Muller: When Should Law Students Decline A Judicial Clerkship?

Derek Muller (Notre Dame; Google Scholar), Law Students, You Can (And, Maybe Increasingly, Should) Say "No" To (Some) Judicial Clerkships:

A generation ago, virtually all Supreme Court clerks had just one prior clerkship experience. Now, nearly all of them have two, and sometimes three, clerkship experiences. We’re starting to see “stacking” of clerkships as an increasingly common practice. More students than ever are clerking for multiple federal judges. ... These two practices appear to be diverging by the type of judge.

Republican-appointed judges, particularly those appointed by President Trump, have had a fairly aggressive hiring plan. They have increasingly relied on interviewing and hiring first-year law students—and sometimes hiring them not for immediately after graduation but for some years out. And they are increasingly interested in “stacking” clerkships, as many of them are young, ambitious, and style themselves “feeders.” ...

Democratic-appointed judges, particularly those appointed by President Biden, have stuck more closely to the “plan,” which means that students must have at least two years of grades before being considered. But these judges increasingly prefer work experience—which means, hiring fewer clerks directly out of law school. They are not as aggressively “stacking,” but there are more appellate+district clerks than a generation ago (whereas many Republican judges are moving toward appellate+appellate clerks), although the combinations can of course vary. Like the Republican-appointed judges, hiring clerks with more work experience is more efficient.]

This change has shifted a lot of costs.

For one, judges used to play a greater role as mentors training new law school graduates. If law school graduates are starting their careers elsewhere before clerking for a judge, the model has shifted away from that judge-led training and mentorship model. ...

For another, judges often had clerks serve as “ambassadors” for their chambers, and for the bench more generally, as attorneys go practice in the legal profession. If “stacking” is increasingly common, then there are simply fewer such ambassadors out in the world.

And a major cost is on law school graduates. At the beginning, I noted that 25-year-old graduates might move twice after graduating law school and begin their careers at 26. Now, the expectation is increasingly to move three or four times and push of the true beginning of a career path until perhaps 30, depending on how many years the interim jobs take place. And that can of course be later for students who are not 25 but older, who perhaps took a few years off between college and law school.

This is a significant burden for law school graduates. The moving costs are high. The pressure to postpone personal or family decisions given the itinerant nature of serial jobs is significant (a point I’ve raised relatedly in the law school teaching market, too).

The opportunity and financial costs of missing or disrupting years of typical legal service can be high. On the financial front, it used to be a generation ago that starting salaries were $160,000 (excluding bonuses) and a clerkship salary was around $50,000 with an expected bonus of $50,000. That gap has widened significantly. Starting salaries are now $225,000 (excluding bonuses) and a clerkship salary is around $65,000 with an expected bonus of $75,000 (potentially more for multiple clerkships).

But a graduate who clerks for three judges enters as fourth-year associate… essentially has the litigation skills of a first-year associate and a long ramp-up. ...

It would be interesting if NALP or some other researcher could track future longitudinal outcomes of judicial clerks. Does stacking clerkships reduce the likelihood that someone remains in “big law” or makes partner? ...

But law students do need to ask hard questions. The first is, what’s the value of the clerkship? It is valuable, to be sure. It is the experience, the credential, seeing what goes on inside a judicial chambers. But students might want to ask hard questions about the value add of a second or third clerkship. ...

[W]e may be at a breaking point for the current system. Students should be asking hard questions, the kind of questions that didn’t need to happen a generation ago. Students can—and sometimes should—say no to certain clerkships. There are material tradeoffs worth considering. (And for more, see former Judge Gregg Costa, here.) But they are hard tradeoffs, and ones not always intuitive to law students barely a semester into law school.

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