BeldarBlog

Beldar's tips on applying for judicial clerkships

Prof. Eugene Volokh has solicited knowledgeable comments and recommendations about the process of applying for judicial clerkships, and his readers have left some excellent ones there already. I started writing a comment there, but (as usual for me) it quickly grew to the point of being abusive of another blogger's bandwidth. So I've left a link there, and posted here instead with my own recommendations directed to law students who are considering applying for judicial clerkships.

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My perspective on this subject is as a practicing trial lawyer who was privileged to serve as a judicial clerk 24 years ago for United States Circuit Judge Carolyn D. King. She was then in her second year on the bench, but is now the Fifth Circuit's Chief Judge. (And yes, I'm really proud of her!)

I would expand considerably on Voiceguy's recommendation in the comments to Prof. Volokh's post that you make aggressive use of professors at your own law school. Don't just talk to your "key professors." Look at your law school's entire faculty roster and make a list of which faculty members were themselves law clerks, who they clerked for, and when. De-select from your resulting list those faculty members who clerked for judges to whom, for whatever reason, you'd never consider applying. Even if you haven't had a class with a given professor and he/she doesn't know you from Adam, this is a really good self-introductory line: "I'm applying for judicial clerkships and I wonder if I could make an appointment to talk to you in your office for a few minutes about your own clerkship with Judge ___ in 198__?" If you get an encouraging response, the follow-up line is, "Could I also show you my resume and cover letter to get some tips from you about how Judge ___ might react to them?" (You always, always want to leave a copy of your resume in the hands of as many potential references/relayers of side-channel information to judges as possible.)

Then, during your interview with your new contact person/info source, if you feel comfortable based on the quality of the feedback you're getting, follow up with: "Would you be uncomfortable if I mentioned in my cover letter that one of the reasons I'm applying to Judge ___ is because of the wonderful first-hand report of your clerkship that you've given me?" Lots of profs who'd be uncomfortable giving you permission to list them as full-fledged references — just because they don't know you well enough to have an informed opinion sufficient to actually vouch for you — will nevertheless be perfectly happy for you to simply mention their names as admirers of the judges for whom they clerked.

Another good question to ask in these pre-interview interviews with ex-clerks: "If for some reason you hadn't been able to clerk for Judge ____, who else would you have liked to clerk for?" Again, this can garner real information for you, and you can put in your cover letter to those judges, "Prof. ___ at my law school recommended that I consider applying to you, based on the respect he gained for you during his own clerkship with Judge ___."  Maybe that's trivial, but it's at least something else to take your submission out of the "mass-distributed form-letter application" stack.  It beats the heck out of "I got your name out of the list at the front of a recent volume of the Federal Reporter, Third Series," which is what many judges suspect has happened.

Run this same drill with lawyers at law firms you've worked for, or other practicing lawyers with whom you've had some nontrivial contact. (They're likely to be more flattered, and generous with their time, than law school profs.) See who's had clerkships and chat them up a bit, even if you didn't work directly with them. And you can use the same self-introductory and follow-up lines mentioned above.

These sorts of contacts can be genuinely educational for you. They're flattering to the people you're making the inquiries of. If you make a really good impression, they could lead to your contact person — who's likely to be rooting for you if for no other reason than you're at ___ Law School or you've worked at ___ Law Firm — placing an unsolicited phone call or dropping an unsolicited note in the mail to his/her judge, which absolutely, positively is likely to make your resume leap out of the judge's stack. And when you do get an interview with a judge, you'll have a ready-made answer for this common question: "Why did you apply to me/my court in particular?" (Although you probably should have included that info in your cover letter, this is still often a topic of follow-up discussion in interviews.)

I strongly concur with Prof. Volokh's commenters who've recommended that you consider applying to senior status judges. A law school classmate of mine clerked for a senior status Fifth Circuit judge down the hall from my own judge. Under then-existing Fifth Circuit internal procedures, his senior status meant that he ONLY heard cases that had made it to the oral argument calendar — and he didn't have to fool with summary calendar cases (which by definition tend to be more routine) at all. If his own judge ran out of work for him to do and he got bored, he'd walk up the hall and volunteer his services on a temporary basis to MY judge, who was delighted to have the help. The biggest downside re senior-status judges may be the increased risk that you'll have accepted a clerkship (and thereby dropped out of the market), only to find, when it comes time to serve it, the clerkship is no longer available (due to unplanned-for retirements or vacancies). The second biggest downside is that, depending on local procedures, senior-status judges may not participate in en banc proceedings, which are lots of fun for clerks. (One of the two opinions I'm most proud of assisting my judge on was an en banc securities law decision from the old Fifth Circuit, with 25 active-status judges participating; our chambers was at the center of the court politics over that case, and they were particularly interesting because the then-Chief Judge of the old Fifth had written the panel opinion that was being overturned by my judge's opinion for the en banc majority. That was just way cool for a 22-year-old kid from Lamesa, Texas.)

