Supreme Court Clerk Hiring Watch: Time For Reform?

And a new culture-war controversy at Columbia Law—over an Instagram post.

A clerk walking the halls of the U.S. Supreme Court (photo by David Lat).

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Should Supreme Court clerk hiring be regularized? Should the process be more systematic, egalitarian, and transparent?

These questions occurred to me after reading a letter sent to clerkship applicants by the chambers of Justice Ketanji Brown Jackson, in which she outlines her approach to law clerk hiring (which she completed earlier this month—so all the justices are now done for next Term except for Justice Stephen Breyer, who gets one clerk as a retired justice). I reprint Justice Jackson’s letter, which I received from a source who applied (unsuccessfully) for a clerkship with her, at the end of this post.

As set forth in the letter, Justice Jackson’s clerk hiring process differs from those of her colleagues in at least three important respects:

• It’s electric! Er, electronic—applicants must send the materials requested by Justice Jackson to a specified email address. It’s hard to believe that we’re in the year 2023 and only one justice has made the application process electronic. I assumed that some or all of the justices accepted applications electronically, whether by email or through OSCAR, the Online System for Clerkship Application and Review. But as it turns out, KBJ is actually the only justice to take applications electronically, as far as I know. Some justices use email for ancillary steps in the process, like scheduling interviews and rejecting candidates after interviews, but applications must be submitted in paper/hard-copy form in the first instance (again, as far as I know, based on responses to my Twitter inquiry and emails to some of my sources; please let me know if I’m wrong about this).

• It has a specified timetable, like most processes for applying for coveted career opportunities—e.g., Rhodes and Marshall Scholarships, the Justice Department Honors Program, Skadden Fellowships. It’s not an ad-hoc thing, like applying for a summer internship at your dad’s golfing buddy’s company. For the hiring cycle that just ended, application materials were due on or before December 31, and after Justice Jackson completed her hiring, unsuccessful applicants received an email informing them that she filled her positions (which went out around March 21 this year). With a fixed timetable, applicants don’t twist in the wind, wondering whether perhaps they might still be called for an interview. It’s a process with an annual cycle, not the open-ended, rolling process used by some other justices (who as a result can end up hiring pretty far out in time).

• It’s a “closed universe,” or as the letter explaining her process puts it, “No information will be considered outside of the formal application process. Neither applicants nor their references, recommenders, or other advocates should contact Justice Jackson or her current or former staff regarding a pending or prospective application.”

My guess is that Justice Jackson doesn’t want her process to be affected by the lobbying of feeder judges or law professors, personal or familial ties, and the like. Although she considers the input of recommenders and references—indeed, her letter explains in great detail what she’s looking for on this front—she wants that input submitted in a systematic way, not through random calls or texts from judges or professors with whom she’s friends. (And I think the warning is working; I spoke with one feeder judge who’s friendly with Justice Jackson, wanted to call her to push a certain applicant, but refrained because of the stern language in the letter.)

On the issue of family ties, after my last hiring roundup, one source wrote in with a fair point: my analysis reflects survivorship bias, defined as “the logical error of concentrating on entities that passed a selection process while overlooking those that did not.” While I highlight in these pages all the successful SCOTUS applicants with personal or familial ties to the Court, I have no way of knowing about all the SCOTUS applicants who have such ties and get rejected. So while I still think that connections matter (because I’m not a moron), I wanted to flag this issue for my readers.

Speaking of the Supreme Court, here’s an interesting little digression that combines two great obsessions of Original Jurisdiction, (1) SCOTUS and (2) campus culture wars. There’s currently a controversy raging at Columbia Law School over an Instagram post on the official CLS feed, featuring Justice Brett Kavanaugh and members of the Columbia Federalist Society at the Supreme Court:

columbialawschool

A post shared by Columbia Law School (@columbialawschool)

Here’s the caption of the post, which went up on March 14:

On February 23, members of the Columbia Federalist Society (@clsfedsoc) visited the Supreme Court of the United States to engage in conversation with Justice Brett M. Kavanaugh. During the visit, they learned about the human side of being a justice, the Court’s deliberation process, and how to be an effective advocate. Justice Kavanaugh also answered questions about a few of his most famous opinions.

As you can see from the comments to the post, it set off a firestorm, with multiple affinity groups demanding that Columbia Law delete the post—and refusing to help the CLS admissions office with recruiting admitted students, in protest. For example, here’s language from a letter sent to the administration by the Black Law Students Association of Columbia Law School:

The Black Law Students Association of Columbia Law School can not, in good conscience, work as recruiters for this law school. Our admissions department consistently looks to us to drive recruitment of Black students. Yet, when those students arrive, Columbia does little to ensure our members have a positive, safe learning environment. Frequently, they do precisely the opposite.

