I wrote about the Kozinski affair yesterday and today. Before signing off for the year, I want to write a bit more about the institution of law clerks and why we need to work much harder to unwind the enthusiasm for these unique positions. This is a much longer and more personal post than is usual for me, so skip or endure as makes sense. Also, while I doubt I’d be thinking about these issues again absent the sexual assault and harassment allegations against Judge Kozinski, the topic I address here is so minor in comparison. Hopefully no one misreads this as an attempt to change the subject.
Even before law students arrive, they hear about the extraordinary opportunity that the best of them will have as judicial law clerks. The narrative goes something like this. The clerkship is the best year (or two or three) of your life, starting your career at the end. Only if you become a judge yourself will your job ever be as interesting. And your relationship with your judge will define your life, personally and professionally. You join a family of law clerks, with the judge as matriarch or patriarch. In exchange for hard work, you get a lifetime of contacts and support and even a sizeable signing bonus from the nation’s top law firms. And as with so much else in law, there is a hierarchy here. Federal court is better than state court; appellate clerkships are better than district court clerkships; the DC Circuit better than the others; The Second Circuit next, followed by the Ninth Circuit and then all the rest (with only a few exceptional judges as outliers). At the top of the heap of all is the shining credential, the Supreme Court clerkship.
This received wisdom is very silly and can have devastating consequences for law clerks and not just because some are sexual predators. We elevate the stature of these legal policymakers to an indefensible degree. I might write later about the intellectual decay that arises from these judicial fetishes, but today I want to write about how this narrative around judicial clerkships–especially on student expectations going in–should change.
Let me tell my personal story to illustrate what I mean. I clerked twice on federal appellate courts in different cities. When I came through the scrum with those two clerkships, I was elated. I knew then that I wanted to be a professor, and both my judges are former professors. These were going to be the best years of my life, and I went into the first clerkship with sky-high expectations. The narrative I had imbibed in law school had anchored these expectations, but I gulped readily.
The first clerkship didn’t turn out this way. My sky-high expectations–that we were a family, that the judge would be my mentor and best friend, that my co-clerks would be my siblings, that it would be the greatest year of my life!–were well wide the mark. Truth is, I gelled with only one co-clerk, and he was technically my predecessor, gone within a month. Despite good faith and strong efforts on all sides, it just didn’t happen with the rest. We just liked different things, approached life in different ways, had little in common. But expecting to be their long-lost brother made every otherwise collegial, amicable, perhaps slightly awkward interaction feel like a kind of failure.
The same was true for my boss. I learned a lot from him, but we never developed a close bond. I have a deep respect for him as a jurist, but he is not a mentor to me, nor I a protege to him. We certainly weren’t family.
Expecting to be embraced as a part of a judicial family also made one idiosyncratically difficult experience feel like a crushing disappointment. Early in my clerkship my actual family suffered through a prolonged and unexpected medical crisis that left me gutted, probably the hardest thing I’ve gone through in my life. Bad luck to have it happen during a one-year clerkship with no real structure for these kinds of things, but I remember feeling like my work “family” should’ve been there for me in a way that they weren’t. I was given a day-and-a-half off and the topic came up exactly once with my boss after I divulged the details in a long, late-night email from the hospital.
I have come to think that my dashed expectations, though real, were unfair. I was wrong to expect so much from my employer and coworkers. None of them knew me well, all of them faced the regular crush of judicial work each day, and I think they (and especially my judge) probably wanted to give me privacy and space without compromising the quality of work that had to be done. The court certainly shouldn’t have shifted its priorities because of my family emergency, and we were all doing the work of supporting the judge on the court.
Even so, I expected something else. I never articulated this to them, so I don’t blame them for this. But I think I expected them to sprint to the hospital. To be with me in a crisis, to take some work off my plate, to just listen or talk or do what families do. But that is not what strangers do, and we were still mostly strangers, brought together by a work commitment, but not a personal one.
