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Home , David Lat, Dolores Sloviter, Dorothy Wright Nelson, Feeder judge, Guido Calabresi, Jay Bybee

60 Vol. 105 No. 1

It is a truth universally acknowledged, that a law student in possession of a desire to become a law professor, must be in want of

a judicial clerkship.† Judicature 61

Academic Feeder Judges Are clerkships the key to academia?

by Howard M. Wasserman*

he legal community is law schools, many of Given the duce” law professors familiar with “feeder whom gravitate towards from the ranks of their judges” — federal lower- law teaching. Clerkships intimate (if former clerks. court (primarily court of launch former clerks not essential) appeals) judges who have into other legal positions connection Methodology Ta substantial number of law clerks go (including government, This study identifies law on to clerk for justices on the Supreme private practice, and between faculty as of fall 2019 Court of the .1 During further clerkships) and clerkships and with judicial clerkships the Burger Court (1969–1986), having short-term pre-tenure legal academia, in their background — at least one prior clerkship became teaching positions (such what I call “academic a de facto prerequisite to a Supreme as fellowships and the time is former clerks.” It relies Court clerkship. This created a net- Visiting Assistant Prof- right to identify on self-reporting — fac- work effect in which certain appellate essorships5) that provide “academic ulty presentation to judges became known for placing further experience and the world about past clerks with the justices, increasing credentials for a perma- feeder judges” clerkships through bio- the number of law students applying nent teaching job. And for whom graphies and publicly to clerk for those feeder judges with clerkships accord a mark significant available curricula vitae the hope of securing a subsequent of prestige that appeals numbers of on their law school clerkship on the High Court.2 During to current faculty mem- websites. This method- the Rehnquist Court (1986–2004), ten bers — who clerked current U.S. ology risks missing lower-court judges placed more than early in their careers law professors some academic former 20 clerks, with a second-tier of 16 — in identifying prom- clerked at the clerks who choose not judges placing eight or more.3 From ising new colleagues, to include the clerk- 2004 (one year prior to the start of the especially from among beginning of ship experience in their Roberts Court) through 2018, 11 low- candidates who clerked their careers. online information or er-court judges produced 20 or more for “their” judges. who do not post their Supreme Court clerks and another 20 Given the intimate CVs. But I expect that lower-court judges produced eight or (if not essential) connection between most professors provide this informa- more Supreme Court clerks.4 clerkships and legal academia, the time tion in at least one of those spaces. While not as formally necessary to a is right to identify “academic feeder The analysis is limited to full- law-teaching position, a judicial clerk- judges” — the judges for whom sig- time permanent teaching, research, ship is one step in the common path to nificant numbers of current U.S. law and clinical faculty at American Bar the legal academy. Clerkships appeal professors clerked at the beginning of Association (ABA)-accredited, Asso- to high-achieving law students at top their careers and the judges who “pro- ciation of American Law Schools u 62 Vol. 105 No. 1

FIGURE 1: COURTS FIGURE 2: APPOINTING PRESIDENT

25 30 20 25 20 15 15 10 10 5 5 0 . 0

FORD (1) NIXON (9) TRUMAN (1) CARTER (26) KENNEDY (3) CLINTON (21) JOHNSON (9) REAGAN (21) 3D CIR. (8) 5TH CIR. (8) 1ST. CIR. (6) 2D CIR. (14) 4TH CIR. (5) 6TH CIR. (5) 7TH CIR. (3) 8TH CIR. (1) D.C. CIR. (12) . 9TH CIR. (21) 10TH CIR. (4) 11TH CIR. (4) DIST. CT. (11) G.H.W. BUSH (6)EISENHOWER (5)

(AALS)-member or AALS-fee-paying rent status (active, retired,8 senior,9 6. Fifty-one federal lower-court law schools as of the time of the resigned,10 or deceased); primary career judges, focusing on academic for- study. It includes tenured, untenured/ prior to appointment to the federal mer clerks who did not also clerk tenure-track, and untenured/non- bench (academy, government, private for SCOTUS. tenure-track contract faculty and practice, or state bench); number of lecturers. It does not include adjuncts academic former clerks; per-year aver- The link between judicial clerkship and other part-time faculty who are age (academic former clerks divided and academic job is less direct than not primarily academics. It also does by years on the bench); and rankings the link between lower-court clerk- not include short-term visitors and of the schools at which former clerks ship and SCOTUS clerkship. A SCOTUS fellows, many of whom are recent law teach.11 All biographical and histori- clerk obtains her position on the clerks occupying temporary entry- cal information about judges is drawn strength of being a clerk for a feeder level positions as a stepping-stone to from the ’s judge and that ’s recom- an academic career. And it does not online Biographical Directory of Article mendation, typically a direct line from include former law clerks teaching III Federal Judges, 1789-Present.12 From lower-court chambers to SCOTUS at non-U.S. law schools or working in this group, I created the following stud- chambers within one or two years of non-law academic disciplines. ies of former clerks:13 the first clerkship. Being a “Judge X According to the AALS, there were Clerk” or “Justice Y Clerk” helps secure 9,329 full-time law faculty in fall 1. One-hundred-two federal lower- an academic position, especially with 2019.6 Online biographies and posted court judges, most on courts of a strong recommendation from the CVs identified 3,641 full-time faculty appeals, with eight or more aca- jurist. But that position comes several with judicial clerking experience, rep- demic former clerks. years later, the clerkship and recom- resenting more than 35 percent of 2. Fifty-one federal district judges mendation forming one piece of the full-time faculty. Approximately 200 with three or more academic hiring faculty’s prediction of whether faculty members identified the courts former clerks. an entry-level faculty candidate is on which they clerked but not the 3. Fifty-two federal lower-court likely to be a productive scholar and judges. This left more than 3,400 cur- judges appointed since 1995 with effective teacher. rent full-time faculty who clerked for three or more academic former The numbers thus tell a correlative at least one identified judge. clerks. rather than causal story — who pro- From these 3,400 faculty members, 4. Eighteen state-court judges with fessors happen to have clerked for. In I identified 325 federal lower-court two or more academic former labeling these judges academic “feed- judges with at least three former clerks clerks. ers,” I adopt the familiar parlance as an in teaching. For the judges in that group, 5. Current and former justices of analogy. While I occasionally describe I gathered data on court, appointing the Supreme Court of the United judges as “producing” or “placing” aca- president, and years of service;7 cur- States. demics, it is shorthand to connect the Judicature 63

FIGURE 3: PRIOR POSITION leaving less room for distinctions. Figure 1. Courts. The Ninth Circuit’s Table 1 (see appendix online at judica- lead is unsurprising, as it is the largest 50 ture.duke.edu) presents the top 102 regional circuit, with 29 approved active 40 lower-court judges. judgeships — more judges means more The clear “winner” is , clerks, which means more future aca- 30 senior judge on the Second Circuit, demics from among those clerks. The 20 appointed by President in D.C. Circuit is regarded as the “junior 10 1994 following a long career as a lead- Supreme Court” and the most presti- 15 ing legal theorist and as a professor and gious circuit, from which we would . 0 dean at . Forty-three expect legal academics to emerge. The