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One last point, for what it's worth: I acknowledge their arguments, and I appreciate that not everyone has a choice. But I've never been particularly persuaded by those who assert that "You'll learn more about the 'real world' in a trial court clerkship than in an appellate court clerkship." You'll have the rest of your career in the "real world." And while working for a trial judge might teach you how to be a trial judge, working with trial lawyers can definitely teach you how to be a trial lawyer.

But unless you end up as an appellate judge yourself someday, this post-graduation clerkship is going to be your only chance to get an appellate court clerk's unique and deep insights into how law gets made at an appellate-court level, not just by your judge but also by the judges with whom he/she works. At your appellate court clerkship's end, you'll not only understand the appellate process better, but you'll have learned a whole lot more law than you knew before — including all sorts of substantive law, plus appellate procedures, plus trial court procedural law (which you'll have to constantly look up just like the trial court clerks do). Writing (or helping write) opinions is fabulous practice for writing persuasive trial court briefs, and you'll have written (or helped write) more opinions than you would have had you clerked for a trial court. You'll have developed a keen appreciation for the need to preserve error in the record for appeal if you do end up becoming a trial lawyer; standards of review, both trial and appellate, will be second nature. You'll have learned how to draft proposed findings and conclusions that are more likely to be bulletproof on appeal; trial judges recognize these when they see them, and are genuinely grateful to get them, but their own clerks may be less well equipped to draft them. And even though your exposure to trial lawyers as an appellate clerk will have only been through reading transcripts rather than through personal observation, you'll have read a WHOLE lot of trial transcripts — probably a much bigger volume of Q&A than a trial court law clerk gets to read or watch live — from which you can steal (or learn to defend against) a lot of tips and tricks.

My own Fifth Circuit clerkship was in many ways the best and most valuable year of my career, and probably the best job I've ever had. And every day of my subsequent professional life, I've used the skills — particularly the writing skills, but others as well — that I honed during that wonderful year.

You know you're a wonk when ...

... as just happened to me, your TiVo decides (based on your recent viewing patterns) to record C-SPAN's coverage of the U.S. Senate among its "Suggestions."

Does Biden's plagiaristic past preempt his presidential prospects?

InstaPundit Glenn Reynolds writes today of Joe Biden's non-coy declaration of his intention to seek the Democratic Party's presidential nomination in 2008 (hyperlinks in original):

WITH JOE BIDEN RUNNING FOR PRESIDENT, we're likely to hear more about the rather lame plagiarism scandal that sunk him in 1988.

You can read a defense of Biden in that role, from my book (with Peter Morgan), The Appearance of Impropriety, if you like. I think that Biden was shafted by the Dukakis campaign, with help from the press, and that the whole flap was silly.

Lest you think Prof. Reynolds is a Biden supporter, I must also note that his post goes on to argue that Sen. Biden's candidacy "ought to have been sunk" based on substantive positions he's taken on legislation in the past and his performance as a senator. However, having not only read the chapter excerpt from his and Mr. Morgan's book that Prof. Reynolds links, but having actually bought and read the entire book, I felt semi-qualified to respond to his bit of instapunditry on the specific topic of Sen. Biden's plagiaristic history.

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To round out my research before counterposting, I turned to every blogger's best online friend. And in an ironic coincidence, I promptly found one online resource — an opinion piece written by a journalist-pundit whom I like and respect, and with whom I've occasionally traded emails — which appears to have incorporated, without attribution, a one-paragraph description of Sen. Biden's 1988 campaign implosion that appeared in a second online resource (apparently published some years earlier) almost word-for-word.

Was this more or less consequential than Sen. Biden's well-publicized lifting of campaign speech language from British Labor party leader Neil Kinnock and other, previous examples of Sen. Biden's "stressless scholarship"? I admit to a pre-existing bias, but I would still argue that it's substantially less consequential. In all likelihood, my pundit friend had begun his writing by gathering background facts on the internet; perhaps he cut-and-pasted the paragraph into his notes, lost track of the original source, and/or forgot that it was a direct cut-and-paste, rather than his own summarization, when that paragraph made its way into the factual predicate of his own opinion essay. The facts summarized in that paragraph are essentially undisputed; the language used is unremarkable, comprising crisp but not soaring prose. The essay ought to be judged based on the merit of the opinions expressed, and its writer isn't running for president.

