[Thanks to Paul Caron for the link at Tax Prof Blog, and welcome to his visitors!]
It is not too unusual when someone all but admits that the federal judicial clerkship process is an [somewhat] absurd one.* It’s fun, though, when it comes from a Supreme Court justice, who admits the error in the process while insisting on continuing it. So it is from Justice Scalia, in today’s NYT:
“By and large,” he said, “I’m going to be picking from the law schools that basically are the hardest to get into. They admit the best and the brightest, and they may not teach very well, but you can’t make a sow’s ear out of a silk purse. If they come in the best and the brightest, they’re probably going to leave the best and the brightest, O.K.?”
. . . .
Justice Scalia said he could think of one sort-of exception to his rule favoring the elite schools.
“One of my former clerks whom I am the most proud of now sits on the Sixth Circuit Court of Appeals” in Cincinnati, the justice said, referring to Judge Jeffrey S. Sutton. But Justice Scalia explained that Mr. Sutton had been hired by Justice Lewis F. Powell Jr. after his retirement and then helped out in Justice Scalia’s chambers.
“I wouldn’t have hired Jeff Sutton,” Justice Scalia said. “For God’s sake, he went to Ohio State! And he’s one of the very best law clerks I ever had.”
It’s true that too many people apply, and that some method of sorting applications is needed. It’s also true that the entire legal system is a slave to hierarchy and elitism. But to both admit that the system misses some of the “very best law clerks” and that you intend to keep the current system without change takes a special type of elitism.
Is there, though, a better method of selecting people who would be the “very best law clerks”? I can’t think of how. I mean, no matter how much you like someone in a 15-minute or even 30-minute interview, a judge is going to have to come back to look at the resumes and transcripts — and that top school, especially if it’s Harvard or Yale or Stanford, is going to leave an impression that an Ohio State or American University, where Scalia made the remarks, won’t.
It’s the reason why I give advice that I hate to students considering law schools: Go to the highest-rank school to which you are admitted. The end. And if you do well your first year, try to transfer to a better school.
We can debate who is really No. 1, we can debate whether this school or that school should be in the top 10 or just the top 15, we can debate US News vs. Leiter, but the bottom line is that law — from clerkships to private firms to government jobs — is so focused on ranking and hierarchy of the law school itself that (other than deciding between two or three schools of about the same ranking) there really is no reason for a good student to actual consider the professors and courses and focuses for which schools are known. Just look at the charts, and your choice is made for you after you get all your acceptances or rejections.
In a profession dedicated to advancing justice and the rule of law, it’s somewhat disheartening that a school’s value to an individual (in terms of the professors and courses) is not nearly as important for success in one’s career as is the aggregate opinion of elites themselves as to which school is the “best.”
And Justice Scalia’s comments, while admitting of the failures inherent in such a system, affirm that system.
I’d love to hear others’ thoughts, particularly contrasting ones, on this topic.
* * * * *
* = In full disclosure, I should note that the clerkship application process is one from which I — a proud Buckeye — have come out without a clerkship on two different cycles, during which I had 6 interviews — for 5 district court judges and one appellate judge.
Popularity: 1% [?]
Chris Geidner is the senior political writer at D.C.'s Metro Weekly and has written for The Atlantic Online, Advocate.com, Salon and other publications, as well as at his blog, Law Dork. Prior to moving to D.C. in 2009, he served as an attorney on the senior staff at the Ohio Attorney General's Office and had earlier worked for a leading Columbus law firm. An extended biography can be found
I agree. The mainstream, commercial version of legal career success is essentially an elitist racket. I would only stress that that is only one definition of success add that it is possible to craft a “successful” legal career surrounded by a less intense brand of elitism and thus controlled by elitism to a far lesser extent. (The entire system is elitist to some degree or other, of course, from muni court to SCOTUS. It is simply the nature of the beast.) Of course, this equates to a legal career that does not include success markers such as BigLaw, clerkships, or lifetime federal appointments. Then again, that works for some (myself included). I chose OSU for its educational character, not ranking, and my career has followed in that vein. Successful by mainstream legal standards? HA! But within my own system? Certainly.
I’m skeptical that I got a substantively better education at a highly ranked law school than I would have gotten at a lower ranked one (and I’m pretty sure I would have learned more law if I’d gone somewhere without open-book exams), but like you I advise people to go to the most highly ranked school they can.
There are people who will do just as well ignoring that advice. One of my friends dropped a top 5 and a top 10 school in favor of a top 25 one, and is doing enormously well there as EIC of the law review, getting job offers at all the same firms that would have been open to her at the Ivies, etc.
But it’s just prudent to go to the higher ranked school and give yourself a cushion against the possibility that you won’t be the rockstar LR EIC type. My cousin currently is deciding between UMD and UConn — she’s nervous about living in Baltimore, and I’m trying to subtly impress upon her that she’s better off having her car stereo stolen once or twice and being at the higher ranked school
Having been one of the few (perhaps the only?) to have attended classes at *both* Moritz and Harvard, all I can say is that there is ridiculously little difference.
One way to look at it is that it’s unfortunate that so many variables boil down to your LSAT and therefore the school you attended, the grades you got there, and the judge who hired you as a clerk, and whether he or she regularly sends clerks to the Court.
On the other hand, we’re talking about a very rare credential being offered. There are 37 Supreme Court Clerkships every year. As a comparison, there are 192 players drafted into the NFL each year, and there are 20-25 MacArthur “genius” awards. At least in the law there is a fairly determinate way to get these positions. If you have a perfect score on the LSAT you can go to HYS. If while there you do better than anyone else, and edit the law review, you will get a Supreme Court clerkship. That’s not the only way, but it is a way. Yes, it might be better if the Justices somehow could gauge whether you chose the best school for your individual needs and excelled to the best of your ability, and then could compare their holistic view of you with all the others who applied to determine the very best candidates, but they are humans with, frankly, more important things to do.
If anything, the tragedy is that so many think that they need the equivalent of being drafted into the NFL or a MacArthur genius award to be successful.
Having graduated from a “2nd-tier” law school, I understand very well the elitism that accompanies legal hiring processes. But I really can’t say I have much of a problem with it. Resources are limited; one’s law school generally serves as a pretty good indicator of how smart that person is and his performance at that law school generally gives a pretty good indication of what his work habits are like.
But Justice Scalia highlighted one thing that compounds the problem. Law school does virtually nothing to actually train students to practice law. As Scalia said, even if the law school teaches badly, he knows he’s still getting the smartest kids. So much of what is taught in law school is utterly irrelevant, so it really makes no difference how it’s taught. Just fall back on the name of the school and kid’s GPA. They all learn the same thing anyway.
I would disagree with one of your statements, however. After you get past the top 15-20 schools or so, your career prospects are very similar wherever you go (until you get to the third tier, anyway). So I’m not sure the rule of going-to-the-better-ranked-school always applies. One’s career prospects can actually be better at a lower-ranked school, depending on where that school is located.
For example, the University of Denver’s law school is ranked 32 spots lower than American University, well out of the top 50. But if you want to work at a good firm in Denver, you are MUCH better off going to DU.
I tell people that if they’re not going to a national (i.e., Top 14) school, pay just as much attention to location as you do to ranking. Both are important.