagan’s academic mer clerks in 35-year careers. This each of David Souter, John Paul former clerks and two of Roberts’s contrasts with the larger list of 51 Stevens, Sandra Day O’Connor, and academic former clerks teach at top- district judges in Part II and Table 2; Thurgood Marshall remain on law 25 schools, while eight of Sotomayor’s it includes longer-serving judges: 24 faculties. Ruth Bader Ginsburg — a law nine teach in the top 50. judges with six or more academic for- professor at Rutgers and Columbia u
68 Vol. 105 No. 1 B. Non-SCOTUS Clerks in Academia 1, isolating numbers of academic for- mer Wright clerks remaining in law The primary focus of this study has mer clerks for whom the lower-court teaching, ten clerked on SCOTUS. been identifying the academic feed- clerkship represented the highest ers from among lower-court judges. clerking credential (or one of several VI. JUDICIAL SNAPSHOT: As an academic candidate, a former highest clerking credentials). CONCLUSIONS AND SCOTUS clerk is viewed less as a Calabresi remains atop the list, based LIMITATIONS “Court of Appeals Judge X clerk” than on pure numbers; removing 15 SCOTUS The question is what to do with this as a “Justice Y clerk.” Or she is viewed clerks, he has produced nearly 30 aca- information or if it tells us anything. as both. Either way, the High Court demic former clerks. Dorothy Nelson, This part offers several descriptive and clerkship does some of the work in Reinhardt, and Williams remain in normative points, while recognizing establishing the candidate’s elite aca- the top four. Of the remaining judges some limitations on the study. demic credentials. It also confounds at the top of Table 1, Posner drops to whether the lower-court judge serves eighth (from 28 to 16 academic for- A. Not Causal or Advisory, as academic feeder or whether the mer clerks), Wald to 23rd (20 to 12); but Correlative lower-court judge serves as SCOTUS and Edwards to 26th (23 to 11). SCOTUS It is facile to say these results prove feeder with the SCOTUS clerkship clerks represent more than half of aca- that budding academics should clerk serving as the academic feeder. demic former clerks for several judges for Guido Calabresi or Dorothy Nelson The lower-court judges identified near the top of Table 1. David Tatel (D.C. or Harry Edwards if given the oppor- as academic feeders overlap with the Circuit) drops from 19 academic for- tunity, because doing so will lead to a lower-court judges recognized as mer clerks to nine; J. Harvie Wilkinson great career in law teaching. A budding SCOTUS feeders. Of Todd Peppers’s (Fourth Circuit) from 18 to seven; anything in the legal profession should top SCOTUS feeders for 1986–2004, Pierre Leval (Second Circuit, senior clerk for Guido Calabresi or Dorothy 20 of the top 28 have at least eight judge) from 18 to 11; Michael Boudin Nelson or Harry Edwards if given the academic former clerks.28 Of Artemus (First Circuit, senior judge) from 16 to opportunity, because doing so will lead Ward’s and David Weiden’s top SCOTUS seven; and Garland from 15 to eight. to a great career in law. Nor do I expect feeders for 1962–2002, eight of the top Each judge is (or was, in Garland’s case) a clerkship applicant to choose between ten remain in the top 102 for academ- recognized SCOTUS feeders, so much Judge X and Judge Y based on these ics, including 15 of the top 24 judges of their academic feeding overlaps numbers, although the information by frequency.29 Of the 11 lower-court with their SCOTUS feeding. may be of interest to the judges and to judges who have placed 20 or more Meanwhile, Judith Rogers (D.C. potential clerks with academic ambi- clerks on