Several years ago a partner and I rushed to the airport to catch earlier flights after a meeting ended sooner than expected. We both had gold frequent flier status on the same airline, but he got in the regular line while I got in the line for frequent fliers. He got upgraded and I didn’t. I realized afterward that a gold in the regular line is special, but a gold in the gold line is not.
That incident came to mind recently when a Vanderbilt Law Review drew considerable press attention1 with a study of apparent ideological patterns in the hiring of U.S. Supreme Court clerks by law firms.2 But the data tell a more interesting story, one that is difficult to account for—a small number of law firms attract the lion’s share of Supreme Court law clerks.
This phenomenon is not confined to Supreme Court clerks. In the more than 40 years that I have been observing and participating in the recruiting process, lemming-like behavior among law students has always been present. Most law firms experience phases in which they are “hot” or “cold” at a particular law school unrelated to any changes in how the firm is as a place to work. But in the case of Supreme Court clerks, lemming-like behavior has been taken to an extreme.
The Vanderbilt data show that from 1990 to 2006 there were 10 large law firms that hired 10 or more Supreme Court law clerks.3 Two firms, Wilmer Cutler Pickering Hale and Dorr and Sidley & Austin, hired 40 and 25, respectively.4
Far be it for me to suggest that lawyers with such gilt-edged credentials may not be the sharpest tools in the shed, but a Supreme Court clerk joining a firm with a dozen former Supreme Court clerks already on the premises is not making a good career move.
This is not, of course, because these firms are bad firms. On the contrary, they are excellent. All 10 of the large firms on the Vanderbilt list are in the top 66 in profitability and six of them are on The American Lawyer’s “A” list of “the top firms among the nation’s elite”—nice places to work, soundly profitable, with strong ratings in diversity, pro bono and associate satisfaction. The problem is that by joining firms awash in former clerks, the Supreme Court law clerk devalues his or her best credential.
At some level, bright law clerks have to sense that they are devaluing their clerkship credential, but they do it anyway. Why? The law clerk breathing the intoxicating air of the Supreme Court dreams that he or she will join the ranks of the great advocates before the Court. Filled with this ambition, the law clerk naturally assumes that the path to this goal may be found in law firms with a Supreme Court practice.
This is for the most part a mirage. There are very few argument opportunities for lawyers in the private Supreme Court bar. The Court accepts for review only about 100 cases a term, and many of these involve government entities which do not hire private lawyers. Many others remain in the hands of the lawyers who grew up with the case.
If the case is to be pried away from the lawyers who handled it below, it is because the client is persuaded that what the case needs is a top Supreme Court advocate. At Wilmer Hale, that would be Seth Waxman, a brilliant appellate advocate and former Solicitor General. At Sidley & Austin, that would be Carter Phillips, who has argued 60 cases before the Court, tops among current advocates. So even if the Supreme Court practice the law clerk joins is successful in attracting a few cases each term, the oral arguments are going to go to the practice heads.
The number of lawyers in private practice who can claim that most of their work is at the Supreme Court probably does not much exceed the number of law clerks working at the Court in any one term. And the number who regularly argue before the Court is certainly smaller—certiorari petitions greatly outnumber merits briefs, and many practitioners spend most of their time in the more attenuated activity of writing amicus curiae briefs. It is not, as Gertrude Stein once said of Oakland, that there is no there there, but what is there is very narrow.
A lawyer attracted by a U.S. Supreme Court practice would do better to focus on developing a general appellate practice.
If the Supreme Court clerk is to turn away from the firms already employing several former clerks, where is he or she to turn? The upper end of the profitability ranks and the “A” list include numerous firms with few if any former Supreme Court clerks in their ranks. That is where the opportunity lies.
That is not to say all such firms are equal for this purpose. For a number of reasons, it is important to go to a firm that is known to be strong in litigation.
First, a law school degree and a couple of clerkships do not a fully-developed lawyer make. The Supreme Court law clerk will have a lot to learn and needs experienced role models. Indeed, one of the reasons to join an established Supreme Court practice is to learn from a Seth Waxman or Carter Phillips, although, as noted, the line to carry their bags may be long.
Second, the practice at busy litigation firms will present appellate opportunities in the ordinary course.
Third, the law clerk may become an instant sage, consulted by colleagues and clients on matters of judgment usually reserved for senior partners: What are the chances that a certiorari petition will be granted? How is a pending case likely be decided? Rather than one among many, you stand out. You’re the expert. You are on your way to establishing a successful appellate practice and over the course of a career may get a couple of chances to argue in the Supreme Court.
But if it is still your dream to spend your career arguing in the Supreme Court, go to the Solicitor General’s office and stay there. Larry Wallace did that and argued 157 cases in a 35-year career.
George A. Davidson, a partner in Hughes Hubbard & Reed and former head of the firm’s litigation section, is a Fellow of The American College of Trial Lawyers. He was a clerk in the U.S. Court of Appeals for the Second Circuit.
1. New York Times Dec. 22, 2009.
2. Nelson, Rishikof, Messinger and Jo, “The Liberal Tradition of the Supreme Court Clerkship: Its Rise, Fall and Reincarnation,” 62 Vanderbilt L. Rev. 1749 (2009).
3. 62 Vanderbilt L. Rev. at 1814.
4. The other eight large firms are Covington & Burling (11), Jenner & Block (11), Jones Day (20), Kirkland & Ellis (22), Latham & Watkins (12), Mayer Brown (10), O’Melveny & Myers (12), and Williams & Connelly (12). In addition, Supreme Court boutique Kellogg Huber hired 18 and trial-oriented boutique Bartlit Beck hired 10 clerks.