The carefully worded letters have gone out from law firms to the U.S. Supreme Court, inviting justices’ law clerks to contact the firms when appropriate.
And some have begun responding in the past few weeks, freed by their justices to do so after they are done working on cases involving the firms.
The Supreme Court law clerk hiring season has begun. It is a pricey mating dance in which hiring bonuses for the much-prized clerks have escalated rapidly, reaching $250,000 last year — only five years after bonuses first broke the $100,000 barrier. But that was before the economy tanked, bringing down law firms along with everyone else.
So when the clerks sit down with top partners during the summer to talk about job openings, will the $250K be on the table with them? For firms that have bled during the current recession, the answer will be no $250K — though firms won’t say what the new, lower level will be. But some of the healthier firms among the big players in Supreme Court practice indicate they’ll still do whatever it takes to snag a high court clerk.
“A Supreme Court clerkship is a recession-proof credential,” David Frederick said firmly. The Kellogg, Huber, Hansen, Todd, Evans & Figel partner declined to say specifically how much of a bonus his firm will offer this year, but added, “We’re hoping to hire a couple of clerks this term.”
King & Spalding’s Paul Clement, the former solicitor general, concurs. “The clerks will still be in great demand,” he said, though he added, “I don’t think the bonus is going up.”
But Clement, who sent the letters to all 36 clerks last month, is still trying build an appellate practice. And Frederick says his midsize firm is very busy and, “knock on wood, has not been affected” by the downturn.
At firms that have been shaken by the downturn, however, a $250,000 bonus will be hard to sell, some practitioners say. “Intuitively, it doesn’t feel right to pay that kind of bonus when you are trying to make economies wherever you can at the firm,” said veteran advocate Carter Phillips, managing partner at Sidley Austin’s Washington office. Thomas Goldstein of Akin, Gump, Strauss, Hauer & Feld, where there have been cuts, agrees that it’s tough to justify a $250,000 bonus when a firm is considering letting go a staff person paid $50,000. Because of that juxtaposition, he predicted bonuses will shrink — though he said it’s too early in the hiring season to say how much. “The number of firms willing to pay that amount of money will be down.”
Firms won’t be sorry to wave goodbye to what Goldstein calls the “incredible escalation” that the $250,000 bonus represents. Even before the recession, firms were grumbling about it because of a recurring pattern: Some clerks grab the bonus, work at the firm for a year or three, then skip off to academia with loans paid off and kids’ tuition in the bank. “Firms are going to be more interested in clerks staying around and practicing law,” Clement said.
“If I am going to spend that kind of money,” Goldstein said, “I am going to ask whether this person will be with us for a while.”
The recession may also force high court clerks into more of a buyer’s market than they’ve ever faced before, said Phillips. “If I were a clerk now, I would not assume that every firm I send a resume to would beat down the door to hire me, and historically they could.”
That said, Phillips said the clerks remain “a pool of very talented lawyers, and it would be foolish to say we didn’t want to talk to them.”
HOME COURT ADVANTAGE
The last-minute challenges to the Chrysler Group LLC sale last week focused a rare spotlight on a little-known aspect of the Supreme Court’s work: the justices’ circuit assignments.
A throwback to the days when justices rode the circuits, federal law calls for individual justices to be assigned to the various federal circuits to handle emergency applications. Justice Ruth Bader Ginsburg received the Chrysler filings because the bankruptcy originated in the U.S. Court of Appeals for the 2d Circuit, which is assigned to her.
When Justice David Souter retires this summer, new circuit assignments will be made by the Court. By a rare happenstance, the post-Souter assignments could have special significance because they may end up giving almost all of the justices “home court” circuits — circuits where they were raised or once served as judges.
Souter has been the circuit justice for both the 1st and 3rd circuits. When he departs, the betting is that, at least temporarily, Justice Stephen Breyer, who now handles the Denver-based 10th Circuit, will take over the 1st, where he sat for 14 years. And the 3d? That could go to Justice Samuel Alito Jr., who was a 3d Circuit judge for 15 years but has been assigned to the St. Louis-based 8th since joining the Court in 2006.
