Clerks for hire: The Supreme Court recruiting race
By Washington Post, 24/1/24
Jan 25, 2024 - 3:38:45 PM
Last spring, as the Supreme Court wrapped up oral arguments for what was shaping up to be a blockbuster term, the law firm Jones Day invited a group of law clerks to dinner at Del Mar, an upscale restaurant on the D.C. waterfront.
At the dinner, the law clerks traded small talk with Jones Day lawyers over the restaurant’s Spanish seafood cuisine and bottles of wine. While jovial on its face, the Monday night dinner was like other recruiting events in Washington: The firm and its prospective hires were vetting each other.
So goes the courtship of Supreme Court law clerks by Washington’s top law firms. Only about three dozen law clerks work for the justices during each one-year term, which means these lawyers — and their unparalleled knowledge of the court — are in incredibly high demand. Jones Day, the leader in the race to recruit and hire as many clerks as possible, announced last month that it snagged eight law clerks, all of whom worked for conservative justices during the term that began in October 2022.
But they don’t come cheap.
During the courting process, the city’s top law firms treat this elite group of lawyers to perks like an expensive dinner at the Wharf or Penn Quarter or a trip to a baseball game or spa, Tobi reports.
The recruitment is so competitive that signing bonuses for Supreme Court law clerks have reached a new high — $500,000, according to a spokeswoman for law firm Gibson, Dunn & Crutcher. Such a sum far exceeds the salaries paid to the justices — the clerks’ former bosses — who are paid slightly less than $300,000 a year.
The signing bonuses — alongside annual starting salaries of more than $200,000, which alone are nearly triple Americans’ median household income — are the product of a decades-long competition among elite law firms seeking any advantage they can find in arguing high-profile cases before the Supreme Court. They view the clerks’ experience and knowledge of the court as profitable assets that attract clients in a highly specialized sector of the law, and they see clerkships as effective filtering devices in identifying promising hires, according to interviews with former Supreme Court clerks, lawyers and experts.
In this way, the clerks are like many former aides across Washington — whether on Capitol Hill, at regulatory agencies or in the White House — whom law firms value because of their time spent in proximity to power and relationships with influential officials.
“Their knowledge about how the court operates is invaluable,” Neal Katyal, a former acting U.S. solicitor general who co-leads Hogan Lovells’s appellate practice, said of Supreme Court clerks. “Our clients love them.”
But some critics, including at least one former justice and some former clerks, have questioned whether the clerks are worth these enormous signing bonuses — which reached six figures in the early 2000s — and whether spending millions of dollars is sustainable.
“I was quite surprised with $75,000. I was shocked with $150,000,” said Harvard Law School professor Richard Lazarus, who studies the specialization of the Supreme Court bar. “It just boggles my mind.”
“Something is wrong when a judge’s law clerk, just one or two years out of law school, has a salary greater than that of the judge or justice he or she served the year before,” Justice Anthony M. Kennedy said during a 2007 Senate Judiciary Committee hearing.
The half-million-dollar bonuses come as many other aspects of the court are under scrutiny. The public increasingly sees the court as a partisan institution rather than impartial arbiters of justice, polls show. And under pressure after news reports documented benefits like lavish trips that Clarence Thomas and Samuel A. Alito Jr. received from wealthy members of the conservative legal world, the justices released an ethics code for themselves in November.
“The court has taken such a beating in terms of the public perception of the court — some of the beating is self-inflicted — but this isn’t good for the court,” Todd C. Peppers, a professor at Roanoke College who has written extensively about Supreme Court law clerks, said of the bonuses.
Why signing bonuses are so high
Former Supreme Court clerks, lawyers and experts gave Tobi several reasons for the skyrocketing signing bonuses. Here’s one:
Knowledge: Clerks spend a year — sometimes two — learning the ins and outs of the appellate field. They screen petitions, discuss the cases with their justice, prepare questions for oral arguments, and draft orders and opinions.
Carter G. Phillips, a Supreme Court litigator at Sidley Austin who became one of the first lawyers to offer a Supreme Court signing bonus to outgoing law clerks in 1987, said a former clerk’s knowledge of how the court operates and what clerks who review petitions are looking for enhances their ability to write successful petitions to the court.
Law clerks also understand how the justices think and approach cases, said a former Supreme Court law clerk, who spoke on the condition of anonymity out of fear of repercussions to their work before the court.
When former clerks return to the court years later as appellate litigators, they are 16 percent more likely than non-clerks to win the vote of the justice they clerked for when deciding a case, according to a 2020 study in Political Research Quarterly. The justices are also 14 percent more likely to side with their former clerk over one of their colleague’s former clerks, the study found.
There’s just one caveat: To avoid conflicts of interest or the appearance of impropriety, the high court has barred former clerks from working on “any case pending before this court or in any case being considered for filing in this court” for two years.
A race with no end in sight?
Jones Day is leading the race to recruit and hire as many Supreme Court law clerks as possible. The firm has hired 22 clerks since the October 2020 term and 86 since the October 2011 term, according to the firm’s website.
Gibson Dunn in comparison, hired 12 clerks since the October 2020 term, while Kirkland & Ellis hired eight, according to a Washington Post survey.
Although a clerk who went to the Jones Day dinner said that the firm spoke to clerks who worked for every justice, all of the firm’s 2023 hires clerked for a conservative justice during the October 2022 term. The recruitment is part of a five-year trend that corresponds with the emergence of a revolving door between the firm and Trump administration officials, including Donald McGahn. McGahn worked at Jones Day both before and after he served as Donald Trump’s first White House counsel.
“The firm’s profile is not attractive to clerks who have clerked for liberal justices and themselves have liberal views,” said Stephen Gillers, a judicial ethics expert at New York University’s law school. “I think this is self-selection.”
The law clerk who attended Jones Day’s recruiting dinner last year decided not to apply to work at the firm, citing other career interests.
Jones Day did not respond to repeated requests for comment.
It’s unclear if or when the bonus rate will hit a ceiling.
“As long as it’s viewed as a valuable commodity, the market is going to continue to value it in a competitive way,” Phillips said.
Source: Ocnus.net 2022