FORD (1) former Calabresi clerks are in the legal circuits represented expands going NIXON (9) TRUMAN (1) CARTER (26) KENNEDY (3) CLINTON (21) JOHNSON (9) REAGAN (21) PRACTICE (47) academy, 27 at top-25 law schools. down the list of judges. ACADEMIC (21) G.H.W. BUSH (6)EISENHOWER (5) STATE COURT (11) GOVERNMENT (23) Calabresi leads a clear top seven Figure 2. Appointing President. In with 20 or more academic for- 1978, Congress enacted the Omnibus judge to her former clerks and the law mer clerks. Joining him are Stephen Judgeship Act,16 creating 152 new professor to her former judge. It does Reinhardt (Ninth Circuit, died in Article III judgeships, which President not suggest that judges “feed” law 2018), Stephen Williams (D.C. Circuit, filled during the follow- faculties as they “feed” SCOTUS. Nor died in 2020), Dorothy Nelson (Ninth ing two years of his term. Many judges does it suggest the judge “got” the Circuit, senior judge), on the list were appointed in that two- former clerk an academic job, as she (Seventh Circuit, re- year span; many remain might have “gotten” the former clerk a tired in 2017), Harry on the bench or pro- later, higher clerkship, often with one Edwards (D.C. Circuit, The clear duced substantial num- phone call. senior judge), and “winner” is Guido bers of academic former This study offers a snapshot of judges (D.C. Cir- Calabresi, senior clerks prior to leaving and their academic former clerks cuit, retired in 1999, the bench. serving on U.S. law faculties as of fall died in 2019). Ninety- judge on the Figure 3. Prior Position. 2019, one point in time. This study one of the 102 served Second Circuit, Five of the top seven performed 25 years ago would have on the courts of appointed by feeder judges were aca- produced different results; this study appeals. Of the 11 demics before joining repeated 25 years hence will produce district judges, the President Bill the bench — Calabresi different results. Nevertheless, we can highest ranked are Clinton in 1994 at Yale, Williams at learn something from this snapshot of Jack Weinstein (East- following a University of Colorado, the courts and the academy — telling ern District of New Nelson at University us where we were, where we are, and York, senior judge),14 long career as of Southern , where we might go. with 14 academic a leading legal Posner at The Univers- former clerks, and theorist and as ity of Chicago, and I. ALL LOWER-COURT JUDGES Edwards at University The core study examines federal low- (Northern District of a professor and of Michigan and at er-court judges, who represent the California, retired in dean at Yale Law Harvard. Two of the top main academic feeders. I identified 2012) and Louis Pollak School. Forty- district judges joined 325 judges with at least three aca- (Eastern District of three former the bench from the demic former clerks. From that, I , died in academy — Weinstein focus on a top group of 102 judges 2012), each with 13. Calabresi clerks (Columbia) and Pollak with at least eight academic former Figures 1–3 (above are in the legal (Yale and Penn). clerks. This excludes 223 judges, two- and previous page) academy, 27 This top group thirds of those studied. This illustrates illustrate biographical includes 22 women, the bunching among judges at lower information for these at top-25 law five , numbers of academic former clerks, top 102 judges. schools. and two Hispanics. u 64 Vol. 105 No. 1

Fifty-four remain on the bench, 17 on FIGURE 4: APPOINTING PRESIDENT FIGURE 5: PRIOR POSITION active status. 30 Frequency measures the number of 20 academic former clerks per year on the 25 15 bench; this can be framed as how often 20 a former clerk enters teaching or as 10 15 the number of clerks per judicial term 10 5 who enter teaching. Unsurprisingly, 5 0 0 Calabresi leads, with 1.68 academic . former clerks per year on the bench,

FORD (2) meaning an average of more than 1.5 NIXON (5) CARTER (18) TRUMAN (1) REAGAN (4) CLINTON (8) KENNEDY (2) Calabresi clerks from each term has JOHNSON (9) ACADEMIC (4) PRACTICE (30) STATE COURT (8) G.H.W. BUSH (1)EISENHOWER (1) entered teaching. Reinhardt, Williams, GOVERNMENT (10) Nelson, Posner, Wald, and William Norris (Ninth Circuit, retired in 1997) itate towards the perceived greater House for 12 years following the elec- are at or a bit below one clerk per term. prestige of appellate clerkships, tion of in 1980. By the (D.C. Circuit, retired in including with the hope (sometimes time Bill Clinton entered the White 1994) stands at .8, with 12 academic for- realized, usually not) of landing a House in 1993, many judges in this mer clerks in 15 years on the bench.17 Supreme Court clerkship. But many group were too old to be politically ben- Seventeen judges are at or above .5 per law professors clerked on the federal eficial as court of appeals appointees.18 term — that is, an average of one-half trial courts, either alone or in addition Figure 5. Prior Position. Most district clerk per term entered teaching, mean- to the court of appeals. Some court of judges came from private practice. ing one academic from every two years appeals judges prefer prior clerking Four came from the legal academy: of law clerks. experience, hiring their clerks from Weinstein taught at Columbia; Pollak The judges with the most academic current trial-court clerkships rather taught and was dean at Yale and Penn; former clerks also have the greatest than from law school. Thelton Henderson (Central District distribution of academic former clerks The top 102 judges with eight or more of California, senior judge,) taught at at top-tier law schools. The top seven academic former clerks, described in Stanford and Golden Gate University; judges have 60–75 percent of their aca- Part I and Table 1 (see tables in appendix and Israel Glasser (Eastern District of demic former clerks at top-25 schools online at judicature.duke.edu), include , senior judge) was a faculty and a higher percentage at top-50 11 district judges. Part II and Table 2 member and dean at Law schools. The distribution broadens as present 51 judges who spent their School. we move down the list, with smaller careers on the federal district courts Thirteen of the 51 judges are women percentages of former clerks at top- and who have four or more academic and three are African American. Four- 25 schools. But most judges on the list former clerks. teen remain on the bench, two on have approximately half of their aca- Figures 4–6 (above and at right) illus- active status. demic former clerks within the top-50 trate biographical information for More than half the judges cluster schools and a substantial majority these 51 district judges. in five districts — Southern District of within the top-100 schools, reflecting Figure 4. Appointing President. The New York, which includes the value of the clerkship, especially a partisan skew is more noticeable with (13); Northern District of California, federal appellate clerkship, as an aca- district judges. The substantial num- which includes (6); demic credential. ber of Carter appointees illustrates an Eastern District of New York, which interesting point. Many Carter appoin- includes Brooklyn (5); Eastern District II. FEDERAL DISTRICT JUDGES tees served more than 30 years on the of Pennsylvania, which includes The vast majority of academic feeder district courts. Some might have been (5); and District of judges serve on federal courts of considered for elevation to the court Massachusetts (5). appeals. Many law professors were top of appeals by a Democratic president, Academic former district clerks are students at top law schools, who grav- but Democrats were out of the White broadly distributed across groups of Judicature 65

FIGURE 6: COURTS FIGURE 7: APPOINTING FIGURE 8: PRIOR POSITION PRESIDENT 12 30 10 25 20 8 15 6 10 4 5 2 0 0 DEMOCRAT REPUBLICAN CLINTON (42) BUSH (9) ACADEMIC (4) PRACTICE (30) ACADEMIC (5) PRACTICE (27) STATE COURT (8) 2D CIR. (6) 3D CIR. (4) D.C. CIR. (2) 1ST. CIR. (2) 4TH CIR. (1) 5TH CIR. (2) 6TH CIR. (5) 7TH CIR. (1) 8TH CIR. (1) FED. CIR. (1) OBAMA (1) GOVERNMENT (9) STATE COURT (11) GOVERNMENT (10) 9TH CIR. (12) 10TH CIR. (4) DIST. CT. (11)