SCOTUS since 2004, seven Circuit), Dolores Sloviter (Third Circuit, tions. Nor is this an attempt at a causal have ten or more academic former senior judge), James Browning (Ninth argument — the clerkship is not a prox- clerks.30 Of the 20 lower-court judges Circuit, died in 2012), Damon Keith imate cause for a person “getting” an who have placed between eight and (Sixth Circuit, died in 2019), John academic job. These numbers instead 18 clerks on SCOTUS, nine have eight Noonan (Ninth Circuit, died in 2017), reveal a correlation between the clerk- or more former clerks in teaching.31 John Walker (Second Circuit, senior ing credential and the academic job and Using similar data, Adam Feldman judge), and Jane Roth (Third Circuit, between particular judges and clerks identified ten “most central” judges senior judge) have high numbers of interested in law teaching. in producing Supreme Court clerks; academic former clerks, none of whom This is not to minimize the impor- seven appear in the top 102 (Table 1) clerked for SCOTUS. Betty Fletcher tance of the clerkship or the name and an eighth, Sutton, is among the (Ninth Circuit, senior judge, died in recognition of the judge in obtaining leaders for post-1995 appointees and 2012), Jon Newman (Second Circuit, teaching jobs, which remain critical in 35-year-projection (Tables 3 and 4).32 senior judge), and Weinstein each had pieces of a teaching candidate’s CV. Table 8 (see appendix online at one former clerk pass through the High Many judges serve as important, often judicature.duke.edu) identifies “non- Court. At the lower end, the extreme personal, references for entry-level SCOTUS-feeder judges” with 11 or is J. Skelly Wright (D.C. Circuit, died in candidates. Being a “Judge X Clerk” more academic former clerks. It reor- 1988), a known feeder judge during the or “Justice Y Clerk,” perhaps with a ders the lower-court judges in Table Warren and Burger Courts.33 Of 11 for- strong recommendation from the
Judicature 69
jurist, helps secure an
academic position.
Fewer modern Although their pay is
substantial compared
significant credentials for a position in
the modern law school. Of course, such
Clerking and law faculty members with other academics pre-tenure-track programs appear
teaching connect in move directly and most occupations, to hire potential academics based on
natural ways. Both
attract high-achieving
from chambers law professors earn less
than their counterparts
law school, academic performance,
and clerkship; that is, the credentials
law students from (especially in private practice. that corralled a tenure-track job two
top law schools. Both lower-court But the modern generations ago now corral the fel-
demand people per- chambers) to legal academy and lowship that corrals the tenure-track
sonally and financially
able to relocate for
tenure-track the modern academic
hiring process attenu-
job.40 The clerkship remains vital, but
one step removed — rather than the
short-term jobs, per- faculty positions. ate causal connections clerkship helping a candidate obtain a
haps multiple times. Candidates among judge, clerkship, tenure-track teaching job, the clerkship
Someone may land
a one- or two-year
seek further and academic position.
The nature of aca-
helps her obtain the fellowship or VAP,
which helps her obtain the teaching
clerkship in a differ- education demic hiring and the job. This formalizes the several-year
ent state from where or teaching requirements for teach- gap between finishing a clerkship and
she attended law
school (or plans to
experience and ing jobs have changed.
Two or three genera-
entering teaching, given the need to
spend time in pre-faculty positions.