And yet: That pundit's reputation and credibility will inevitably affect the way his opinions are received and perceived. His reputation and credibility are in part based upon his record for accuracy and integrity. So yes, he should have included an attribution, or else have been more careful not to lift even this noncontroversial material wholesale. It appears that he was, at a minimum, very sloppy on this occasion. And sloppy may be excusable, but it's still not good.

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I agree with a great deal of the Morgan-Reynolds book — a central premise of which is that the more-or-less continuous post-Watergate frenzy over public ethics has unjustly flattened the moral landscape and led to the trivialization of genuinely bad acts. I also agree — and it would be hard for anyone to dispute, I think — that Sen. Biden's 1988 campaign was the victim of the Dukakis campaign's very hardball primary politics. And even had he not been caught in them, Sen. Biden's  bad acts in lifting some moderately well-crafted phrases from Kinnock's campaign speeches into his own, or in lifting five pages from a law review article into his own law school class submission, or his exaggeration of his academic record weren't going to actually win him any elections, or confer any substantial advantage upon him as a politician. Yes, there's a pattern; but it's a pattern of small-scale thefts, not grand larceny. And I emphatically agree with Prof. Reynolds that Sen. Biden's substantive record and political positions more than suffice to make him an unattractive candidate (although in every instance, he's been pandering to a constituency who will almost by definition disagree with that assessment).

Still, I can't quite swallow Prof. Reynolds' near-dismissal in his post today of Sen. Biden's past pattern of plagiarism. Rather, I think that the pattern does indeed speak to Sen. Biden's fitness for high public office. But it's not relevant because it shows that he is irredeemably craven or immoral. No, the real problem with Biden is not the alleged sin but the obvious stupidity it bespoke.

That last sentence I've lifted almost verbatim from the Morgan-Reynolds book (at page 146), by the way. (The "bespoke" is my own; Glenn's rarely that stuffy.) And to make my rhetorical point — here, that Prof. Reynolds himself has previously recognized the same significance of the Biden plagiarism record for which I'm arguing here — I absolutely must include an attribution!

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When I include that attribution, a diligent scholar can learn that Messrs. Morgan and Reynolds were, in turn, only quoting — with full and footnoted attribution — a Chicago Tribune column from September 1987 by Jon Margolis entitled "For Joe Biden, as with Hart, It's the Stupidity that Hurts." That diligent scholar will further find that in my near-quote of the sentence in which Morgan and Reynolds quoted Mr. Margolis, I've omitted an important qualifier: The full sentence written by Morgan and Reynolds reads (anally compulsive bracketed comma mine, but double quotation marks and footnote superscript in original):

The real problem with Biden, we were told[,] "is not the alleged sin but the obvious stupidity."²¹

So in fact, the sentiment I've attributed to Prof. Reynolds — arguably inconsistent with his post today — isn't necessarily attributable to him or to Mr. Morgan, but to Mr. Margolis!

When writing about ideas, and in particular other people's ideas, then, proper attribution can become very important indeed — not just so that credit is given when due, but so that conflations or misstatements can be identified and exposed more readily. When Prof. Reynolds is writing — whether for his InstaPundit blog or his MSNBC column, or for a popular press book, or for a law review article — his intellectual honesty obliges him to compulsive attribution. And I feel the same compulsion to "show my own work" and distinguish it from others' work; as I've written before, I think this instinct and habit is commendably common among bloggers.\^*/

I don't expect politicians to necessarily share in that compulsion, much less to adhere meticulously to standards for academic publications. But I, and I think the American public, do insist that presidential-caliber politicians not be consistently, self-destructively stupid in the minor transgressions that we might otherwise forgive.

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\^*/Then why, you may ask, have I not linked the two online sources I referenced in the beginning of this essay? It's because I'm speculating, and not making an accusation; I could be mistaken; and I've emailed the pundit in question, with a link to this post, to point out the similarities in the language in case he has an explanation that hasn't occurred to me.

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UPDATE (Mon Jun 20 @ 5:20pm): The unnamed pundit referenced near the beginning of this essay responded promptly and graciously to my emailed inquiry. He acknowledged the irony not only of his own failure to credit his original source in writing about Biden's plagiarism, but additional irony from the fact that his source was someone with whom he was well acquainted and whom he'd have been very happy to credit. He agrees that he was indeed sloppy with respect to the paragraph in question, and I'm quite certain that his self-chastisement now that it's been brought privately to his attention will prompt him to avoid this particular sin in the future. Given all that and the inconsequential content of this particular paragraph, my own judgment is that no good purpose would be served by my being more specific as to names or providing direct links. If he should ever run for president, however ....