Paul L. Caron

Thursday, May 23, 2024

Blackman: Judicial Boycotts Of Non-Elite Schools

Josh Blackman (South Texas; Google Scholar), Judicial Boycotts of Non-Elite Schools:

In April 2009, a law student at American University asked Justice Scalia how a student from her school could become "outrageously successful" without "connections and elite degrees." (The clip begins around 52:00.) Scalia laughed out loud. He answered, "Just work hard and be very good." But then he digressed to a story about Judge Jeff Sutton.

Let me tell you a story. By and large, unless I have a professor on the faculty who is a good friend and preferably a former law clerk of mine whose judgment I can trust–I'm going to be picking for Supreme Court law clerks, I can't afford a miss. I just can't. So I'm going to be picking from the law schools that are the hardest to get into, they admit the best and the brightest. They may not teach very well, but you can't make a sow's ear purse out of a silk purse. If they come in the best and the brightest, they are probably going to leave the best and the brightest. One of my former clerks [Judge Jeff Sutton] who I am the most most proud of, now sits on the Sixth Circuit Court of Appeals.  And I always refer to him as one of my former law clerks. He wasn't one of my former law clerks. [Sutton] was Lewis Powell's clerk. After Lewis took senior status, Lewis didn't have much work. [Sutton] worked full time for me. So I couldn't tell the difference between [Sutton] and my other clerks. But I wouldn't have hired Jeff Sutton. For God's sake, he went to Ohio State. [Scalia laughs.] And he is one of the very best law clerks I've ever had. He is just a brilliant guy. So don't tell me this stuff about "what do you have to do to be successful." You have to be good. I think we're done.

Scalia relayed this story several times over the years, and he was fond of telling it. The upshot is that under his own policy, he would have never hired one of his favorite law clerks.

There were many differences between Justices Scalia and Thomas. One of them concerned clerk hiring. In OT 2008, Thomas hired law clerks from Creighton, George Mason, George Washington, and Rutgers. Thomas told students at the University of Florida, "They referred to my clerks last year as TTT, third-tier trash. That's the attitude that you're up against."

Things have gotten slightly better over the past decade. Justice Thomas still routinely hires outside the T14 (top 14, roughly defined). Justice Alito has joined the mix with clerks from BYU, George Mason, LSU, Minnesota, Ohio State (yes, THE Ohio State University), and a few others. Justice Gorsuch has hired grads from Iowa, Mississippi, and BYU. And Notre Dame, which is skyrocketing in the clerkship rankings, is consistently placing grads at the Court. But otherwise, the Justices exclusively hire from elite, T14 law schools. Would anyone say that the non-T14 clerks hired by Justices Thomas, Alito, and Gorsuch, are inferior to the regulars from Harvard, Yale, and Stanford? I personally know many of these clerks, and they have gone on to great accomplishments.

Could one say that the Justices have imposed a boycott of every other law school outside the T14? I'm sure they would resist the characterization. For sure, they have not announced any public boycott. But the practical consequences of their hiring pattern is that students who graduated from non-elite law schools are persona non-grata. How many Jeff Suttons were missed by having such a restrictive view of hiring? ...

Aliza Shatzman, who founded the Legal Accountability Project, criticized the recent boycott of Columbia. But she also faulted judges for not being transparent about their hiring practices:

This manufactured controversy is just another example of the lack of transparency and equity in clerkship hiring. While most federal judges do not resort to attention-seeking tactics, many do prioritize or deprioritize certain law schools — and other characteristics — in their hiring decisions. This lack of transparency not only perpetuates inequity, but also undermines the integrity of the judiciary.

I agree with Shatzman. All things being equal, I would prefer that judges be candid about which law schools they would hire from, and which law schools they would not hire from. Put it right on OSCAR! Indeed, it would be ideal if judges can explain why some schools make the cut while others do not. ...  This transparency would save a lot of time and effort on behalf of applicants. But I suspect making these announcements public would make judges feel uncomfortable. They are happy to throw applications from 95% of schools in the garbage, but would never want to admit as such. Quiet boycotts are always far simpler. I think there is some virtue in a public, reasoned, and prospective boycott, but you knew that already.

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