law schools. One outlier is Kimba Wood all provide legal experience, cre- the first three years of Trump appoint- (Southern District of New York, senior dentials, and time to prepare for ments. It extends to judges with three judge): All nine academic former clerks permanent academic positions, espe- or more academic former clerks, teach at top-50 schools, eight in the top cially by publishing and teaching. accounting for bunching within cat- 25.19 Eight of Patel’s 13 academic for- Recent appointees have fewer for- egories while providing a sufficient mer clerks teach at top-25 schools. mer clerks and less time for those sample of judges to compensate for the former clerks to complete the multi- lag between clerkship and academia. III. FEDERAL JUDGES year path from clerkship to law faculty, This establishes a group of judges who APPOINTED SINCE 1995 meaning fewer opportunities to pro- have been on the bench long enough to Unsurprisingly, the raw numbers duce academic former clerks. Former produce significant numbers of former skew towards longer-serving judges. clerks for early appoin- clerks and academic former clerks and A judge who has tees might begin who are likely to remain on the bench employed three to Unsurprisingly, hitting the aca- for another decade or more with time four law clerks every the raw numbers demic job market in to produce more former clerks and year for 35 years on the next few years, more academic former clerks. the bench produces skew towards while former clerks Table 3 (see appendix online at judi- more former clerks longer-serving for cature.duke.edu) shows 52 judges, and more former clerks judges. . . . Former appointees may be appointed since 1995, with three or who enter legal aca- several years away. more academic former clerks. Sixteen demia. In addition, a clerks for early This part examines appeared among the top-102 feeders permanent academic Barack Obama judges appointed in Part I and Table 1, while Calabresi, career often begins appointees might since 1995, a period appointed in 1994, missed the begin- five or more years fol- covering 25 years to ning of this window by one year. lowing completion of begin hitting the when this study was Figure 6. Courts. The Ninth Circuit the clerkship. Former academic job written, offering a continues to lead the list with 12 clerks take other clerk- market in the picture of academic judges, followed by the Second ships (potentially on the former clerks from Circuit with six. But the distribution Supreme Court), enter next few years, relatively newer is broader within this smaller group. government service while former judges. This covers The Sixth Circuit emerges with five or private practice, clerks for Donald all George W. Bush judges, including , pursue further grad- Trump appointees and Obama appoint- a Clinton appointee with ten academic uate education,20 or ments, the last five former clerks, and , a take short-term fellow- may be several years of Clinton George W. Bush appointee and long- ships or visitorships;21 years away. appointments, and list potential Republican SCOTUS u 66 Vol. 105 No. 1

appointee, with four. Eleven district Sixteen judges in Among current ing remains steady judges are in this mix, all in the range this group are women, over a judicial career. of 3–4 former clerks. three are African justices, Stephen But frequency might Figure 7. Appointing President. No American, and two are Breyer, a former accelerate as a judge Trump appointee has produced an aca- Hispanic. All but five law professor at serves longer, pro- demic, likely because none has been on remain on the bench, duces academic for- the bench long enough, and insufficient and 27 maintain active Harvard, has 24 mer clerks, and devel- time has lapsed since the end of any status; many should academic former ops a reputation for clerkship to begin an academic career. add to their totals in clerks. From having law clerks The most recent appointee on the list is the coming years and enter teaching, making (Second Circuit), a 2010 should be higher on there, however, her chambers attrac- Obama appointee, with four academic the overall list 20 years the drop on tive to clerks with former clerks. Late-Clinton appointees from now. The lower the current academic ambitions. have served longer than Bush appoin- end of this group again Court is steep, If frequency increases tees, offering more time for former bunches — ten recent over time (something clerks to land teaching jobs. appointees have four to Clarence this study does not Figure 8. Prior Position. William academic former clerks Thomas’s 13 measure), numbers for Fletcher (Ninth Circuit) taught at and 18 have three. The (in 28 years on some judges could University of California-Berkeley; distribution across rise higher. Robert Katzmann (Second Circuit, classes of law schools the Court, a rate Two judges — Robert senior judge,) taught at Georgetown remains broad, with a of less than one Sack (Second Circuit, University; Moore taught at Case smaller percentage of academic for senior judge), and Western Reserve University; academic former clerks Thomas Ambro (Third (Ninth Circuit, senior judge) taught at top-25 schools. every two terms Circuit) — project into at State University and Table 4 (available of law clerks). the coveted 20–30 University of -Las Vegas; and in an appendix online range.23 Five others — Michael McConnell (Tenth Circuit, at judicature.duke.edu) A. Wallace Tashima resigned in 2009) taught at University offers a different (Ninth Circuit, senior of Chicago and University of Utah. way to represent academic feeders judge), (First Circuit, These five former academics repre- among newer judges — projecting senior judge), M. Margaret McKeown sent 9.6 percent of the 52 judges on the from current rate of placement after 25 (Ninth Cir-cuit), Bybee, and Lohier — post-1995 list. By contrast, 20 percent years or less on the bench to a 35-year project into the upper teens. Seven of the top-102 overall judges in Table judicial career. Thirty-five years rep- judges who did not make the (admit- 1 joined the bench from the academy, resents a reasonable benchmark. It is tedly arbitrary) eight-clerk cut in including five of the top seven and ten close to the median time on the bench Table 1 would exceed eight in 35 years, of the top 30. The dramatic reduction for the top-30 judges (36 years) and the five reaching into double digits — may indicate a change in the path from median time on the bench for the top (Ninth Circuit), Julio the academy to the bench. Presidents seven (37 years). The 60 judges in Table I Fuentes (Third Circuit, senior judge), are appointing fewer judges from the with 11 or more academic former clerks Chester Straub (Second Circuit, senior academy. Alternatively, the former served (or continue to serve) judicial judge), Smith (Ninth Circuit), academics who reached the bench inter- careers of between 35 and 40 years. and Lohier. sperse government service with their The 35-year benchmark assumes Several judges in this group could academic appointments. For exam- similarities of age, age at appointment, represent the next wave of academic ple, prior to his 2003 appointment to interest, health, and circumstances, feeder judges. Lohier has four academic the Ninth Circuit, Bybee worked in the although variance will affect length former clerks in a decade on the bench. executive branch for both Presidents of service and numbers of academic At that rate of .44 academic clerks per Bush, including as head of the Office of former clerks. It also assumes that term, he should reach ten clerks in Legal Counsel for George W. Bush.22 frequency of clerks entering teach- another 14 years, meaning by his quar- Judicature 67

