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WASHINGTON — The intense annual competition to lure elite Supreme Court law clerks to top law firms is reaching record heights this year, with some firms offering jaw-dropping hiring bonuses of $150,000 or more. These bonuses, added to base salaries in the third-year associate range, make it likely that some of the court’s 35 law clerks this term will be paid upward of $300,000 the first year they leave their justice’s chambers. By contrast, Chief Justice William Rehnquist is paid $203,000 a year, and associate justices make $194,300. News of the stratospheric hiring bonuses comes even as the court itself is signaling discomfort with some law firms’ clerk-recruiting practices. Law firms that have put on sometimes lavish dinners for the entire class of law clerks in past years abruptly canceled them this spring — some after the invitations went out — when word came from the court that the dinners were no longer favored by the justices. “The chief justice was apparently bent out of shape about the large dinners and the appearance of coziness they gave,” says one lawyer who hosted his firm’s clerk dinners in past years. Both developments — the burgeoning bonuses and the heightened sensitivity about ethics in clerk hiring — are testaments to the growing, nearly mythical clout and market power of the clerks, most of them just two years out of law school. “The market is speaking, and law firms are swallowing hard and saying it’s worth it,” says Robert Long, coordinator of the appellate and Supreme Court practice at Covington & Burling, who says the $150,000 figure is “in the zone” of what firms are offering this year. Though they would not confirm it, Richmond, Va.-based Hunton & Williams and Cleveland-based Jones Day are said by numerous law firm sources to be among those offering the highest hiring bonuses so far this year. Partners at some other firms say they will now have to match or come close to the $150,000 figure to stay competitive, though others hope to remain under six figures. Former Virginia Supreme Court Justice John Charles Thomas, who heads Hunton’s appellate practice, will not confirm or deny the amount, but says, “We’re in a competitive battle and we intend to be in the game.” Hiring Supreme Court clerks, he says, is a crucial component in building an appellate practice, and “we’re not going to lose.” At Jones Day, partner Glen Nager also won’t confirm or deny the figure, but acknowledges that bonuses are growing — and are well worth the money. “Year in and year out, the odds are better that these ambitious, successful individuals are going to be magnet lawyers for the firm,” says Nager, who chairs the firm’s issues and appeals practice. “When you compare the amount to the salary of a federal judge, it’s shocking, but it’s really not that much money for the return a firm like ours gets.” Paul Smith, co-chair of the appellate and Supreme Court practice at Chicago-based Jenner & Block’s D.C. office, says he is “totally flummoxed” by the escalating bonuses, which he has not had to contemplate because his firm has not made offers to clerks yet this year. “But everyone wants a clerk or two, and we are no different, so we tend to match what is out there. I’ll have to explain it to Chicago.” The $150,000 bonus figure represents a sharp increase, even from the last year or so when the $100,000 barrier was pierced. Partners from four D.C. law firms say it was D.C.’s Kellogg, Huber, Hansen, Todd & Evans that escalated the dollar race by offering bonuses as high as $175,000 to its clerk hires last summer. The firm declines to comment. “Unless a client specifically authorizes us to, we don’t talk to the press,” says partner Michael Kellogg. What makes Supreme Court law clerks worth all that money to law firms? Many echo the answer given by Sidley Austin Brown & Wood’s Carter Phillips: “Most Supreme Court clerks will walk in the door and hit the ground running. They don’t need a year or two to ramp up like some associates do. They pay for themselves almost immediately.” The tough standards that most clerks meet before they get to the Supreme Court — graduating from top schools, editing law reviews, clerking for a top appeals court judge for a year — and their intense year of seven-day workweeks at the court virtually guarantee they will be top performers at law firms, partners agree. “Wherever they’ve been, whatever they’ve done, they’ve been number one,” says Nager. For their time at the court, this term’s clerks are paid at an annual rate of $59,039. In addition to bolstering a firm’s practice, hiring Supreme Court clerks telegraphs to outsiders that the firm is serious about entering the rarified world of Supreme Court practice, where novices fear to tread. “Clients like it that you are getting the people who are perceived to be the best talent around for going to the