April 2008
Federal Courts to Employ Fewer Career Law Clerks
By Katerina E. Milenkovski, LITIGATION NEWS Associate Editor
Staffing restriction is driven by budgetary considerations
The Judicial Conference of the United States recently approved a policy change intended to save the federal judiciary tens of millions of dollars over the next decade. A key component of that change restricts federal judges to just one career clerk per chambers—a retreat from the recent trend in many jurisdictions to employ multiple career clerks.
The rationale behind the change is that term clerks, who typically serve for only one or two years and are usually hired out of law school, cost significantly less to employ than career clerks. The 291 existing career clerks now in chambers with more than one career clerk will be able to retain their status, with the consent of the judge to whom they are assigned. Moreover, they will be able to remain career clerks even if their judge dies or retires, provided that another judge is willing to take them on.
When asked how this rule revision might affect the administration of federal courts, Lawrence D. Rosenberg, Washington, DC, cochair of the Trial Practice Committee of the Section of Litigation, points out that “practices with regard to career clerks vary from place to place. In some places it is a way of life; in others, it is rare to have career clerks. In the District of Columbia, for instance, it is significantly less common to have career clerks. I clerked for the Third Circuit out of law school and I don’t believe any of the judges there had career clerks at that time, either. On the other hand, in Florida, it is very common to have career clerks and most judges do.”
“I clerked for two wonderful federal judges, one on the Court of Appeals and one on the District Court,” says Loren Kieve, San Francisco, cochair of the Section’s Federal Practice Task Force, “and neither judge had a career law clerk. In fact, most of the judges I know use lawyers who have graduated relatively recently from law school. In my experience, career clerks are the exception, not the rule. In light of this, I don’t see why having only one career law clerk will in any way impact the judges who have them. It certainly should not affect the quality of or the time it takes to produce a first-rate opinion.”
Rosenberg agrees: “While I would say there are some advantages to having career clerks and some disadvantages, I don’t think having only one career clerk will be a huge disadvantage to judges in most circumstances.” However, he notes that career clerks, because of their experience and knowledge of the court system, may be of more assistance in the sea of administrative and procedural red tape that can exist in some complex cases. “This is particularly true if the clerk is allowed to interface with counsel for litigants,” a practice Rosenberg points out also varies by jurisdiction. “Some judges don’t want clerks to deal with counsel for litigants directly.”
In Kieve’s experience, “discovery disputes are, for the most part, handled by magistrate judges or district judges themselves, and I have not seen law clerks taking a major role in deciding these issues or any others.”
Both Kieve and Rosenberg believe that the use of recent graduates as term law clerks adds a fresh perspective to the decision-making process. “The fact that all the Supreme Court‘s clerks are non-career, relatively recent graduates would seem to prove the point,” says Kieve.
“I sure hope that the switch won’t affect the quality or timeliness of judicial decisions,” says Rosenberg. “Some judges have a great deal of comfort and trust with their career clerks, which may ultimately help with efficiency. But the enthusiasm and energy that new clerks bring to the job may ultimately outweigh any inefficiencies that come from their learning curve.”