The failures to live up to those expectations were so painful to me. I left the clerkship feeling deflated. I vividly remember the ride from the first clerkship to the second, having left the courthouse directly for the bus (my young family was already in the new city). I was in a profound cloud of misery. It probably took me two years before I could look back on that year without feeling immediate pangs of disappointment.
To be clear, I did good work for the judge and he was a model boss in so many ways. The cases I worked on were fascinating, complex, important. The judge often gave specific guidance on what I did right and what I did wrong, taking time to work through how an eminent lawyer thought about hard questions. I’ve never spoken to him directly on this subject–and we have had a few very pleasant conversations in the years since I left his chambers–but I think he regarded my clerkship as a successful one.
I didn’t see it that way for a long time. I wanted more. I wanted a lifetime mentor. I wanted a co-author for my life’s ambitions. I wanted someone to help guide me through a once-in-a-lifetime (I hope!) medical emergency. And that was a unfair burden to put on him (and my co-clerks).
I began my second clerkship with much more moderate expectations. I didn’t expect my co-clerks to be my best friends. I wanted to do great work for my new boss, but didn’t expect him to be a father figure or life mentor.
Those shifted expectations made the second clerkship categorically better than the first. They allowed me to develop authentic connections much more easily than my outlandish expectations would allow the first time around. Ironically, one of my co-clerks actually did become one of my best friends (and the other was an outstanding colleague). And ironically, my second boss has become one of my closest mentors and, indeed, a close personal friend. This isn’t because every clerkship connection is foreordained for this. It’s because my co-clerk and I, and my second judge and I, developed meaningful relationships that arose in time according to our own interests and personalities.
I ended up becoming a business school professor, not a law professor, so any mentoring advice on clerkships I have to give will have to be directed at our student readers. So here goes. Despite my career change, I don’t regret clerking, either time. It was a great job. But it was a job. If you clerk, you should treat it that way too.
Also, take seriously the threshold questions of whether in fact clerking is for you, and if so, where and with whom you should do it. Forget hierarchies. Flush the law-school narrative. If you’re a Delaware corporate law nut, then go to the Delaware Chancery Court. If bankruptcy is your thing, clerk for a bankruptcy judge. A state trial court clerkship is going to be vastly more valuable for a public defender than a federal appellate clerkship. And if the idea of working in close quarters with a much older lawyer writing judicial opinions sounds unappealing, for whatever reason, don’t apply for a clerkship at all. (Hiring committees, by the way, should take note and quit assigning independent value to these jobs within the fabled hierarchy.)
Forget the tabloid-esque garbage that tracks Supreme Court clerkships and turns each clerk and judge into major celebrities. Rank, infantile silliness. Making the Supreme Court clerkship some kind of lottery-like prize only entrenches our national judicial religion. (Full disclosure, and lest anyone get the wrong idea, I never applied for a Supreme Court clerkship–these aren’t sour grapes I’m chewing.)
And whatever your life goals, don’t assume that your boss will be your parent. Don’t assume your co-workers will be your best friends. Let life happen to you more organically and be pleasantly surprised when genuine human connections develop on their own. Those connections are incredibly precious and, in my experience, rare. Celebrate them when you find them, but don’t expect them as a job perquisite.
My last point is advice for all of those who support the judicial clerkship industrial complex. If a judge wants to behave in a way we would never accept from any other boss, we should refuse to facilitate that behavior from judges (I go into this a bit in my last post about oral argument). I’m not just talking about sexual harassment, although I’m talking about that, too. I mean a judge who expects no division between the personal and professional, who wants to own his clerks for a year without restraints. That’s not a professional relationship and judges who want that from their clerks should not be supported by anyone.
I’m fortunate that neither of my judicial employers were anything like that. But if they were, I doubt I would’ve said anything. I’d absorbed too completely that broken narrative that puts judges beyond any pale of common professional norms. This is too much a burden to put on those who can suffer professionally from raising their hands. In that way, how we hold up these flawed humans for worship indicts us all.