practice) or multiple time to engage tions ago, the clerkship The Great Recession of 2008 appears
clerkships in different in scholarly was the essential cre- to have exacerbated the disconnect
states; someone may
move multiple times
writing and dential, and a call from
the judge or justice to
between clerkship and teaching. The
economic downturn slowed faculty
in two or three years publishing the law-school dean was hiring, reducing the number of aca-
for different clerking through VAP the ticket to the teach- demic opportunities for recent clerks
opportunities. An aca- and fellowship ing job. Louis Brandeis and for clerks from recently appointed
demic candidate has
least control over
programs; all favored clerks whom
he believed would be-
judges. According to data collected by
the legal-academic blog PrawfsBlawg,
where she lands a provide more come law teachers.36 It the number of self-reported new fac-
job, and a professor significant was a direct path from ulty hires reached 167 in 2008 and
may teach or visit34 at
many schools in dif-
credentials Harvard Law School
to Brandeis Chambers
dropped from 155 in 2011 to 62 in 2017.41
A different study showed a reduction
ferent locations over for a position to faculty office with a of more than 1,400 full-time faculty
her career. The recent in the modern call or letter from Felix positions between 2010 and 2016,42
rise of VAPs, fel-
lowships, and other
law school. Frankfurter (then on
the Harvard faculty)
following a decade (1998–2008) during
which law faculties grew by more than
entry-level teaching about the law student to 40 percent.43
programs35 adds a layer of short-term, the Justice and from the Justice about New hires rose to 82 in 2019 and 88 in
geographically shifting work on the the law clerk to the dean of the hiring 2020 but remain about half of new hires
academic career path. A potential aca- law school.37 for each year in the late 2000s.44 And
demic might attend law school in one Fewer modern faculty members move any limited recovery in academic hir-
place, clerk for one year in another directly from chambers (especially ing may be slowed — if not halted and
place, move to a third place for a two- lower-court chambers) to tenure-track reversed — by the unknown but poten-
year fellowship, then move elsewhere faculty positions. Candidates seek fur- tially catastrophic economic effects of
when she lands a permanent fac- ther education38 or teaching experience COVID-19 on legal education,45 which
ulty position. Finally, clerking and law and time to engage in scholarly writing may include a new round of hiring
teaching require someone personally and publishing through VAP and fel- freezes and faculty downsizing, reduc-
and financially able to earn less money. lowship programs;39 all provide more ing available academic opportunities. u70 Vol. 105 No. 1
This change in the hiring landscape
colors the study in two respects. The
specializing in a par-
ticular type of prestige
Sixty of the top with close to a quarter
or more of clerks for
high numbers of academic former legal work. 102 judges with each justice, regardless
clerks from top judges reflect the times eight or more of appointing president
in which their former clerks entered B. Political Imbalance former clerks or ideology, enter-
in teaching are
the legal academy. It was easier for The political imbalance ing legal academia,
Calabresi or Nelson or Posner to pro- among feeder judges is including 43 percent of
duce academic former clerks in 2008, striking. Sixty of the Democratic Marshall clerks.48
when 167 new professors were hired top 102 judges with appointees. But William Nelson
in the middle of a decade of faculty
expansion. Lohier’s four academic for-
eight or more former
clerks in teaching are
Thirty-nine of 51 and his co-authors
argue that the
mer clerks in a decade or Bybee’s seven Democratic appoin- district judges SCOTUS-to-academia
in 16 years are stronger than raw num- tees. Thirty-nine of 51 with four or path changed on the
bers suggest, given that their former
clerks entered a market in which half
district judges with
four or more academic
more academic Rehnquist Court, spec-
ifically the Rehnquist
as many teaching jobs were to be had. former clerks are former clerks Court as constituted
Presuming faculty hiring never returns Democratic appoin- are Democratic from 1994–2005.49 Of
to pre-2011 numbers, newer judges,
even those whose former clerks seek
tees. Forty-three of 52
recent (1995–present)
appointees. the five conservative-
leaning justices, three
to enter teaching, may never reach judges are Democratic had less than 20
similar placement levels. The new appointees. percent of for-
academic feeder judge may produce Comparing two recent appoin- mer clerks enter teaching. 50
Only
academic former clerks in the teens tees illustrates the imbalance. Lohier Antonin Scalia — a faculty member at
rather than 20s or 30s. Fewer aca- (Obama appointee to the Second University of Chicago prior to
demic jobs and more post-clerkship Circuit in 2010) and Elrod (George W. joining the federal bench — pro-
requirements mean longer clerkship- Bush appointee to the Fifth Circuit duced academics at a rate of approxi-
