In the New York Times, Dara Purvis offers a potential strategy to protect law students from an abusive judge: “professors should band together, refuse to send our students to that judge and publicly explain why.” Her proposal offers a peek behind the curtain of the clerkship-hiring process: for many judges, a recommendation from certain professors is a prerequisite for an applicant to receive an interview. In the absence of that recommendation, a student’s application may never make it out of the pile. (Trust me, I know.) As a result, students who are interested in clerking often seek out professors, and work for them, with the understanding that it could yield one of these golden tickets. This process is accelerated at elite institutions, where–now that the clerkship hiring plan has imploded–feeder judges hire 1Ls.
There is a flip-side to this process that is not well understood. A professor’s recommendation for a student is only as good as the professor’s relationship with the judge. Invariably, and inevitably, professors who enjoy strong relationships with judges will want to keep it that way. This dynamic has at least three important implications.
First, the professor will not provide recommendations for an otherwise-qualified applicant who could be a bad fit with the judge. Sending nominees that may not pan out could dilute the value of future referrals. That is cold comfort for a student who did well in a class, or performed excellent research, if the professor doesn’t think the connection is strong. In such cases, a lackluster recommendation could be even worse than no recommendation at all. Indeed, the decision to write a letter, but not place a follow-up phone call, speaks volumes.
Second, the professor has a perverse incentive to tout only the benefits, and not the costs of the clerkship. Being brutally honest could dissuade strong candidates from applying to a given judge. This concern is especially pronounced in light of Purvis’s proposal. Professors aware of Judge Kozinski’s reputation may have been hesitant to voice their concerns. After all, placing a student in his chambers–with a pathway to SCOTUS–is a feather in the professor’s cap! Especially if that clerk goes onto the Supreme Court. If I’m wrong, then adopting Purvis’s proposal should be simple. If I’m right, then Purvis’s proposal will suffer from considerable collective action problems.
Third, and most importantly, professors who are in the clerkship-recommending business will have every reason not to criticize judges who could hire their students. This dynamic has a deleterious impact on academic freedom. Tenure gives scholars the protections to write without fear of retribution. While practicing attorneys are overly obsequious to judges–their livelihood depends on it–scholars need not be. And should not be. Except, where critiquing a judge may impact a professor’s ability to recommend a student for a clerkship. This could chill speech in an unfortunate way. This chilling effect is especially pronounced among academics who are themselves former Supreme Court clerks. Because they were once part of the club, there is a greater-than-average reticence to criticize it–especially when doing so could exclude the professor from the hiring pipeline.
Readers of this blog should recognize that I’ve completely disregarded this third concern. In particular, my writings on the travel ban–see my latest missive–have not endeared me to judges in the Fourth and Ninth Circuit Courts of Appeals, in particular. Indeed, at a conference I introduced myself to one of the judges who ruled on the travel ban cases. The judge’s stern response was, “I know who you are.” I’m glad my work is being read. The importance of scholarly inquiry should prevail over a concern for placing students. But in any event, the concern for a student’s well being should prevail over any prestige that comes with securing elite clerkships.