This past week, Columbia felt it appropriate to post our Federalist Society meeting with Justice Kavanaugh. We are disgusted by this on multiple fronts, including, but not limited to, him being credibly accused of sexual assault and being an extremist judge dedicating his career to taking rights away from vulnerable Americans. Multiple members of our executive board reached out to the communications department. They were met with responses showing little care and understanding of the extremist judge’s impact on our society.

We request the post be removed and that the school expresses some understanding of the harm caused. In the meantime, the 2022-2023 Board of the Black Law Students Association is withdrawing from formal involvement in the law school recruitment process. To be clear—this is not solely due to the Instagram post; rather, the post is part of a pattern of behavior that we can not support. Because we care so deeply for current and future Black students at this school, we will participate only in events of our own creation and management.

Other student groups joining the boycott of CLS recruitment include the Asian Pacific American Law Students Association (APALSA), Empowering Women of Color (EWOC), IfWhenHow, the Latinx Law Students Association (LALSA), the Native American Law Students Association (NALSA), OutLaws, QTPOC, and the South Asian Law Students Association (SALSA). For additional coverage, see the Volokh Conspiracy (David Bernstein) and the Daily Wire (Luke Rosiak).

More than two weeks later, the Instagram post remains up. I reached out to Columbia Law School to inquire about whether CLS will be leaving the post up or taking it down; I did not receive a response. Whether or not the IG post is removed will be an interesting indicator of where things stand in the culture wars currently being waged at elite law schools.

Okay, back to the original subject of this post, Supreme Court clerk hiring. Can someone please let me know about Justice Breyer’s hire for October Term 2023 (assuming he has made it)? Once I have the identity of that person, I can start putting together my stats for OT 2023, in terms of top law schools and feeder judges.

In the meantime, below please find two items: (1) the letter sent by the chambers of Justice Jackson to clerkship applicants, which outlines her process, and (2) updated SCOTUS clerk hiring lists, for paid subscribers to Original Jurisdiction. Thanks!

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LETTER FROM THE CHAMBERS OF JUSTICE KETANJI BROWN JACKSON TO CLERKSHIP APPLICANTS

November 8, 2022

Dear applicant -

Thank you for submitting clerkship application materials to Justice Jackson’s chambers.

Justice Jackson seeks clerks with excellent legal research and writing skills, proficiency managing complex and competing workflows, and the ability to overcome challenges. She is also interested in clerks who are committed to pursuing equal justice under law, and who bring to chambers valuable professional and personal experience that is relevant to the work of the Supreme Court, including but not limited to an appellate clerkship at the state or federal level.

Justice Jackson will begin considering applicants for October Term 2023 in January. All materials must be emailed to JusticeJackson_Clerkships@supremecourt.gov on or before December 31, 2022. The subject line of the email and the name of the attached PDF file of materials should be in the following format: Last Name, First Name Clerkship Application.

Materials must be combined into a single PDF file in the order listed below:

• Cover letter of no more than 500 words. Successful applicants will use the cover letter to explain their interest in clerking for Justice Jackson and to highlight their relevant skills and characteristics in narrative form. The cover letter should provide different information from other application materials.

• Resume of no more than two pages.

• Official law school transcript.

• Official transcripts from undergraduate and any other graduate institutions.

• List of professional references. The list should include at least four, but no more than six, professional references. Please briefly explain how long and in what context you have worked with each reference. Please also indicate at least two, but no more than four, of the listed references who will provide a letter of recommendation. Justice Jackson welcomes letters that can speak directly to the skills and characteristics she seeks on the basis of first-hand experience. All letters must be emailed to JusticeJackson_Clerkships@supremecourt.gov on or before December 31, 2022. The subject line of the email and the name of the attached PDF letter should be in the following format: Last Name, First Name Letter of Recommendation.

Justice Jackson may later ask some applicants to provide existing writing samples or to draft an original sample in response to a prompt.

No information will be considered outside of the formal application process. Neither applicants nor their references, recommenders, or other advocates should contact Justice Jackson or her current or former staff regarding a pending or prospective application.

Justice Jackson thanks you for your interest in clerking for her and looks forward to reviewing your application materials in due course.

Best regards,
The Chambers of Justice Ketanji Brown Jackson