to-faculty lags, lower numbers, and in 2007) are close in age and were mately 25 percent, which would have
more time on the bench needed to pro- appointed three years apart. As of this placed him on the lower end of the
duce a large group of former clerks and study, Lohier has one more academic Warren and Burger Courts.51 And
thus academic former clerks. former clerk in three fewer years on Scalia famously hired one “counter-
Finally, the changing nature of law the bench and more than three times clerk” each term — a clerk who did
practice perhaps affects academic hir- the annual rate. Lohier projects to 15 not share his conservative/origi-
ing on the money-and-geography axis. academic former clerks in 35 years, nalist/textualist jurisprudence and
Many law firms maintain dedicated while Elrod projects to eight or nine in would check the Justice’s failure to
Supreme Court and appellate practices, the same period. adhere to his methodology52 — many
creating a specialized Supreme Court That political imbalance shows of whom entered law teaching.53
and appellate bar.46 This new practice among former SCOTUS clerks. Among By contrast, O’Connor and the four
area offers former law clerks a place to the current justices with the most aca- liberal-leaning justices of the
specialize in writing and speaking on demic former clerks (Breyer, Thomas, Rehnquist Court placed clerks at rates
high-level constitutional and public- Sotomayor), two are Democratic similar to their predecessors, with
law issues, an opportunity that a gener- appointees — and Breyer has more than Souter continuing Marshall’s tradition
ation or two ago was available primarily twice the number as Thomas in three of almost 45 percent of former clerks
to academics. A former federal clerk fewer years on the Court. Brandeis entering teaching.54
can engage in prestigious and desirable envisioned the Supreme Court clerk- There are benign explanations for
“sexy” legal work while making law- ship as a path to law teaching when he this political imbalance. The creation
firm money and living and working in developed the model in the 1920s and of new judgeships in 1978 presented
her chosen major city. The academy is ’30s.47 The numbers backed that up Carter with an unusually large number
no longer the sole or primary path to through the Warren and Burger Courts, of vacancies to fill between 1978 andJudicature 71 1980. Assuming a delay of five years attract similarly conservative clerks demic former clerks, and none projects from clerkship to teaching job, clerks who then seek academic positions, the to more than six over a 35-year career. for late-Clinton and early-Bush appoin- clerks’ success or failure in becoming In other words, fewer former dis- tees hit the teaching market during academic former clerks may suggest trict-court clerks are entering legal a decade of expanding faculties and something about hiring bias. academia. Many former district-court waves of faculty hiring, while late-Bush Two facts may confound that con- clerks on law faculties are on the back- and Obama appointees hit the teaching clusion. One is COVID-19’s unknown end of their careers and are not being market during a steep downturn in the long-term negative effects on faculty replaced by more recent clerks for cur- hiring market. hiring, with Trump-appointee for- rent district judges. A less benign explanation is that mer clerks entering an unfavorable job Perhaps district-judge placements are the imbalance demonstrates the market, similar to that of 2011–2017.61 the most direct victim of the decrease long-complained-of anti-conservative A second may be Trump’s status as an in faculty hiring. If, post-2008, 75 can- bias on law faculties and in law- outlier president — he was impeached didates get new teaching jobs each year faculty hiring.55 Party affiliation may twice and ended his term in office with- rather than 160, the relative “prestige” be an accurate indicator of judicial out acknowledging the election results of an appellate clerkship may explain ideology, and judges may hire ideo- or participating in the peaceful tran- schools hiring former appellate clerks, logically sympathetic clerks, whether sition of presidential administrations. with no positions remaining for for- because judges seek matching clerks But many Trump judicial appointees mer district-court clerks. In addition, or because prospective clerks seek were “traditional” Republican judges alternative paths to the academy per- matching judges.56 It is less clear how whom any Republican president would haps make former district clerks less ideological preferences shape these have appointed. That should be espe- appealing as candidates compared with practices on lower courts, especially cially true for the court of appeals a non-clerk candidate holding a Ph.D. or district courts.57 But the possibility of judges likely to attract budding aca- coming from an academic or public-in- an ideological link to a purportedly demics as law clerks. terest fellowship with publications and conservative judge (or justice) may some teaching experience. follow a purportedly conservative for- C. Changing Courts mer clerk into the academy, where 1. Federal lower-court judges 2. State court judges