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Academic Feeder Judges Are Clerkships the Key to Academia?

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Academic Feeder Judges Are Clerkships the Key to Academia? 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 United States.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 Federal Judicial Center’s judge and that feeder judge’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 Guido Calabresi, clerks, which means more future aca- 30 senior judge on the Second Circuit, demics from among those clerks. The 20 appointed by President Bill Clinton 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 Yale Law School. 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, Jimmy Carter 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), Richard Posner 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 Patricia Wald (D.C.
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