It may seem logical that a justice is assigned to a circuit he or she knows, but it almost never starts out that way. “You don’t automatically get your home circuit,” said a retired deputy clerk of the court, Francis Lorson. Ginsburg, for example, grew up in New York and feels right at home with the 2d, but when she replaced Byron White in 1993, she was initially assigned to his 10th circuit.
But over time, justices in recent years have gravitated to their home circuits. Justices Anthony Kennedy and Clarence Thomas celebrated homecomings of sorts when they were assigned to their home circuits — the 9th and 11th, respectively — well into their tenures.
Justice John Paul Stevens handles his beloved 7th Circuit, where he was once a judge, and Chief Justice John Roberts Jr. handles both the D.C. Circuit, where he once sat, and the 4th, where he lives. (The chief justice is traditionally assigned the D.C. and 4th circuits.)
So if Souter’s circuits get assigned to Breyer and Alito, the result would be that only two of the nine justices on the new court will be assigned to “foreign” courts: Antonin Scalia and Sonia Sotomayor, if confirmed. Scalia has long been assigned to the busy 5th Circuit in New Orleans. If he keeps the 5th and Ginsburg hangs on to the 2d, that would leave only the Midwestern 8th or the Western 10th open for Sotomayor — a New Yorker through and through.
COURT SITE MAKEOVER
At the Web site of the High Court of Australia, you can take a somewhat dizzying virtual tour of its courtroom. The Constitutional Court of South Africa’s site gives a detailed look at the art hanging on the walls of its courthouse. The Supreme Court of Canada has an online educational portal that offers a pop quiz and coloring book for kids, and a much-needed backgrounder on why the justices sometimes wear those Santa-like red robes.
And the Web site of the Supreme Court of the United States? It has none of the above.
The Supreme Court’s site is very popular — 19 million hits in January alone — but its design is virtually unchanged since it was launched in April 2000. “Its navigation is a nightmare,” said the Sunlight Foundation, whose mission is to make the federal government more accessible through the Internet. The Court’s site, the foundation added, “is long overdue for an overhaul.”
The foundation last week rolled out its own prototype of an updated Supreme Court Web site (viewable at www.sunlightfoundation.com). It has the latest opinions, the Court’s calendar, a photo of the justices, links to Justice David Souter’s retirement letter and RSS feeds that could keep everyone up to date — all on the main page. The foundation recommended other innovations, even including a blog that would shed light on the Court’s activities, employees and history.
The foundation did the mock-up on its own initiative and not in consultation with the Court, said policy counsel Daniel Schuman. But he has alerted the Court to its existence and hopes it will help the Court rethink its Web site.
That re-examination is already under way, said Court public information officer Kathy Arberg. “The Court’s technical staff have made considerable progress, working in-house, to design a better site with enhanced services.” At the Court’s April budget hearing before a House subcommittee, justices Clarence Thomas and Stephen Breyer highlighted a $799,000 budget request for staff and equipment needed to upgrade the site and take control of it back from the Government Printing Office. “The Web site is outdated,” Thomas acknowledged. “It’s time to do something with it.”
As an example of what could be done, Breyer recalled a C-SPAN program during which he and then-Justice Sandra Day O’Connor fielded live questions from high school students. “I’d say, let’s put this on the Web as we’re doing it.”
Although the makeover of the Court’s Web site is under way, it will still have to overcome the Court’s deeply rooted reticence about venturing too far into the spotlight and into the media culture. But the momentum of the Internet, aided by Souter’s recent comments about the dire state of public knowledge about government, may finally move the Court and its Web site into the 21st century.
But a Supreme Court blog? The justices probably would rather adopt the fur-trimmed red robes of their Canadian counterparts than say yes to blogging from inside the Marble Palace.
Tony Mauro can be contacted at firstname.lastname@example.org.