any hiring bias affects her chances at a The list of academic feeders among This trend is more pronounced with teaching job. lower-court judges skews towards state-court judges, with only 18 state- One indicator in the coming court of appeals judges, with hir- court judges having two or more former decade may be the teaching-market ing schools apparently viewing those clerks on current law faculties. And success of former clerks for Trump- clerkships as more prestigious and none of those 18 remains in active ser- appointed judges. Working with a those former clerks as more desirable vice. This is not to disparage state-court Republican-controlled Senate in his candidates. That skew is becoming judges or the law professors who began one term, President Trump appointed more pronounced. their careers on state supreme courts, 226 judges, including 54 appellate Part I found 11 district judges in the either years ago or more recently. But judges.58 Many were prominent, con- top-102 judges (with eight or more aca- it reflects the common perception of a servative, and ideological, selected demic former clerks). But none of those loss in prestige of state courts and the with the assistance of Leonard Leo 11 was appointed post-1990; the latest, conclusion by law graduates with eyes and the Federalist Society.59 They Kimba Wood, was appointed in 1988 toward teaching careers that federal include several successful legal aca- and she is the last remaining on the courts, at any level, represent a better demics, including Stephanos Bibas bench. Of 51 district judges with three path to the academy. (Third Circuit), a faculty member at or more academic former clerks (Table Several considerations might explain the University of Pennsylvania; David 2), five were appointed post-1990 and the change as to state-court judges. Stras (Eighth Circuit), a faculty mem- 13 remain on the bench. The 52 recent There are more than 1,300 state ber at the University of Minnesota;60 (1995–present) appointees (Table 3) high- and intermediate-appellate- and Barrett, a faculty member at Notre include 11 district judges; all are at the court judges, compared with fewer Dame. If these conservative judges lower end of the group with three aca- than 900 Article III federal judges. u
72 Vol. 105 No. 1
State-court judges may
enjoy shorter careers on
Sack, Ambro, D. Where We Are and
Where We Are Going
academy. Both numbers almost cer-
tainly were higher in 1985, when both
the bench, as a majority of Bybee, This study remains were on the bench and large num-
states impose mandatory Katzmann, a snapshot of the bers of their former clerks were in
retirement by 70-to-75
years of age.62 It becomes
Tashima, clerkship/academic
pipeline, capturing one
the heart of their teaching careers.
Nine former clerks for Henry Friendly
impossible for one state- Lipez, moment in time — (Dwight Eisenhower appointee to the
court judge to emerge McKeown, law faculties as of fall Second Circuit, died in 1986) remain
as a feeder over a 35- or Fletcher, 2019. The names and in the academy, a number that would
40-year career. And a
state judge who develops and Lohier numbers of judges
and professors would
have been higher in 1985. Friendly was
known for hiring clerks from across
such a reputation may find “project” have looked different the political spectrum, many of whom
herself appointed to the close to or 25 years ago; they will became prominent legal scholars of all
federal bench, from which
her clerks can follow the
more than look different if this
study is repeated 25
ideological stripes.64
In a similar vein, if this study is
easier and more common 20 academic years from now. repeated in 2055, far fewer former
path to the legal academy. former clerks, The snapshot nature Calabresi, Posner, or Wald clerks will
Of the 51 district judges in
should they
Part II and Table 2, 11 joined
results from the reg-
ular flow of clerks
remain on law faculties. The question
is whose former clerks will replace
the federal bench from the continue at (who typically work in them. Eighteen of the judges in Table
state bench, three since their current chambers for one year, 1 retain active status, including nine
1990. Of the 52 judges
appointed since 1995 (Part
rates and two years at most),
judges, and law pro-
judges with 11 or more academic for-
mer clerks; their numbers and their
III and Table 3) with three remain on the fessors. Judges join positions on this list should rise over
or more clerks, ten joined bench for 35 or and leave the bench the coming decades. Based on Table
the federal bench from the more years. and hire new batches 4, Sack, Ambro, Bybee, Katzmann,
state bench. of three or four clerks Tashima, Lipez, McKeown, Fletcher,
Another consideration each year; the longer and Lohier “project” close to or more
is jurisdiction. State courts focus on a judge serves on the bench, the more than 20 academic former clerks,
state law; law school curricula less clerks she hires and the more oppor- should they continue at their current
so. Thirty-four states have adopted tunities to hire future academics. rates and remain on the bench for 35
the Uniform Bar Examination. The People join and leave law faculties each or more years.