ter-century mark on the bench, and mer clerks, 11 with eight or more, two before joining the bench, who died at least 15 clerks in a 35-year career. with 13, and one with 14. in September 2020 — has 29 former Notably, Lohier turns 56 in 2021, so a clerks in teaching. 40-to-45-year judicial career (and 20 IV. STATE COURTS Among current justices, Stephen academic former clerks) is not out of Table 5 shows 18 state-court judges (all Breyer, a former law professor at the question. Bybee’s eight in 16 years but one on the state’s highest court) Harvard, has 24 academic former projects to 17 in 35 years. Sutton (Sixth with two or more academic former clerks. From there, however, the Circuit, appointed in 2003) has four clerks. Matthew Tobriner (Supreme drop on the current Court is steep, to academic former clerks in 16 years, a Court of California, retired in 1982) ’s 13 (in 28 years on the rate of .25 per year, and a projection tops the list with eight. Court, a rate of less than one academic of eight by 35 years; Jennifer Walker The breakdown reflects the per- for every two terms of law clerks), and Elrod (Fifth Circuit, appointed in 2007) ceived decreased prestige of state the remaining justices in single digits. has three in 12 years, the same .25 rate, courts and thus of state-court clerk- Because these are raw numbers, and the same projection of eight. Like ships as a path to academia. Of the 18 time on the Court matters. Other than Lohier, Elrod is in her early 50s and jurists, only Denise Johnson (Supreme Thomas and Breyer, the current jus- a 45-year judicial career is possible, Court of Vermont, appointed in 1990), tices have served for 15 or fewer years. which would project to more than ten John Broderick (Supreme Court of , appointed in 2009, academic former clerks. New Hampshire, appointed in 1995), has nine academic former clerks,25 McConnell offers an interesting and Roderick Ireland (Supreme Judicial triple and , what-if scenario. He was a leading Court of Massachusetts, appointed in both appointed four years earlier. constitutional law and law-and- 1997) joined their respective courts Elena Kagan, a former professor religion scholar in a teaching career at post-1990. Only six of 18 remained on at University of Chicago and dean University of Chicago and University their respective courts post-2000, and at Harvard, appointed in 2010, has of Utah. He was appointed to the none remains in active service. the same number of academic for- Tenth Circuit in 2002 by George H.W. mer clerks as Roberts and Alito. Neil Bush but resigned in 2009 to join the V. SCOTUS EFFECTS Gorsuch (appointed by President Trump Stanford law faculty. In less than seven A Supreme Court clerkship offers a tra- in 2017), (appointed years on the bench, McConnell pro- ditional and unique credential and path in 2018), and Amy Coney Barrett duced six academic former clerks, half to law teaching, particularly at elite (appointed in 2020) have not been on at top-25 schools, a frequency of .86 schools.24 This part considers the effect the Court long enough to have clerks academics per year, almost one clerk of Supreme Court clerkships on aca- enter teaching, for the same reasons per term entering teaching. Over a demic placement. as many lower-court judges discussed 35-year career, this would have pro- in Part III.26 Stephanie Barclay did take jected to more than 30 academic former A. Supreme Court Clerks in Academia a leave from her faculty position at clerks, numbers similar to Williams, Table 6 shows academic former clerks , a top-50 Posner, and Dorothy Nelson near the for current justices and Table 7 shows law school, to clerk for Gorsuch during top of the overall feeder group. academic former clerks for former October Term 2019.27 A final notable piece is the relative justices. Both tables (see appendix A notable-but-unsurprising fact is paucity of more-recent district-court online at judicature.duke.edu) show the that a significant percentage of aca- appointees. Of the 11 district judges breakdown by the U.S. News rankings demic former Supreme Court clerks, in Tables 3 and 4, none has more than of the law schools at which former regardless of overall number of place- three academic former clerks. Five clerks teach. ments for that justice, land at top-25 project to five or more academic for- More than 30 former clerks for schools. All three of Kagan’s academic mer clerks in 35-year careers. This each of David Souter, John Paul former clerks and two of Roberts’s contrasts with the larger list of 51 Stevens, Sandra Day O’Connor, and academic former clerks teach at top- district judges in Part II and Table 2; remain on law 25 schools, while eight of Sotomayor’s it includes longer-serving judges: 24 faculties. — a law nine teach in the top 50. judges with six or more academic for- professor at Rutgers and Columbia u 68 Vol. 105 No. 1

B. Non-SCOTUS Clerks in Academia 1, isolating numbers of academic for- mer Wright clerks remaining in law The primary focus of this study has mer clerks for whom the lower-court teaching, ten clerked on SCOTUS. been identifying the academic feed- clerkship represented the highest ers from among lower-court judges. clerking credential (or one of several VI. JUDICIAL SNAPSHOT: As an academic candidate, a former highest clerking credentials). CONCLUSIONS AND SCOTUS clerk is viewed less as a Calabresi remains atop the list, based LIMITATIONS “Court of Appeals Judge X clerk” than on pure numbers; removing 15 SCOTUS The question is what to do with this as a “Justice Y clerk.” Or she is viewed clerks, he has produced nearly 30 aca- information or if it tells us anything. as both. Either way, the High Court demic former clerks. Dorothy Nelson, This part offers several descriptive and clerkship does some of the work in Reinhardt, and Williams remain in normative points, while recognizing establishing the candidate’s elite aca- the top four. Of the remaining judges some limitations on the study. demic credentials. It also confounds at the top of Table 1, Posner drops to whether the lower-court judge serves eighth (from 28 to 16 academic for- A. Not Causal or Advisory, as academic feeder or whether the mer clerks), Wald to 23rd (20 to 12); but Correlative lower-court judge serves as SCOTUS and Edwards to 26th (23 to 11). SCOTUS It is facile to say these results prove feeder with the SCOTUS clerkship clerks represent more than half of aca- that budding academics should clerk serving as the academic feeder. demic former clerks for several judges for Guido Calabresi or Dorothy Nelson The lower-court judges identified near the top of Table 1. David Tatel (D.C. or Harry Edwards if given the oppor- as academic feeders overlap with the Circuit) drops from 19 academic for- tunity, because doing so will lead to a lower-court judges recognized as mer clerks to nine; J. Harvie Wilkinson great career in law teaching. A budding SCOTUS feeders. Of Todd Peppers’s (Fourth Circuit) from 18 to seven; anything in the legal profession should top SCOTUS feeders for 1986–2004, Pierre Leval (Second Circuit, senior clerk for Guido Calabresi or Dorothy 20 of the top 28 have at least eight judge) from 18 to 11; Nelson or Harry Edwards if given the academic former clerks.28 Of Artemus (First Circuit, senior judge) from 16 to opportunity, because doing so will lead Ward’s and David Weiden’s top SCOTUS seven; and Garland from 15 to eight. to a great career in law. Nor do I expect feeders for 1962–2002, eight of the top Each judge is (or was, in Garland’s case) a clerkship applicant to choose between ten remain in the top 102 for academ- recognized SCOTUS feeders, so much Judge X and Judge Y based on these ics, including 15 of the top 24 judges of their academic feeding overlaps numbers, although the information by frequency.29 Of the 11 lower-court with their SCOTUS feeding. may be of interest to the judges and to judges who have placed 20 or more Meanwhile, Judith Rogers (D.C. potential clerks with academic ambi- clerks on SCOTUS since 2004, seven Circuit), (Third Circuit, tions. Nor is this an attempt at a causal have ten or more academic former senior judge), James Browning (Ninth argument — the clerkship is not a prox- clerks.30 Of the 20 lower-court judges Circuit, died in 2012), Damon Keith imate cause for a person “getting” an who have placed between eight and (Sixth Circuit, died in 2019), John academic job. These numbers instead 18 clerks on SCOTUS, nine have eight Noonan (Ninth Circuit, died in 2017), reveal a correlation between the clerk- or more former clerks in teaching.31 John Walker (Second Circuit, senior ing credential and the academic job and Using similar data, Adam Feldman judge), and Jane Roth (Third Circuit, between particular judges and clerks identified ten “most central” judges senior judge) have high numbers of interested in law teaching. in producing Supreme Court clerks; academic former clerks, none of whom This is not to minimize the impor- seven appear in the top 102 (Table 1) clerked for SCOTUS. Betty Fletcher tance of the clerkship or the name and an eighth, Sutton, is among the (Ninth Circuit, senior judge, died in recognition of the judge in obtaining leaders for post-1995 appointees and 2012), Jon Newman (Second Circuit, teaching jobs, which remain critical in 35-year-projection (Tables 3 and 4).32 senior judge), and Weinstein each had pieces of a teaching candidate’s CV. Table 8 (see appendix online at one former clerk pass through the High Many judges serve as important, often judicature.duke.edu) identifies “non- Court. At the lower end, the extreme personal, references for entry-level SCOTUS-feeder judges” with 11 or is J. Skelly Wright (D.C. Circuit, died in candidates. Being a “Judge X Clerk” more academic former clerks. It reor- 1988), a known feeder judge during the or “Justice Y Clerk,” perhaps with a ders the lower-court judges in Table Warren and Burger Courts.33 Of 11 for- strong recommendation from the Judicature 69

