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Judges compete for law clerks on a lawless terrain


NEW YORK » Federal judges are entrusted with interpreting and applying rules fairly and consistently. Except, it seems, when it comes to hiring their own staff.

The judges compete aggressively each year to recruit the best law students to work for them as clerks, prestigious positions that involve research, counsel and ghostwriting. But the process has become a frenzied free-for-all, with the arbiters of justice undermining each other at every turn to snatch up the best talent.

Based on rules that were intended to curtail shenanigans, judges hiring for the 2012 season were supposed to begin interviewing third-year law students no earlier than Thursday, Sept. 15 at 10 a.m. But somehow, at the federal courthouse in downtown Manhattan, most of the interviews — and job offers— had already concluded by 9:45 a.m.

Indeed, hoping to leapfrog their peers, most judges actually began interviewing hours (if not days or months) earlier. Many made so-called exploding offers, forcing candidates to accept or decline a job offer on the spot (and it’s a “Godfather”-style offer: one they can’t really refuse). Some judges extended offers by phone, which is even more nerve-racking for students because cellphones are not allowed at many courthouses.

At the Manhattan courthouse, anxious young applicants in stiff new shoes were darting in and out of the building all day, checking and rechecking their phones with the security guard, just so they could listen to their voice mail between interviews.

They had, after all, heard the warning tale of an unlucky student from the year before, who didn’t answer the phone because he was on a flight to another interview. The story ends with two voice mails: the first offering a job, and the second revoking it.

This recent chaos in the hiring system, particularly intense on the East Coast, has been fed by the competition between judges, by the relative scarcity of top law jobs, by more applications from those who have already finished law school and by students pressuring for earlier interviews out of fear that no slots will be available if they are not first. The result is a pressure cooker in which law students have little control over their fates, and even the standard-bearers of American justice are expected to break the rules.

For decades, judges have tried to get ahead of one another to swipe the top graduates from schools like Yale and Harvard, goading some judges to extend offers before students had even completed their first year of law school.

“I’m not into cartels or collective action or things like that,” says Alex Kozinski, chief judge of the Court of Appeals for the Ninth Circuit in San Francisco, who has vocally criticized efforts to regulate the recruiting process. So when does he start recruiting? “At birth,” he says.

There have been several attempts to levy self-enforced rules, similar to those used by the NCAA for recruiting young athletes, with the most recent system created in 2003. While none of the students interviewing at the federal courthouse in downtown Manhattan that Thursday wanted their names published for fear of jeopardizing their careers, many expressed frustration with the process.

“It’s insane and has been driving everybody nuts for years,” said one student from a top 20 law school who had three interviews in New York that day, and three others across the Midwest this week. “But I don’t really see any way to fix it.”

Students are willing to jump through the hoops because the jobs are so precious. A clerkship is possibly a prerequisite for one’s own judgeship someday and a ticket to a higher salary at a white-shoe law firm. And while the process has always been competitive, it has become more frenzied in the last few years as law firm jobs have dried up and young lawyers have sought shelter in the public sector.

Clerkships traditionally go to third-year law students, but now more graduates are also competing for (and getting) these positions. The recruiting restrictions officially apply only to current students, so judges can hire graduates whenever they want without being accused of cheating.

Last year 382,828 applications were filed electronically for clerkships with 874 presidentially appointed federal judges, each of whom typically hires one to three clerks each year. (Some applications were submitted in hard copy only, but those numbers are not tracked.)

By 10 a.m. that Thursday, the official starting time for interviews, students were reduced to begging for positions in 2013. At least one judge was interviewing candidates for jobs in 2014.

No matter how far in advance an offer comes, schools pressure students to never, ever turn it down or even ask for time to consider it. Hesitating — let alone declining — is considered disrespectful, if not insulting, and can damage an entire law school’s reputation in the clerkship market.

“The consequences are definitely felt by the school more so than the student,” said Daniel Richman, a law professor and faculty clerkship adviser at Columbia Law School.

This etiquette code means students end up working for the judge that makes them an offer first — causing students to pressure judges to move interviews earlier and earlier.

Increasingly, judges are choosing to ignore the plan and just recruit on their own schedule. After all, there are no sanctions for breaking the rules; federal judges have lifetime tenure unless they commit an impeachable offense, and recruiting clearly is not a crime. On the other hand, there are negative consequences for those who play by the rules.

“I tried to follow the system, waiting until Labor Day or whenever it was to accept applications,” said Richard Posner, a judge on the Court of Appeals for the 7th Circuit in Chicago who said he now hires “off-plan.” “I made appointments to interview several people. Then one by one they called up and canceled their interviews because they had accepted offers before we were even supposed to start interviewing.”

Outside the Manhattan federal courthouse, one lucky student — who had just snapped up a clerkship and triumphantly reclaimed his cellphone — said he was looking forward to canceling a few of his more far-flung interviews. Then he would call his parents, and then he would negotiate with the airline to get a refund on his tickets.

“But first,” the student said, “I have to go throw up.”

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