Uniform Commercial Code and other year. Academics should outlast their
uniform laws can be used to teach judges — a 25-year-old who clerks for
*
Thanks to Francis Curiel (FIU ’21), Gabriel Diaz
state law courses (Contracts, Torts, a 60-year-old judge and embarks on
(FIU ’21), Chandler Lefevere (FIU ’21), Sandra
Property) in a non-state-specific a 50-year academic career will be on Meija (FIU ’20), and Cecilia Torres-Toledo (FIU ’20)
for research assistance. Thanks to the Honorable
way. And scholars in these areas a law faculty long after her judge has Harry T. Edwards, Josh Blackman, Eric Carpenter,
likely write on general princi- left the bench. Federal judges serve for Christine Chabot, Adam Levitin, Matthew Lister,
Thomas Main, M,C. Mirow, Roger Michalski,
ples in these uniform laws, not the many years, producing many former Charles “Rocky” Rhodes, David Schleicher, and
specifics of one state. The state- clerks who remain in their teaching participants in faculty workshops at FIU and
University of Pittsburgh for comments and
specific clerkship on a state’s highest jobs for many years. suggestions, including new avenues of research
court may be less appealing to a bud- Three long-ago examples illustrate exploration and new and corrected data. Thanks
to the several federal judges who responded to
ding academic or to a law-school hiring the point. Twelve former clerks for an early draft of the paper.
†
committee. Even if state constitutional David Bazelon (Harry Truman appoin- With apologies. Jane Austen, Pride and Prejudice
(1813).
law stages a comeback,63 constitutional tee to the D.C. Circuit, died in 1993) and
law courses remain focused on the Con- 11 former clerks for J. Skelly Wright
stitution of the United States and its (John Kennedy appointee to the same
various amendments. court, died in 1988) remain in the legalJudicature 73
tent/uploads/2021/01/2020-Legal-Ed-at-a- tion on courts of appeals, particularly the Third
HOWARD M. Glance.pdf. Circuit, creating a unique hybrid trial/appellate
7 clerkship.
WASSERMAN Many judges on the list were appointed to
19
the district court, then elevated to the court A respected trial-court judge, Wood was Presi-
is Associate Dean for of appeals, either by the same president or a dent Clinton’s choice for Attorney General, only
Research and Faculty successor. For simplicity and space, the table to have the nomination withdrawn when it was
lists the judge’s highest court of service and the revealed that Wood had employed an undocu-
Development and president and year of the original appointment mented immigrant as her children’s nanny (at
Professor of Law at to the federal bench. For example, Judge Jane
Roth was appointed to the District of Delaware
a time when it was legal to do so). See Stephen
L. Carter, The Confirmation Mess: Cleaning Up the
Florida International by President Reagan in 1985, then elevated to Federal Appointments Process 207 & n.3 (1994).
University, where he teaches civil procedure, the Third Circuit by President George H.W. Bush 20
Many law professors earn Ph.D.s in a discipline in
in 1991. On the table, she is listed as on the Third addition to their law degrees, either while in law
evidence, federal courts, civil rights, and Circuit, but appointed by President Reagan, with school or following law school and clerking. Cf.
service from 1985–present.
