D.C. Circuit Review – Reviewed: Clerking, D.C. Circuit Edition

by Aaron Nielson — Saturday, Nov. 21, 2015@Aaron_L_Nielson

Law clerks, of course, vow to keep confidential “any information [they] receive through [their] clerkship that is not part of the public record.” Even so, this announcement should be safe: D.C. Circuit law clerks are terrible at basketball. Each year, the D.C. Circuit clerks play a game of basketball against the Supreme Court clerks. In my experience, confirmed by others, the Supreme Court clerks regularly annihilate their D.C. Circuit counterparts. (Supreme Court clerks, after all, are allowed to practice “in the Highest Court in the Land.”) Despite these humiliating losses, however, many people still want to clerk on the D.C. Circuit. In this season of law clerk hiring, it seems worthwhile to take a moment to discuss a few points about D.C. Circuit clerkships.

First, these clerkships are scarce. As Judge Millett —by any measure, an extraordinary lawyer—explains: “I could not get hired for a D.C. Circuit clerkship.” Judges often get hundreds of applications each year for just three or four slots. Why are D.C .Circuit clerkships so hard to get? Well, all circuit court clerkships are hard to get. Getting hired to clerk on the D.C. Circuit can be particularly challenging, however, because of its location (lots of lawyers want to be in D.C.) and because many of its judges “feed” to the Supreme Court.*

Second, the D.C. Circuit played an important role in the collapse of the Law Clerk Hiring Plan. Indeed, the D.C. Circuit’s announcement that it would no longer abide by the Hiring Plan’s dates was the coup de grace; afterwards, everything fell apart. Long story short, for a while judges tried to push hiring back until the 3L year. The D.C. Circuit acted as an anchor in these efforts. Because the D.C. Circuit (mostly) abided by the Plan, and because many strong applicants wanted to clerk on the D.C. Circuit, the hiring dates held, at least for a while. But the Plan could not last—for reasons that an antitrust lawyer could easily predict. Eventually it became an open secret (at least to those “in the know”) that many judges across the country were not following the Plan; indeed, some judges never followed it because it had too many unintended consequences. Bowing to reality, on January 29, 2013 the D.C. Circuit wisely withdrew from the Plan.

Third, clerking on the D.C. Circuit is unusual because all of the judges are in the same building. This means that the clerks get to know each other well. Being a law clerk for an appellate judge can be monastic, so it is nice having others around. That said, there are trade-offs. A fun part of clerking is visiting a new city for sittings. It’s hard to beat monthly trips to say, New Orleans, San Francisco, or Denver. That doesn’t happen on the D.C. Circuit. Potential law clerks should be aware of that reality.

Fourth, the court has many interesting cases. This week’s denial of a petition for rehearing en banc(with a noteworthy concurrence by Judge Kavanaugh), for example, deals with bulk data collection by the government. To be sure, the D.C. Circuit does not have a monopoly on interesting cases. Indeed, it has a docket heavy on administrative law, and, as Judge Easterbrook has explained, there is something to be said for variety. But just because this court does not have a monopoly on interesting cases does not mean it lacks for them. The D.C. Circuit plays a key role in reviewing the actions of the administrative state. So long as that is true, it will have interesting cases. But potential law clerks should take note: if you are going to clerk on the D.C. Circuit, you better know administrative law.

And finally, fifth, clerks learn a lot about electricity. This week’s “admin law” opinion is a good illustration. In Western Minnesota Municipal Power Agency v. FERC, the court was asked to review FERC’s interpretation of the word “municipality” in the Federal Power Act. Writing for the panel, Judge Rogers (joined by Judges Garland and Edwards) found that the Commission’s interpretation of “municipality” was at odds with what Congress said, thus failing Chevron step one. (The panel, along the way, rejected application of FDA v. Brown & Williamson.) As a law clerk on the D.C. Circuit, this sort of case is par for the course. Thank goodness for Judge Williams. (If you are interested, the other case this week involves ineffective assistance of counsel for “affirmatively misrepresenting the potential immigration consequences of a conviction.”)

What’s the takeaway from all of this? Obviously, that D.C. Circuit clerks are terrible at basketball.

* One of the most humbling experiences of my professional life was reviewing clerkship applications. Ralph Waldo Emerson once observed that “[s]hallow men believe in luck,” while “[s]trong men believe in cause and effect.” When I think about how I ended up clerking on the D.C. Circuit, I am a very shallow man.

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About Aaron Nielson

Professor Nielson is an associate professor at Brigham Young University Law School, where he teaches and writes in the areas of administrative law, civil procedure, federal courts, and antitrust. He currently serves as a public member of the Administrative Conference of the United States, a federal agency that studies the administrative process and makes recommendations on ways to improve it. He also co-chairs the Rulemaking Committee of the American Bar Association’s Section of Administrative Law & Regulatory Practice. Previously he chaired the Section's Antitrust & Trade Regulation Committee. Before joining the academy, Professor Nielson was a partner in the Washington, D.C. office of Kirkland & Ellis LLP (where he remains of counsel). He also has served as a law clerk to Justice Samuel A. Alito, Jr. of the U.S. Supreme Court, Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit, and Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. Follow him on Twitter @Aaron_L_Nielson.

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