There’s a lot to be said about the new federal clerkship guidelines issued by the Ad-Hoc Committee on Law Clerk Hiring to address the challenges brought on by the coronavirus outbreak. But stripped of the formalities of a pronouncement to America’s elite, life-tenure jurists, the new marching orders are little more than a suggestion for all judges to keep their heads firmly out of their asses.
The Committee, comprised of Chief Judge Robert Katzmann, Chief Judge Sidney Thomas, Chief Judge Diane Wood, and Earth-2 Supreme Court Justice Merrick Garland, informed judges by letter that the latest version of the Law Clerk Hiring Plan is still in effect but that judges should interview candidates by phone or video chat rather than expecting them to fly across the country to show up at the courthouse. It’s guidance that serves as the federal judiciary equivalent of the “do not consume internally” warnings on bleach — an advisory that no one imagined necessary before the Trump administration got involved.
Because there may well be stodgy old judges unwilling to trust this new-fangled “teletalker” that Graham Bell feller pitched, but the more likely weak link in any plan to keep interviews at a distance are the more ideologically rabid of Trump’s appointees who might be tempted to follow the lead of some of the more of aggressively MAGA governors and blow off public health restrictions to own the libs. Not that an individual law student heading to a courthouse is akin to opening up a beach, but there’s just no reason to put someone through the stress of risking transmission for no purpose.
It’s not all about common sense though. The letter to judges also reiterates that applications should be handled electronically through the OSCAR system rather than through paper submission, mirroring the “clean your groceries” overreaction. It feels a lot more like they just want to get buy-in for OSCAR from recalcitrant judges and they’re hoping to use the virus to coax these judges into the tent.
But as anyone who’s been around the clerkship process for a while knows, this guidance — just like the hiring plan itself — is not mandatory. It’s unclear how many judges even bothered to follow the plan last year, and if history is any guide this regime will eventually fall apart as judges embrace the dystopian nightmare of wildly early application deadlines and exploding offers. As Karen Sloan muses in her piece on the new guidelines, “It remains to be seen whether the added hiring complications from COVID-19 prompt more judges to get on board with the plan or whether the new limitations will give rise to more judges seeking an advantage by hiring early.”
Which, like the Committee’s letter, employs the formal niceties required of discussing federal judges, but boils down to: yes, COVID-19 is going to give rise to more judges seeking an advantage by hiring early. Because as Yeats once described the federal clerkship hiring process, “Things fall apart; the centre cannot hold/Mere anarchy is loosed upon the world”.
Federal Judicial Clerkship Hiring Process Revamped Due to COVID-19 [Law.com]
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.