First Amendment. He blogs at PrawfsBlawg, 8
A federal judge can “retire from the office” on
Justin McCrary, Joy Milligan, & James Phillips, The
Ph.D. Rises in American law Schools, 1960–2011:
is the courts law section editor of JOTWELL, full salary under the “Rule of 80,” where age + What Does It Mean for Legal Education?, 65 J.
and is a contributor at SCOTUSBlog. He 9
years of service equal 80. 28 U.S.C. § 371(a), (c). Legal Educ. 543 (2016). Yale Law School offers
a Ph.D. program in law, a research-focused
A judge who satisfies the requirements for
clerked for Chief Judge James T. Giles of the retirement can assume “senior status,” retiring graduate degree that allows a transition from
J.D. and clerkship to teaching. https://law.yale.
U.S. District Court for the Eastern District of from “regular service” but retaining “the office.”
Id. § 371(b)(1), (c). Marin K. Levy, The Promise of edu/studying-law-yale/degree-programs/gradu-
Pennsylvania and Judge Jane R. Roth of the Senior Judges, 115 Nw. U. L. Rev. 1227, 1240 (2021). ate-programs/phd-program.
21
U.S. Court of Appeals for the Third Circuit. This can create some uncertainty, because a
senior judge can cease doing judicial work while
Hess, Schwartz, & Levit, supra note 5, at 698 &
n.7; supra note 5.
He is the author of Understanding Civil retaining the designation of senior status. The 22
Bybee gained notoriety for signing the legal
Federal Judicial Center biographies categorize
Rights Litigation (2018). a judge as retired only if she submits a letter
memorandum authorizing “enhanced interro-
gation techniques.” Keith A. Petty, Professional
announcing retirement; otherwise, she is des- Responsibility Compliance and National Security
ignated as “senior,” regardless of whether she Attorneys: Adopting the Normative Framework
continues to perform judicial functions. of Internalized Legal Ethics, 2011 Utah L. Rev.
10
1
Artemus Ward & David L. Weiden, Sorcerers’ FJC categorizes a judge as “resigned” when she 1563, 1605–07; Jesselyn Raddack, Tortured Legal
Apprentices: 100 Years of Law Clerks at the United leaves the bench prior to satisfying the Rule of 80. Ethics: The Role of the Government Advisor in the
11 War on Terror, 77 U. Colo. L. Rev. 1, 37 (2006).
States Supreme Court 107–08 (2006); Todd C. Rankings are based on U.S. News & World Report
23
Peppers, Courtiers of the Marble Palace: The Rise 2021 Law School Rankings, available at https:// Merrick Garland (D.C. Circuit) would have
and Influence of the Supreme Court Law Clerk 31–34 www.usnews.com/best-graduate-schools/top- topped this group, but he left the bench in 2021,
(2006); Alexandra G. Hess, The Collapse of the law-schools/law-rankings. Schools are divided after less than 25 years, to become Attorney
House That Ruth Built: The Impact of the Feeder into five brackets—Top-25, 26–50, 51–100, General under President Biden. This marked
System on Female Judges and the Federal Judicia- 101–150, 151-and below. Garland’s second potential move off the D.C.
ry, 1970-2014, 24 Am. U. J. Gender Soc. Pol’y & L. 61 12 Circuit. Five years before becoming Attorney
Fed. Jud. Ctr., https://www.fjc.gov/history/judges.
(2015); William E. Nelson et al., The Liberal Tradi- 13
Eight tables containing this information are General, Garland was nominated by President
tion of the Supreme Court Clerkship: Its Rise, Fall, available for viewing and download at the Obama to fill the Supreme Court seat vacated by
and Reincarnation?, 62 Vand. L. Rev. 1721, 1778–79 Judicature website (judicature.duke.edu) and can the 2016 death of Antonin Scalia; the Repub-
(2009); Brad Snyder, The Judicial Genealogy (and be viewed in conjunction with the article. Infor- lican-controlled Senate never acted on the
Mythology) of John Roberts: Clerkships from Gray mation in print and online in this article, such as nomination, preserving the vacancy for the next
to Brandeis to Friendly to Roberts, 71 Ohio St. L.J. a judge’s current status, was accurate as of press president. Jonathan H. Adler, The Senate Has No
1149, 1216 (2010). time, but may have changed. Constitutional Obligation to Consider Nominees,
2
Ward & Weiden, supra note 1, at 76–85; Snyder, 14 24 Geo. Mason L. Rev. 15 (2016); Robin Bradley
Weinstein ceased performing judicial functions
supra note 1, at 1216. Kar & Jason Mazzone, The Garland Affair: What
in 2020. See Alan Feuer, A Legal Lion Lays Down
3 History and the Constitution Really Say About
Peppers, supra note 1, at 33–34. His Gavel With a Ruling of ‘Love, Not Hate’, N.Y.
