Merrick Garland (photo: Diego M. Radzinschi/ALM). Chief Judge Merrick Garland, U.S. Court of Appeals for the District of Columbia. (Photo: Diego M. Radzinschi/ALM).

 

The federal clerk hiring process, like so many other things, will get a COVID-19 remodeling this summer.

Federal judges have been encouraged to ditch paper applications and interview clerk candidates only by phone or video—negating the need for hot prospects to crisscross the country on last-minute flights to meet with judges in person.

The Ad-Hoc Committee on Law Clerk Hiring, which was created in 2018 and is composed of the three chief judges of federal circuit courts plus Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia, this month released a letter to all federal judges reiterating that the latest version of the Law Clerk Hiring Plan remains in effect during the coronavirus pandemic but that judges should modify their hiring process to limit exposure to the virus and circumvent travel issues for candidates. The clerk hiring plan, which is heading into its second year, seeks to make the clerk hiring process more uniform and transparent by establishing national dates for judges to receive applications, conduct interviews and extend offers. It also pushes clerk hiring back until the end of students’ second year of law school.

“We know how difficult the current period is for students and judges alike, as well as for all of those assisting in the clerkship hiring process,” reads the April 17 letter from the committee. The committee members are Garland, the former chief judge of the DC Circuit; Chief Judge Robert Katzmann of the U.S. Court of Appeals for the Second Circuit; Chief Judge Sidney Thomas of the U.S. Court of Appeals for the Ninth Circuit; and Chief Judge Diane Wood of the U.S. Court of Appeals for the Seventh Circuit.

“Given that the crisis is of uncertain duration, it makes sense to adhere to the application and hiring schedule as planned, with the practical safeguards of online applications and video interviewing.”

Modifying the way clerks are hired is one of many changes the federal courts have had to make amid the coronavirus outbreak. Courthouses across the country have been shuttered and many courts, including the U.S. Supreme Court starting in May, are holding arguments over the phone or via video.

Ruth Payne, senior director for judicial clerkships at the University of Virginia School of Law, said Thursday that the committee’s suggested changes are welcome news for law students hoping to land a clerkship this summer.

“I am pleased that judges are considering the possibility of remote interviews this year,” she said. “Students are being affected in very different ways by the coronavirus. Some will not feel it is safe to travel, either because it would create risks for themselves or for loved ones. Remote interviewing, even if it sacrifices something, makes this a fairer, more open process.”

Interviewing with judges by phone or online will also be a cost-saver for students, since they pay for those travel expenses themselves, noted Lois Casaleggi, associate dean for career services at the University of Chicago Law School.

“In addition, without having to travel for the interviews, there will be far less disruption to their summer employment and, for some students, caregiving obligations,” she said. “I certainly understand the benefits of in-person interviews, but this solution presents some significant benefits for students as well.”

The committee is urging all federal judges to use OSCAR—the federal judiciary’s online clerkship application program—to eliminate the handling of paper applications and the virus transmission risks that come with it. And OSCAR is a key component to the long-term success of the hiring plan, because it allows the judiciary to control when judges receive applications from clerk hopefuls and makes it more complicated for judges to jump the gun on hiring.

The current clerk hiring plan, which debuted last summer, is only the latest in a line of attempts to bring order to the traditionally chaotic world of federal law clerk hiring. Previous attempts enjoyed early success but broke down in subsequent years as more judges hired clerks in advance of the plan’s established dates.

Under the current plan, participating judges wait until the summer after a law student’s second year to make hiring decisions. That timing is meant to ensure judges have two full years of grades to consider and that students who don’t have lawyer parents or other early connections to the industry have time to learn about clerkships and position themselves to secure one.

This year, OSCAR will release applications to judges on June 15. Judges will then have a 24-hour period in which to review applications—a modification added this year—and may start interviewing candidates on June 16. They must hold offers open for 48 hours to allow students to interview with other judges. The committee will reevaluate the pilot plan at the end of the 2020 clerk hiring cycle.

But the first round of the plan generally earned praise from judges and law schools. The deans of 11 top law schools wrote an open letter to federal judges in January, imploring more of them to participate in the clerk hiring plan on the grounds that waiting until after the second year of law school to hire levels the playing field somewhat for students.

It’s unclear how many judges followed the pilot plan in its first year or how many will do so this year. Garland said in January that almost every judge who participated in 2019 plans to do so this summer, but participation is voluntary. 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.