Friday, October 06, 2006

Dahlia Lithwick is Wrong, Wrong, Wrong.

Dahlia Lithwick claims to have the solution to the problems plaguing the institution of judicial clerkships: chiefly, that they are elitist and that clerks wield undue influence over their judges. She asserts that clerkships should be limited to one year per person. One could be a federal appellate clerk or a Supreme Court clerk, but not both, as is commonly the case at present.

This is perhaps the stupidest thing Lithwick has ever said. Her solution will exacerbate at least one of the problems she attempts to remedy, and it will have little or no effect on the other. Additionally, it may have an adverse effect on the quality of legal decisions. Setting aside how effective such a rule would be (if it's anything like the clerkship application moratorium, it will be adhered to only to the extent that the judges find it beneficial) and how we'd deal with unpaid summer clerkships and externships (which of course would probably be viewed favorably by judges and which are more likely to accrue to wealthy students at wealthy law schools), let's look at what would happen under Lithwick's plan.

The amount of clerking experience held by Supreme Court clerks would decrease by at least 50%. Judge Posner claims that the modern clerkship has brought no improvement in the quality of legal decisions. But does it necessarily follow that a dramatic reduction in the amount of relevant experience each clerk has will have no effect? Previous clerkships hone legal research and writing skills that are valuable to those who choose to clerk at higher levels. And given the immense stakes involved in Supreme Court litigation, shouldn't the clerks working on those cases be doing as little on-the-job learning as possible?

Lithwick means well when she notes that her proposal would result in more people clerking. However, at present it is possible for nearly all people who are interested in clerking to do so; they may not get their first choice of jurisdiction, but it is usually possible for qualified applicants to obtain some clerkship. Lithwick assumes without evidence that there is an untapped pool of interested, qualified applicants for clerkships. I question this, and ask whether less motivated, less fit applicants should clerk.

Without question, though, there are some very intelligent people who are not justly served by the current clerkship application process. As observers of recent Supreme Court clerkship hiring may have noted, a few schools and feeder judges predominate. But Lithwick's proposal will replace the weight given to feeder judges with even more weight given to schools, and perhaps to professors within those schools. People lucky enough to be able to ingratiate themselves to a prominent professor or former colleague of the Supremes (most of them have taught and presumably retain relationships with faculty) will have an advantage; applicants from other law schools will be left out in the cold. The current clerkship process, which permits multiple clerkships, allows candidates from less well-known schools to distinguish themselves. Under the regime Lithwick proposes, such persons would probably be passed over in favor of yet another Yale or Harvard student.

Lithwick also claims that limiting clerkships to one year will address the problem of clerks' undue influence over judges. It seems to me that this ignores the strongest determinant of whether this will occur: is the judge smarter than the clerk? If the judge is smarter, then one additional year of clerking experience (under an entirely different person, with an entirely different psychology) will not allow a clerk to exercise Svengali-like influence over him. If the judge is not — well, perhaps we'd be better served by appointing smarter judges? It seems to me that along this dimension, the success of Lithwick's plan depends on its ability to reduce the IQ of the average Supreme Court clerk. For the reasons I've already mentioned, this is undesirable.

In effect, Lithwick proposes to reduce the amount of information available to judges in making their clerkship hiring decisions, to constrain the ability of law students to clerk at varying levels and obtain different experiences, and to decrease the amount of knowledge and experience wielded by people inextricably entwined in the highest levels of the practice of law. In exchange, we will get little of the benefits she claims will follow. This is a terrible, horrible, no-good, very bad idea.
blog comments powered by Disqus