4 President Obama’s Powers to Appoint a Replace-
These statistics were drawn from annual report- Times, Feb. 17, 2020. But the FJC continues to
ment for Justice Scalia, 91 N.Y.U. L. Rev. Online 53
ing by Above the Law on clerks for the upcoming record his status as “senior judge.” See supra
(2016).
Supreme Court term dating to 2004. See, e.g., note 9. 24
15 Nelson et al., supra note 1, at 1757–58.
David Lat, Supreme Court Hiring Watch, Above the See, e.g., Christopher J. Banks, The Politics of En 25
Law (Jun. 18, 2019, 6:18 PM), https://abovethelaw. Banc Review in the “Mini Supreme Court”, 13 J.L. Eleven current full-time law teachers clerked
com/2019/06/supreme-court-clerk-hiring- & Pol. 377, 379 (1997). for Sotomayor in her six years on the Southern
watch-the-return-of-the-tiger-cub/. 16 District of New York and 12 years on the Second
Pub. L. No. 95-486, 92 Stat. 1629 (1978).
5 Circuit.
Olyfunmilayo B. Arewa, Andrew P. Morriss, & 17
Mikva left the bench after 15 years to serve as 26
William D. Henderson, Enduring Hierarchies Gorsuch produced three academics in a decade
White House Counsel under President Clinton,
in American Legal Education, 89 Ind. L.J. 941, on the Tenth Circuit and Kavanaugh three in 12
then went on to teach at the University of
995–96 (2014); Gerald F. Hess, Michael Hunter years on the D.C. Circuit. Barrett served on the
Chicago. A 35-year judicial career might have
Schwartz, & Nancy Levit, Fifty Ways to Promote Seventh Circuit for less than three years before
placed him well into the 20s. Mikva’s figure
Teaching and Learning, 67 J. Legal Educ. 696, 698 her elevation, not enough time to produce any
of current academic former clerks does not
& n.7 (2018); Lucinda Jesson, So You Want to Be academics.
include Elena Kagan, who taught at Chicago and 27
a Law Professor, 59 J. Legal Educ. 450, 452–53 served as Dean at Harvard but left the academy BYU’s Law Professor Stephanie Barclay to clerk
(2010); Jessica Erickson, Final Reflections on VAP/ to pursue other endeavors. for Justice Neil Gorsuch, BYU Law News, https://
Fellowship Interview Series, PrawfsBlawg (Dec. 10, 18 law.byu.edu/news/byu-laws-professor-stepha-
To give one example: Louis Pollak, appointed
2019), https://prawfsblawg.blogs.com/prawfs- nie-barclay-to-clerk-for-justice-neil-gorsuch.
by President Carter to the district court at age 28
blawg/2019/12/final-reflections-on-vapfellow- Peppers, supra note 1, at 33–34.
56 in 1978, was 71 by the time President Clinton
ship-interview-series.html. 29
Ward & Weiden, supra note 1, at 76–85.
6 took office in 1993. Pollak assumed senior status
Legal Education at a Glance, Ass’n of Am. L. Schs. in 1991, took a reduced district court caseload, 30
Data based on Above the Law reporting of SCO-
(Jan. 25, 2021), https://www.aals.org/wp-con- and spent 20 years regularly sitting by designa- TUS clerk hiring. See supra note 4. uYou can also read