jurist, helps secure an Fewer modern Although their pay is significant credentials for a position in academic position. substantial compared the modern law school. Of course, such Clerking and law faculty members with other academics pre-tenure-track programs appear teaching connect in move directly and most occupations, to hire potential academics based on natural ways. Both from chambers law professors earn less law school, academic performance, attract high-achieving than their counterparts and clerkship; that is, the credentials law students from (especially in private practice. that corralled a tenure-track job two top law schools. Both lower-court But the modern generations ago now corral the fel- demand people per- chambers) to legal academy and lowship that corrals the tenure-track sonally and financially the modern academic job.40 The clerkship remains vital, but able to relocate for tenure-track hiring process attenu- one step removed — rather than the short-term jobs, per- faculty positions. ate causal connections clerkship helping a candidate obtain a haps multiple times. Candidates among judge, clerkship, tenure-track teaching job, the clerkship Someone may land and academic position. helps her obtain the fellowship or VAP, a one- or two-year seek further The nature of aca- which helps her obtain the teaching clerkship in a differ- education demic hiring and the job. This formalizes the several-year ent state from where or teaching requirements for teach- gap between finishing a clerkship and she attended law experience and ing jobs have changed. entering teaching, given the need to school (or plans to Two or three genera- spend time in pre-faculty positions. practice) or multiple time to engage tions ago, the clerkship The Great Recession of 2008 appears clerkships in different in scholarly was the essential cre- to have exacerbated the disconnect states; someone may writing and dential, and a call from between clerkship and teaching. The move multiple times the judge or justice to economic downturn slowed faculty in two or three years publishing the law-school dean was hiring, reducing the number of aca- for different clerking through VAP the ticket to the teach- demic opportunities for recent clerks opportunities. An aca- and fellowship ing job. Louis Brandeis and for clerks from recently appointed demic candidate has favored clerks whom judges. According to data collected by least control over programs; all he believed would be- the legal-academic blog PrawfsBlawg, where she lands a provide more come law teachers.36 It the number of self-reported new fac- job, and a professor significant was a direct path from ulty hires reached 167 in 2008 and may teach or visit34 at dropped from 155 in 2011 to 62 in 2017.41 many schools in dif- credentials to Brandeis Chambers A different study showed a reduction ferent locations over for a position to faculty office with a of more than 1,400 full-time faculty her career. The recent in the modern call or letter from Felix positions between 2010 and 2016,42 rise of VAPs, fel- law school. Frankfurter (then on following a decade (1998–2008) during lowships, and other the Harvard faculty) which law faculties grew by more than entry-level teaching about the law student to 40 percent.43 programs35 adds a layer of short-term, the Justice and from the Justice about New hires rose to 82 in 2019 and 88 in geographically shifting work on the the to the dean of the hiring 2020 but remain about half of new hires academic career path. A potential aca- law school.37 for each year in the late 2000s.44 And demic might attend law school in one Fewer modern faculty members move any limited recovery in academic hir- place, clerk for one year in another directly from chambers (especially ing may be slowed — if not halted and place, move to a third place for a two- lower-court chambers) to tenure-track reversed — by the unknown but poten- year fellowship, then move elsewhere faculty positions. Candidates seek fur- tially catastrophic economic effects of when she lands a permanent fac- ther education38 or teaching experience COVID-19 on legal education,45 which ulty position. Finally, clerking and law and time to engage in scholarly writing may include a new round of hiring teaching require someone personally and publishing through VAP and fel- freezes and faculty downsizing, reduc- and financially able to earn less money. lowship programs;39 all provide more ing available academic opportunities. u 70 Vol. 105 No. 1

This change in the hiring landscape specializing in a par- Sixty of the top with close to a quarter colors the study in two respects. The ticular type of prestige or more of clerks for high numbers of academic former legal work. 102 judges with each justice, regardless clerks from top judges reflect the times eight or more of appointing president in which their former clerks entered B. Political Imbalance former clerks or ideology, enter- the legal academy. It was easier for The political imbalance ing legal academia, Calabresi or Nelson or Posner to pro- among feeder judges is in teaching are including 43 percent of duce academic former clerks in 2008, striking. Sixty of the Democratic Marshall clerks.48 when 167 new professors were hired top 102 judges with appointees. But William Nelson in the middle of a decade of faculty eight or more former and his co-authors expansion. Lohier’s four academic for- clerks in teaching are Thirty-nine of 51 argue that the mer clerks in a decade or Bybee’s seven Democratic appoin- district judges SCOTUS-to-academia in 16 years are stronger than raw num- tees. Thirty-nine of 51 with four or path changed on the bers suggest, given that their former district judges with Rehnquist Court, spec- clerks entered a market in which half four or more academic more academic ifically the Rehnquist as many teaching jobs were to be had. former clerks are former clerks Court as constituted Presuming faculty hiring never returns Democratic appoin- are Democratic from 1994–2005.49 Of to pre-2011 numbers, newer judges, tees. Forty-three of 52 appointees. the five conservative- even those whose former clerks seek recent (1995–present) leaning justices, three to enter teaching, may never reach judges are Democratic had less than 20 similar placement levels. The new appointees. percent of for- academic feeder judge may produce Comparing two recent appoin- mer clerks enter teaching.50 Only academic former clerks in the teens tees illustrates the imbalance. Lohier — a faculty member at rather than 20s or 30s. Fewer aca- (Obama appointee to the Second University of Chicago prior to demic jobs and more post-clerkship Circuit in 2010) and Elrod (George W. joining the federal bench — pro- requirements mean longer clerkship- Bush appointee to the Fifth Circuit duced academics at a rate of approxi- to-faculty lags, lower numbers, and in 2007) are close in age and were mately 25 percent, which would have more time on the bench needed to pro- appointed three years apart. As of this placed him on the lower end of the duce a large group of former clerks and study, Lohier has one more academic Warren and Burger Courts.51 And thus academic former clerks. former clerk in three fewer years on Scalia famously hired one “counter- Finally, the changing nature of law the bench and more than three times clerk” each term — a clerk who did practice perhaps affects academic hir- the annual rate. Lohier projects to 15 not share his conservative/origi- ing on the money-and-geography axis. academic former clerks in 35 years, nalist/textualist and Many law firms maintain dedicated while Elrod projects to eight or nine in would check the Justice’s failure to Supreme Court and appellate practices, the same period. adhere to his methodology52 — many creating a specialized Supreme Court That political imbalance shows of whom entered law teaching.53 and appellate bar.46 This new practice among former SCOTUS clerks. Among By contrast, O’Connor and the four area offers former law clerks a place to the current justices with the most aca- liberal-leaning justices of the specialize in writing and speaking on demic former clerks (Breyer, Thomas, Rehnquist Court placed clerks at rates high-level constitutional and public- Sotomayor), two are Democratic similar to their predecessors, with law issues, an opportunity that a gener- appointees — and Breyer has more than Souter continuing Marshall’s tradition ation or two ago was available primarily twice the number as Thomas in three of almost 45 percent of former clerks to academics. A former federal clerk fewer years on the Court. Brandeis entering teaching.54 can engage in prestigious and desirable envisioned the Supreme Court clerk- There are benign explanations for “sexy” legal work while making law- ship as a path to law teaching when he this political imbalance. The creation firm money and living and working in developed the model in the 1920s and of new judgeships in 1978 presented her chosen major city. The academy is ’30s.47 The numbers backed that up Carter with an unusually large number no longer the sole or primary path to through the Warren and Burger Courts, of vacancies to fill between 1978 and Judicature 71