Supreme Court,” says one partner in a firm that is offering the high bonuses. But there’s a caveat to that argument that makes this year’s bonuses even more remarkable: For the first two years they are in private practice, the law clerks’ vaunted Supreme Court expertise is virtually useless. The Supreme Court’s Rule 7 strictly prohibits former clerks–or any other court employees, for that matter — from participating “in any professional capacity in any case” before the court for two years after they leave. They may not participate in drafting or revising a brief to the court, and are not allowed to assist with moot courts or strategy sessions. “You can’t even kibitz with them in the hallway about a case,” says one lawyer at a firm with a large Supreme Court practice. So, for those two years, the former law clerks work on other appellate matters or complex projects and earn their keep that way. “It’s great to have them around to work on other stuff,” says David Ogden at Wilmer Cutler Pickering Hale and Dorr, who helps recruit high court clerks for the firm. “They make a very valuable contribution.” The hope for some of the firms that woo law clerks is that after two years they will ease into Supreme Court practice with knowledge, only slightly dated, of what kind of arguments appeal to, say, Justice David Souter, or what will turn off Justice Sandra Day O’Connor. One concern expressed by some firms about the new “nosebleed-level bonuses,” as one puts it, is that they will attract law clerks saddled with debt who will take the money and run off to academia or government service after a year or so, leaving firms with expectations unfulfilled. “It might be a risky business to put that kind of money out there,” says Phillips, who adds that he had not heard of the $150,000 figure before being contacted by Recorder affiliate Legal Times. But Phillips says his firm is in a somewhat different situation than others. Sidley has not made serious contact with this term’s clerks yet because it has so many cases still pending before the justices they work for. Though each justice handles it differently, the general rule is that clerks recuse themselves from working on cases in which parties are represented by firms with whom they are negotiating for employment. The timing and extent of law clerk recruitment has always been fraught with ethical uncertainties. The Code of Conduct for law clerks is not a public document, but the 1998 version — believed to be still in effect — is fairly permissive, stopping short of flatly barring clerks from working on cases involving their future employers. A copy of the code is in the recently released Supreme Court files of the late Justice Harry Blackmun. “During the clerkship, a law clerk may seek and obtain employment to commence after the completion of the clerkship,” the 1998 code states, adding that “if any law firm, lawyer or entity with whom a law clerk . . . is seeking or has obtained future employment appears in any matter pending before the appointing justice, the law clerk should bring this fact to the attention of the appointing justice.” But after that notification, the code states, the extent to which the law clerk may work on such a case “should be determined by the appointing justice.” In the context of the code, the large law firm dinners for clerks apparently became suspect, though it is not clear why the ban came this year, when the dinners have proliferated over the last decade. Individual recruitment meetings — even dinners — are still allowed, but the dinners en masse were deemed to give an inappropriate appearance. Among the firms that put on these dinners in the past were Covington & Burling, Kirkland & Ellis, Wilmer Cutler, and Jones Day. “Somehow, the word came out that the court decided it was not a good idea,” says Covington’s Long. Other firms confirmed that their dinners were canceled. Sidley’s Phillips sees a significant message in the court’s new hostility toward the recruiting dinners. “The justices are dealing with the fact that there is a change in the way Supreme Court practices have developed,” he says. A couple of decades ago, it was rare for any firm to argue more than one or two cases per term at the court — even when the court was hearing more than twice as many cases as it hears now. In today’s court, by contrast, a small number of firms return time and again before the court, heightening the aura of clubbiness between practitioners and the court. To allow these same firms to court the clerks at group dinners might, in Phillips’ view, seem like official approval of “the same kind of revolving door atmosphere you have in the other branches.” Tony Mauro is Supreme Court correspondent for American Lawyer Media and The Recorder’s Washington, D.C., affiliate Legal Times. His e-mail address is [email protected].

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