After A history-making year at the nation’s highest court, last term’s U.S. Supreme Court law clerks are stepping into jobs at big law firms with jaw-dropping hiring bonuses of $280,000 or more.
With associate salaries at $150,000 or more at many large firms, that makes for a first-year investment approaching $500,000 per law clerk, not counting other bonuses or benefits. Put another way, clerks will earn more than twice the salaries of the justices they worked for. Not bad, given that ex-clerks are ethically barred from doing Supreme Court work for two years.
In spite of that, and the uncertainties of the economy, the competition for law clerks’ services was brisk after the term ended in June, with law firms forking over the bonuses largely without complaint. The hot market appears to reflect the unique appeal of high court clerks more than the afterglow of a term in which the Supreme Court was in the national spotlight. The bonuses add even more luster to the Supreme Court clerkship as a credential without parallel.
“There was really intense competition this summer,” said Hogan Lovells partner Neal Katyal, who was one of several top advocates recruiting last term’s clerks. Katyal recalled that during a 12-day vacation in Italy, he was on the phone every night with one of several candidates or with a law firm colleague discussing potential hires. Hagan Scotten and Frederick Liu, both clerks to Chief Justice John Roberts Jr., who once headed Hogan’s appellate practice, have decided to join Hogan, Katyal said. “These are extraordinary people.”
So far, Jones Day is the numerical market leader, hiring five of last term’s 39 clerks (each sitting justice has four, and the three retired justices have one each.) “We are thrilled to have five” clerks from last term, said appellate partner Beth Heifetz. “And there are a couple of offers outstanding, so it is five and counting.”
Jones Day hired two of Justice Samuel Alito Jr.’s clerks: Anthony Dick and Ryan Newman. Brian Lea, who will work in the firm’s Atlanta office, was recruited from the chambers of Justice Clarence Thomas. Christopher DiPompeo, who clerked for Roberts, and Jeffrey Johnson, clerk to Justice Elena Kagan, round out the Jones Day hires so far.
‘An Investment That Pays Off’
Are the five clerks worth the $1.4 million in hiring bonuses? “We think it is a fabulous investment that pays off,” Heifetz said. She hastens to note that “we have fabulous lawyers at Jones Day who did not clerk at the Supreme Court.” But overall, she added, the former clerks “bring a high level of ability and experience to appellate work and show curiosity about the law, the ability to come up with great, innovative arguments, and a fine-tuned sense of what the justices are looking for.”
Heifetz said the fact that two Jones Day partners, Michael Carvin and Gregory Katsas, argued in the landmark Affordable Care Act cases in March may have helped draw the clerks to her firm. “Visibility always helps,” she said, noting that partner Michael Fried also argued a case last term. Their participation illustrated another Jones Day tradition: key Supreme Court work is not handled just by one superstar at the firm. The work is spread around.
And the two-year bar against arguing at the high court gives the former clerks time to hone their appellate skills. Appellate lawyers at Jones Day become involved in litigation at the earliest stages, Heifetz said, so “there is plenty of work to go around.”
Lisa Blatt, head of Arnold & Porter’s appellate and Supreme Court practice, is also not fazed by hiring clerks who have to stay away from Supreme Court work for two years. “After the two years, they are a tremendous resource.”
Katyal at Hogan Lovell agrees that the investment is worthwhile. At the firm whose appellate practice was made famous by E. Barrett Prettyman Jr. and John Roberts, Katyal said his goal is to “train the best oral advocates of the next generation.” He added, “I want our firm to be known as the incubator of young legal talent.” With the two-year bar on Supreme Court practice, Katyal said his priority will be getting the former clerks into lower courts quickly, and to mentor them as well.
Katyal said he was especially happy that he was able to hire Scotten, one of Roberts’ clerks last term. Scotten won two Bronze Stars in the U.S. Army, and was first in his class at Harvard Law School.
Thomas Dupree Jr., hiring partner in Gibson, Dunn & Crutcher’s D.C. office, also hired two of last term’s clerks: Carl Marchioli, formerly with Justice Antonin Scalia, and Justin Walker, who clerked for Justice Anthony Kennedy. “Every year it’s a dogfight,” said Dupree. “The whole Supreme Court clerk recruiting process is the law firm equivalent of the Bachelor or the Bachelorette television shows. Fortunately, we’ve had our fair share of roses.” He noted that two terms ago, Gibson hired six clerks straight out of the Supreme Court.
In part because of the high hiring bonus, Dupree said “we’re very up front” in making it clear to recruits that “it’s a long-term investment and we are hiring you with the hope that you’ll be with us for a meaningful period of time.”
‘Alarming Amount of Money’
The heady market for law clerks has its critics. “It’s an alarming amount of money, and, at some point, one wonders what the law firms think they are purchasing,” said Todd Peppers, author of two books about Supreme Court clerks. “Of course, they are getting top-notch lawyers. But they are still green and relatively untrained lawyers.” He worries that the bonuses might increase pressure on former clerks to violate their pledge to the court of confidentiality by giving clients “an insider’s view.”
Anecdotally, there is talk of some law firms sitting out the Supreme Court clerk market altogether, though they are hard to find. “The bonus has gotten large enough that even when you amortize it out, it’s a noticeable figure,” said one leading advocate who declined to be named.
Seth Waxman, head of the appellate and Supreme Court practice at Wilmer Cutler Pickering Hale and Dorr, also questioned the hiring market for Supreme Court clerks, in part because once they are hired, some leave for other pursuits before the investment bears fruit. “As an economic matter, to pay $280,000 for someone who works for one or two years is not a very satisfactory proposition,” Waxman said. “A lot of firms want them as trophies.” Waxman said he is courting several clerks from last term, but he does not make the salary determinations.
Heifetz and Dupree said they have not encountered the “take the money and run” problem with their Supreme Court hires. Said Heifetz, “We haven’t found Supreme Court clerks leaving earlier or unexpectedly. Maybe it’s because they are enjoying working with the firm.”
How did the bonus reach $280,000, after years of lingering at $250,000? The leap actually took place last year, though it took full hold this year, and has even gone to $285,000 at some firms. The story circulating among Supreme Court advocates is that Sidley Austin’s Chicago office offered a $280,000 hiring bonus to a promising former clerk last summer. Word of the higher amount quickly spread, and other firms, with varying degrees of enthusiasm, boosted their hiring bonuses to meet the market.
Asked about the story, Sidley’s Supreme Court veteran Carter Phillips said it was only partly true. The unnamed clerk in question told a Sidley recruiter that another firm had offered him $280,000, and Sidley agreed to match it. “So Sidley did not initiate the increase, but we caused it to apply everywhere,” Phillips said. Sidley has hired two clerks who worked for Justice Ruth Bader Ginsburg last term: Benjamin Beaton and Jennifer Clark.
Phillips has also grumbled about the big bonuses in the past, echoing the concern that former clerks may be tempted to use the money to pay off student debt, then head off to academia. But Phillips appears to have mellowed somewhat.
“If you choose the right people they are definitely worth it, but it is a huge bet now,” said Phillips. Recalling that when he helped launch Sidley’s Supreme Court practice in the 1980s, he proposed a $5,000 hiring bonus for former clerks, Phillips added, “I confess that it was easier that first time.”
@|Tony Mauro covers the U.S. Supreme Court for ALM, the parent company of the Law Journal. He can be contacted at firstname.lastname@example.org.