1980. Assuming a delay of five years attract similarly conservative clerks demic former clerks, and none projects from clerkship to teaching job, clerks who then seek academic positions, the to more than six over a 35-year career. for late-Clinton and early-Bush appoin- clerks’ success or failure in becoming In other words, fewer former dis- tees hit the teaching market during academic former clerks may suggest trict-court clerks are entering legal a decade of expanding faculties and something about hiring bias. academia. Many former district-court waves of faculty hiring, while late-Bush Two facts may confound that con- clerks on law faculties are on the back- and Obama appointees hit the teaching clusion. One is COVID-19’s unknown end of their careers and are not being market during a steep downturn in the long-term negative effects on faculty replaced by more recent clerks for cur- hiring market. hiring, with Trump-appointee for- rent district judges. A less benign explanation is that mer clerks entering an unfavorable job Perhaps district-judge placements are the imbalance demonstrates the market, similar to that of 2011–2017.61 the most direct victim of the decrease long-complained-of anti-conservative A second may be Trump’s status as an in faculty hiring. If, post-2008, 75 can- bias on law faculties and in law- outlier president — he was impeached didates get new teaching jobs each year faculty hiring.55 Party affiliation may twice and ended his term in office with- rather than 160, the relative “prestige” be an accurate indicator of judicial out acknowledging the election results of an appellate clerkship may explain ideology, and judges may hire ideo- or participating in the peaceful tran- schools hiring former appellate clerks, logically sympathetic clerks, whether sition of presidential administrations. with no positions remaining for for- because judges seek matching clerks But many Trump judicial appointees mer district-court clerks. In addition, or because prospective clerks seek were “traditional” Republican judges alternative paths to the academy per- matching judges.56 It is less clear how whom any Republican president would haps make former district clerks less ideological preferences shape these have appointed. That should be espe- appealing as candidates compared with practices on lower courts, especially cially true for the court of appeals a non-clerk candidate holding a Ph.D. or district courts.57 But the possibility of judges likely to attract budding aca- coming from an academic or public-in- an ideological link to a purportedly demics as law clerks. terest fellowship with publications and conservative judge (or justice) may some teaching experience. follow a purportedly conservative for- C. Changing Courts mer clerk into the academy, where 1. Federal lower-court judges 2. State court judges any hiring bias affects her chances at a The list of academic feeders among This trend is more pronounced with teaching job. lower-court judges skews towards state-court judges, with only 18 state- One indicator in the coming court of appeals judges, with hir- court judges having two or more former decade may be the teaching-market ing schools apparently viewing those clerks on current law faculties. And success of former clerks for Trump- clerkships as more prestigious and none of those 18 remains in active ser- appointed judges. Working with a those former clerks as more desirable vice. This is not to disparage state-court Republican-controlled Senate in his candidates. That skew is becoming judges or the law professors who began one term, President Trump appointed more pronounced. their careers on state supreme courts, 226 judges, including 54 appellate Part I found 11 district judges in the either years ago or more recently. But judges.58 Many were prominent, con- top-102 judges (with eight or more aca- it reflects the common perception of a servative, and ideological, selected demic former clerks). But none of those loss in prestige of state courts and the with the assistance of Leonard Leo 11 was appointed post-1990; the latest, conclusion by law graduates with eyes and the .59 They Kimba Wood, was appointed in 1988 toward teaching careers that federal include several successful legal aca- and she is the last remaining on the courts, at any level, represent a better demics, including bench. Of 51 district judges with three path to the academy. (Third Circuit), a faculty member at or more academic former clerks (Table Several considerations might explain the University of Pennsylvania; David 2), five were appointed post-1990 and the change as to state-court judges. Stras (Eighth Circuit), a faculty mem- 13 remain on the bench. The 52 recent There are more than 1,300 state ber at the University of Minnesota;60 (1995–present) appointees (Table 3) high- and intermediate-appellate- and Barrett, a faculty member at Notre include 11 district judges; all are at the court judges, compared with fewer Dame. If these conservative judges lower end of the group with three aca- than 900 Article III federal judges. u 72 Vol. 105 No. 1

State-court judges may Sack, Ambro, D. Where We Are and academy. Both numbers almost cer- enjoy shorter careers on Where We Are Going tainly were higher in 1985, when both the bench, as a majority of Bybee, This study remains were on the bench and large num- states impose mandatory Katzmann, a snapshot of the bers of their former clerks were in retirement by 70-to-75 Tashima, clerkship/academic the heart of their teaching careers. years of age.62 It becomes pipeline, capturing one Nine former clerks for impossible for one state- Lipez, moment in time — (Dwight Eisenhower appointee to the court judge to emerge McKeown, law faculties as of fall Second Circuit, died in 1986) remain as a feeder over a 35- or Fletcher, 2019. The names and in the academy, a number that would 40-year career. And a numbers of judges have been higher in 1985. Friendly was state judge who develops and Lohier and professors would known for hiring clerks from across such a reputation may find “project” have looked different the political spectrum, many of whom herself appointed to the close to or 25 years ago; they will became prominent legal scholars of all federal bench, from which look different if this ideological stripes.64 her clerks can follow the more than study is repeated 25 In a similar vein, if this study is easier and more common 20 academic years from now. repeated in 2055, far fewer former path to the legal academy. former clerks, The snapshot nature Calabresi, Posner, or Wald clerks will Of the 51 district judges in should they results from the reg- remain on law faculties. The question Part II and Table 2, 11 joined ular flow of clerks is whose former clerks will replace the federal bench from the continue at (who typically work in them. Eighteen of the judges in Table state bench, three since their current chambers for one year, 1 retain active status, including nine 1990. Of the 52 judges rates and two years at most), judges with 11 or more academic for- appointed since 1995 (Part judges, and law pro- mer clerks; their numbers and their III and Table 3) with three remain on the fessors. Judges join positions on this list should rise over or more clerks, ten joined bench for 35 or and leave the bench the coming decades. Based on Table the federal bench from the more years. and hire new batches 4, Sack, Ambro, Bybee, Katzmann, state bench. of three or four clerks Tashima, Lipez, McKeown, Fletcher, Another consideration each year; the longer and Lohier “project” close to or more is jurisdiction. State courts focus on a judge serves on the bench, the more than 20 academic former clerks, state law; law school curricula less clerks she hires and the more oppor- should they continue at their current so. Thirty-four states have adopted tunities to hire future academics. rates and remain on the bench for 35 the Uniform Bar Examination. The People join and leave law faculties each or more years. Uniform Commercial Code and other year. Academics should outlast their uniform laws can be used to teach judges — a 25-year-old who clerks for * state law courses (Contracts, Torts, a 60-year-old judge and embarks on Thanks to Francis Curiel (FIU ’21), Gabriel Diaz (FIU ’21), Chandler Lefevere (FIU ’21), Sandra Property) in a non-state-specific a 50-year academic career will be on Meija (FIU ’20), and Cecilia Torres-Toledo (FIU ’20) for research assistance. Thanks to the Honorable way. And scholars in these areas a law faculty long after her judge has Harry T. Edwards, Josh Blackman, Eric Carpenter, likely write on general princi- left the bench. Federal judges serve for Christine Chabot, Adam Levitin, Matthew Lister, Thomas Main, M,C. Mirow, Roger Michalski, ples in these uniform laws, not the many years, producing many former Charles “Rocky” Rhodes, David Schleicher, and specifics of one state. The state- clerks who remain in their teaching participants in faculty workshops at FIU and University of Pittsburgh for comments and specific clerkship on a state’s highest jobs for many years. suggestions, including new avenues of research court may be less appealing to a bud- Three long-ago examples illustrate exploration and new and corrected data. Thanks to the several federal judges who responded to ding academic or to a law-school hiring the point. Twelve former clerks for an early draft of the paper. † committee. Even if state constitutional David Bazelon (Harry Truman appoin- With apologies. Jane Austen, Pride and Prejudice (1813). law stages a comeback,63 constitutional tee to the D.C. Circuit, died in 1993) and law courses remain focused on the Con- 11 former clerks for J. Skelly Wright stitution of the United States and its (John Kennedy appointee to the same various amendments. court, died in 1988) remain in the legal Judicature 73

