So much for convincing federal judges to play by the rules.
The judiciary increasingly has flouted voluntary guidelines on hiring judicial clerks by making offers ahead of schedule. The disregard for the rules is so rampant that the Administrative Office of the U.S. Courts (AOC) has effectively dismantled a decade-old plan that pushed hiring for the prestigious clerkships back into the third year of law school. Now judges have carte blanche to hire their clerks from among the ranks of second-year students.
Giving judges the flexibility to hire on their own timelines should make the process more transparent and fair, said judges, court administrators and clerkship advisers at law schools. As it was, students in recent years have struggled to navigate a confusing system in which some judges abided by a voluntary post-Labor Day hiring kickoff date — and others hired much sooner.
“I think it’s fair to say the hiring plan is kaput,” said Judge Nicholas Garaufis, who sits on the U.S. District Court for the Eastern District of New York and the judiciary’s working group that oversees clerk hiring. “Obviously, there are many judges who have been considering 2Ls recently, and the idea that you set a hiring date at the beginning of the third year of law school no longer had viability.”
The changes center on the Online System for Clerkship Application and Review (OSCAR), which is a database where federal judges post open clerk positions, detail their clerk criteria and accept applications. OSCAR is accessible to students at all law schools and makes it easy for aspiring clerks to apply with multiple judges. As of Nov. 4, OSCAR became available to second-year law students and delinked from the hiring plan’s timeline, meaning judges can now access applications from 2Ls as soon as they are submitted. OSCAR previously withheld applications from judges until a specific date in an effort to get them to hire only 3Ls, as per the plan. Moreover, the nine judges who make up the OSCAR working group will meet Nov. 25 to discuss whether to allow first-year students to submit online applications for clerkships — which would essentially bring the process back to the days when judges could hire whomever they liked, whenever they wanted.
“The confusion of the last judicial clerkship hiring cycle really drove it home that it needed to be changed,” said Jim Leipold, executive director of the National Association for Law Placement (NALP). “We had developed a situation where there wasn’t an even playing field because not everyone had the same information.”
Decoupling OSCAR from the hiring plan is intended to lure federal judges back to the online system. The more judges who use OSCAR, the easier it is for students to determine which judges are hiring, court administrators reasoned.
“The goal of what we’re doing is to provide transparency in law clerk hiring,” said Laura Simon, the OSCAR program manager for the AOC.
Judges will have to supply at least some information about their hiring practices if they want to use OSCAR — which provides a major convenience for them because the system allows for easy sorting through hundreds or even thousands of applications.
The move was welcomed by Kelsey Kelley, a 2013 graduate of the University of Minnesota Law School now clerking for a judge on the Minnesota Court of Appeals. Kelley saw firsthand just how convoluted the process can be this summer, when she applied for a clerkship with a federal circuit judge in her home state of Iowa who was not listed on OSCAR. She learned of the position only because a University of Iowa College of Law graduate who was clerking with her boyfriend mentioned it.
“I definitely think it’s confusing and frustrating, especially when I found out that there were judges hiring outside of OSCAR,” Kelley said. “You wouldn’t know that unless you know someone who knows someone. If there’s going to be an OSCAR system, all the judges need to take part. I don’t like that half the judges are on OSCAR and the other half is very secretive.”
It’s not clear what percentage of federal judges last year stood by the hiring plan — Simon said the AOC doesn’t keep data on that. But she said they have a “clear indication” that judicial participation in the plan has dropped over time.
While the 10-year-old hiring plan is defunct, it long outlasted previous attempts to formalize the hiring process, said Kirsten Solberg, associate director of judicial clerkships and J.D. advising at Harvard Law School. It worked well for both students and judges in its initial years, when a high percentage of judges opted in, she said, whereas previous plans crumbled almost immediately.
Senior Judge Harry Edwards of the U.S. Court of Appeals for the D.C. Circuit and the late Judge Edward Becker of the Third Circuit conceived of the plan in 2003 to delay hiring until judges had a full two years of law school grades to consider. Judges would wait until Labor Day to consider applications by 3Ls, interview and hire them. (Applications by graduates were never subject to timing restrictions; the plan never applied to U.S. Supreme Court clerks.)
The plan got a boost in 2005 with the introduction of OSCAR. The judges overseeing OSCAR linked the release of the online applications to the judges to the plan’s post-Labor Day kickoff date, said Garaufis, who was on the team of judges who spearheaded OSCAR. That gave judges an incentive to follow the voluntary plan — they wouldn’t benefit from OSCAR’s conveniences if they jumped the gun.
Not everyone was a fan. Judge N. Randy Smith of the Ninth Cir­cuit said it disadvantaged judges in rural areas. Releasing OSCAR applications on a single day created a flurry of interviewing and hiring as judges scrambled to lock down their top prospects, he said. Many applicants didn’t want to venture to his chambers in Pocatello, Idaho, preferring to interview in larger cities with more judges with whom to interview, increasing their chances of receiving an offer.
By 2010, whole circuits had largely abandoned the plan. The final straw came in January 2012, when the D.C. Circuit bowed out, said Carl Tobias, a professor at the University of Richmond School of Law who tracks the federal clerk hiring market. “Once the D.C. Circuit said they wouldn’t honor the plan, then everyone else felt comfortable hiring early,” he said.
By many accounts, last year’s hiring cycle was chaotic. NALP’s Judicial Clerkship Section queried law schools afterward and found widespread unhappiness with the process, the lack of clear information and the growing number of students submitting paper and email applications to off-plan judges. As a result, NALP asked the OSCAR working group to open the system to 2Ls and delink it from the hiring plan. In a nutshell, saving OSCAR was more important than saving the plan, NALP’s Leipold said.
Bringing more judges back into OSCAR should benefit smaller schools with fewer alumni in clerkships, since they often pass along insider information about judges’ hiring plan, said Michael Bressman, associate law professor at Vanderbilt and a judicial clerkship adviser.
But the shifting hiring environment has made it difficult for students and clerkship advisers alike to devise the best application strategies.
“I’m telling students they need to apply now if judges are posting jobs,” Bressman said. “The hard part is that we’re still in the dark about some things. If judges post jobs now, does that mean they will hire right away? Do the judges who are hiring right now need recommendation letters? These are the sorts of things we’re struggling with logistically. What would help the most is to know what everyone is doing.”
Karen Sloan can be contacted at firstname.lastname@example.org.