tent/uploads/2021/01/2020-Legal-Ed-at-a- tion on courts of appeals, particularly the Third HOWARD M. Glance.pdf. Circuit, creating a unique hybrid trial/appellate 7 WASSERMAN Many judges on the list were appointed to clerkship. the district court, then elevated to the court 19 A respected trial-court judge, Wood was Presi- is Associate Dean for of appeals, either by the same president or a dent Clinton’s choice for Attorney General, only successor. For simplicity and space, the table to have the nomination withdrawn when it was Research and Faculty lists the judge’s highest court of service and the revealed that Wood had employed an undocu- Development and president and year of the original appointment mented immigrant as her children’s nanny (at to the federal bench. For example, Judge Jane a time when it was legal to do so). See Stephen Professor of Law at Roth was appointed to the District of Delaware L. Carter, The Confirmation Mess: Cleaning Up the Florida International by President Reagan in 1985, then elevated to Federal Appointments Process 207 & n.3 (1994). the Third Circuit by President George H.W. Bush 20 Many law professors earn Ph.D.s in a discipline in University, where he teaches civil procedure, in 1991. On the table, she is listed as on the Third addition to their law degrees, either while in law evidence, federal courts, civil rights, and Circuit, but appointed by President Reagan, with school or following law school and clerking. Cf. service from 1985–present. Justin McCrary, Joy Milligan, & James Phillips, The First Amendment. He blogs at PrawfsBlawg, 8 A federal judge can “retire from the office” on Ph.D. Rises in American law Schools, 1960–2011: is the courts law section editor of JOTWELL, full salary under the “Rule of 80,” where age + What Does It Mean for Legal Education?, 65 J. years of service equal 80. 28 U.S.C. § 371(a), (c). Legal Educ. 543 (2016). Yale Law School offers and is a contributor at SCOTUSBlog. He 9 A judge who satisfies the requirements for a Ph.D. program in law, a research-focused clerked for Chief Judge James T. Giles of the retirement can assume “senior status,” retiring graduate degree that allows a transition from from “regular service” but retaining “the office.” J.D. and clerkship to teaching. https://law.yale. U.S. District Court for the Eastern District of Id. § 371(b)(1), (c). Marin K. Levy, The Promise of edu/studying-law-yale/degree-programs/gradu- Pennsylvania and Judge Jane R. Roth of the Senior Judges, 115 Nw. U. L. Rev. 1227, 1240 (2021). ate-programs/phd-program. This can create some uncertainty, because a 21 Hess, Schwartz, & Levit, supra note 5, at 698 & U.S. Court of Appeals for the Third Circuit. senior judge can cease doing judicial work while n.7; supra note 5. He is the author of Understanding Civil retaining the designation of senior status. The 22 Bybee gained notoriety for signing the legal Rights Litigation Federal Judicial Center biographies categorize memorandum authorizing “enhanced interro- (2018). a judge as retired only if she submits a letter gation techniques.” Keith A. Petty, Professional announcing retirement; otherwise, she is des- Responsibility Compliance and National Security ignated as “senior,” regardless of whether she Attorneys: Adopting the Normative Framework continues to perform judicial functions. of Internalized Legal Ethics, 2011 Utah L. Rev. 1 10 Artemus Ward & David L. Weiden, Sorcerers’ FJC categorizes a judge as “resigned” when she 1563, 1605–07; Jesselyn Raddack, Tortured Legal Apprentices: 100 Years of Law Clerks at the United leaves the bench prior to satisfying the Rule of 80. Ethics: The Role of the Government Advisor in the 11 olo ev States Supreme Court 107–08 (2006); Todd C. Rankings are based on U.S. News & World Report , 77 U. C . L. R . 1, 37 (2006). 23 Peppers, Courtiers of the Marble Palace: The Rise 2021 Law School Rankings, available at https:// (D.C. Circuit) would have and Influence of the Supreme Court Law Clerk 31–34 www.usnews.com/best-graduate-schools/top- topped this group, but he left the bench in 2021, (2006); Alexandra G. Hess, The Collapse of the law-schools/law-rankings. Schools are divided after less than 25 years, to become Attorney House That Ruth Built: The Impact of the Feeder into five brackets—Top-25, 26–50, 51–100, General under President Biden. This marked System on Female Judges and the Federal Judicia- 101–150, 151-and below. Garland’s second potential move off the D.C. 12 ry, 1970-2014, 24 Am. U. J. Gender Soc. Pol’y & L. 61 Fed. Jud. Ctr., https://www.fjc.gov/history/judges. Circuit. Five years before becoming Attorney (2015); William E. Nelson et al., The Liberal Tradi- 13 Eight tables containing this information are General, Garland was nominated by President tion of the Supreme Court Clerkship: Its Rise, Fall, available for viewing and download at the Obama to fill the Supreme Court seat vacated by the 2016 death of Antonin Scalia; the Repub- and Reincarnation?, 62 Vand. L. Rev. 1721, 1778–79 Judicature website (judicature.duke.edu) and can (2009); Brad Snyder, The Judicial Genealogy (and be viewed in conjunction with the article. Infor- lican-controlled Senate never acted on the Mythology) of John Roberts: Clerkships from Gray mation in print and online in this article, such as nomination, preserving the vacancy for the next to Brandeis to Friendly to Roberts, 71 St. L.J. a judge’s current status, was accurate as of press president. Jonathan H. Adler, The Senate Has No 1149, 1216 (2010). time, but may have changed. Constitutional Obligation to Consider Nominees, 2 24 Geo. Mason L. Rev. 15 (2016); Robin Bradley Ward & Weiden, supra note 1, at 76–85; Snyder, 14 Weinstein ceased performing judicial functions Kar & Jason Mazzone, The Garland Affair: What supra note 1, at 1216. in 2020. See Alan Feuer, A Legal Lion Lays Down 3 History and the Constitution Really Say About Peppers, supra note 1, at 33–34. His Gavel With a Ruling of ‘Love, Not Hate’, N.Y. President Obama’s Powers to Appoint a Replace- 4 Times, Feb. 17, 2020. But the FJC continues to These statistics were drawn from annual report- ment for Justice Scalia, 91 N.Y.U. L. Rev. Online 53 record his status as “senior judge.” See supra ing by Above the Law on clerks for the upcoming (2016). Supreme Court term dating to 2004. See, e.g., note 9. 24 15 Nelson et al., supra note 1, at 1757–58. , Supreme Court Hiring Watch, Above the See, e.g., Christopher J. Banks, The Politics of En 25 Eleven current full-time law teachers clerked Law (Jun. 18, 2019, 6:18 PM), https://abovethelaw. Banc Review in the “Mini Supreme Court”, 13 J.L. for Sotomayor in her six years on the Southern com/2019/06/supreme-court-clerk-hiring- & Pol. 377, 379 (1997). District of New York and 12 years on the Second watch-the-return-of-the-tiger-cub/. 16 Pub. L. No. 95-486, 92 Stat. 1629 (1978). 5 17 Circuit. Olyfunmilayo B. Arewa, Andrew P. Morriss, & Mikva left the bench after 15 years to serve as 26 Gorsuch produced three academics in a decade William D. Henderson, Enduring Hierarchies White House Counsel under President Clinton, on the Tenth Circuit and Kavanaugh three in 12 in American Legal Education, 89 Ind. L.J. 941, then went on to teach at the University of years on the D.C. Circuit. Barrett served on the 995–96 (2014); Gerald F. Hess, Michael Hunter Chicago. A 35-year judicial career might have Seventh Circuit for less than three years before Schwartz, & Nancy Levit, Fifty Ways to Promote placed him well into the 20s. Mikva’s figure her elevation, not enough time to produce any Teaching and Learning, 67 J. Legal Educ. 696, 698 of current academic former clerks does not & n.7 (2018); Lucinda Jesson, So You Want to Be academics. include Elena Kagan, who taught at Chicago and 27 a Law Professor, 59 J. Legal Educ. 450, 452–53 served as Dean at Harvard but left the academy BYU’s Law Professor Stephanie Barclay to clerk (2010); Jessica Erickson, Final Reflections on VAP/ to pursue other endeavors. for Justice , BYU Law News, https:// Fellowship Interview Series, PrawfsBlawg (Dec. 10, law.byu.edu/news/byu-laws-professor-stepha- 18 To give one example: Louis Pollak, appointed 2019), https://prawfsblawg.blogs.com/prawfs- nie-barclay-to-clerk-for-justice-neil-gorsuch. by President Carter to the district court at age 28 blawg/2019/12/final-reflections-on-vapfellow- eppers 56 in 1978, was 71 by the time President Clinton P , supra note 1, at 33–34. 29 ship-interview-series.html. Ward & Weiden, supra note 1, at 76–85. 6 took office in 1993. Pollak assumed senior status Legal Education at a Glance, Ass’n of Am. L. Schs. in 1991, took a reduced district court caseload, 30 Data based on Above the Law reporting of SCO- (Jan. 25, 2021), https://www.aals.org/wp-con- and spent 20 years regularly sitting by designa- TUS clerk hiring. See supra note 4. u 74 Vol. 105 No. 1

31 Data based on Above the Law reporting of SCO- blogs/law-admissions-lowdown/articles/the- N.Y.U. J.L. & Liberty 560, 565–66 (2019); but see TUS clerk hiring. See supra note 4. impact-of-the-coronavirus-on-legal-education. Michael Vitiello, Liberal Bias in the Legal Acad- 46 emy: Overstated and Undervalued, 77 Miss. L.J. 32 Adam Feldman, A Formula for Supreme Court Richard J. Lazarus, Advocacy Matters Before and Within the Supreme Court: Transforming the 507, 510–11 (2007). Clerkships? Harvard and Garland, Empirical SCO- 56 TUS, Aug. 10, 2016, https://empiricalscotus.com/ Court By Transforming the Bar, 96 Geo. L.J. 1487, Lawrence Baum, Hiring Supreme Court Law formula/. 1498–1501 (2008); Jeremy Pilaar, The Making of Clerks: Probing the Ideological Linkage Between 33 the Supreme Court Bar: How Business Created a Judges and Justices, 98 Marq. L. Rev. 333, 335 Peppers, supra note 1, at 32. 34 Solicitor General for the Private Sector, 117 Mich. (2014); Paul Horwitz, Clerking for Grown-Ups: A Tess Ryan-Wilkinson, On Visiting, Medium (Jan. L. Rev. Online 75, 75–76 (2018); Joseph W. Swan- Tribute to Judge Ed Carnes, 69 Ala. L. Rev. 663, 6, 2020), https://medium.com/@tesswr/on- son, Experience Matters: The Rise of a Supreme 673 (2018); but see Snyder, supra note 1, at 1210 visiting-585f1abdec2e. Court Bar and its Effect on Certiorari, 9 J. App. (describing practice of Second Circuit Judge 35 Arewa et al., supra note 5, at 995–96; Hess, Prac. & Process 175, 176–78 (2007). Henry Friendly, a conservative Republican, to Schwartz, & Levit, supra note 5, at 698 & n.7; 47 Nelson et al., supra note 1, at 1757–58. hire clerks from across the political spectrum). Jesson, supra note 5, at 452–53. 57 48 Nelson et al., supra note 1, at 1764–65. Baum, supra note 56, at 335; Horwitz, supra note 36 Nelson et al., supra note 1, at 1757–58; Snyder, 49 That nine-member Court served unchanged for 56, at 673. supra note 1, at 1162. 58 John Gramlich, How Trump compares with other 37 11 years and one month, the second-longest- Nelson et al., supra note 1, at 1757–58; Snyder, serving unchanged Court in history and the lon- recent presidents in appointing federal judges, supra note 1, at 1162. gest-serving since Congress set the Court’s size Pew Research Ctr.: FactLink (Jan. 21, 2021), https:// 38 See supra note 20. at nine justices in 1869. Howard M. Wasserman, www.pewresearch.org/fact-tank/2021/01/13/ 39 Arewa et al., supra note 5, at 995–96; Hess, New courts (Updated), PrawfsBlawg (Sept. 20, how-trump-compares-with-other-recent-pres- Schwartz, & Levit, supra note 5, at 698 & n.7; 2020), https://prawfsblawg.blogs.com/prawfs- idents-in-appointing-federal-judges/. 59 Jesson, supra note 5, at 452–53. blawg/2020/09/new-courts.html. Carl Tobias, President Donald Trump and Federal 50 40 Hess, Schwartz, & Levit, supra note 5, at 995–96. Nelson et al., supra note 1, at 1780–81. Bench Diversity, 74 Wash. & Lee L. Rev. Online 400, 41 51 411–12 (2018); Daniel Bush, Trump’s conservative Sarah Lawsky, Spring Reported Entry-Level Id. picks will impact courts for decades, PBS.org (Oct. Hiring Report 2020, PrawfsBlawg (May 15, 52 Ian Samuel, The Counter-Clerks of Justice Scalia, 25, 2019), https://www.pbs.org/newshour/pol- 2020), https://prawfsblawg.blogs.com/prawfs- 10 N.Y.U. J. of Law & Lib. 1, 2–3 (2016); Gil Seinfeld, itics/trumps-conservative-picks-will-impact- blawg/2020/05/spring-reported-entry-level- Reflections of a Counterclerk, 114 Mich. L. Rev. courts-for-decades. hiring-report-2020-1.html. 111, 113 (2016). Thanks to Christine Chabot for 60 42 Stras left teaching to serve on the Minnesota Benjamin A. Barton, Fixing Law Schools: From suggesting this point. Supreme Court before being appointed to the Collapse to the Trump Bump and Beyond 90 (2019); 53 Samuel, supra note 52, at 4–8. 54 federal court. Eric A. Chiappinelli, Just Like Pulling Teeth: How Nelson et al., supra note 1, at 1782. 61 Dental Education’s Crisis Shows the Way Forward 55 See supra note 45 and accompanying text. See, e.g., Adam Bonica, Adam Chilton, Kyle Roze- 62 for Law Schools, 48 Seton Hall L. Rev. 1, 10–11 William E. Raftery, Mandatory Retirement Ages, ma, & Maya Sen, The Legal Academy’s Ideological (2017). Nat’l Ctr. for State Cts. (2010), https://cdm16501. Uniformity, 47 J. Legal Stud. 1, 3 (2018); John O. 43 contentdm.oclc.org/digital/collection/judicial/ Barton, supra note 42, at 90. McGinnis, Matthew A. Schwartz & Benjamin 44 id/308. Lawsky, supra note 41. Tisdell, The Patterns and Implications of Political 63 45 Jeffrey S. Sutton, 51 Imperfect Solutions: States and Gabriel Kuris, The Impact of the Coronavirus on Contributions by Elite Law Schools, 94 Geo. L.J. the Making of Constitutional Law (2018). ews orld eport 1167, 1168–69 (2005); James C. Phillips, Political Legal Education, U.S. N & W R (Mar. 64 23, 2020), https://www.usnews.com/education/ Discrimination and Law Professor Hiring, 12 Snyder, supra note 1, at 1210.

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