A Well-Worn Path: Navigating the Road to Judicial Clerkships
When Charles “Luke” McCloud entered Harvard Law School in 2008, he had no idea he would end up serving as a law clerk for Supreme Court Justice Sonia M. Sotomayor.
“No, it’s not something I ever considered,” he said. “It was not something that I had given much thought to at all.”
In fact, McCloud said the idea of clerking hadn’t even crossed his mind until more than halfway through his time at the Law School.
“I decided that I wanted to clerk around the end of my second year,” McCloud said. “I’m not sure I knew exactly what a clerkship entailed before people started thinking about it at the end of the second year.”
He was able to land a clerkship with Judge Paul V. Niemeyer on the United States Court of Appeals for the Fourth Circuit Court of Appeals before moving to D.C. to work at his current law firm, Williams & Connolly. Then, McCloud took another federal appellate clerkship—this time for Judge Brett M. Kavanaugh on the D.C. Circuit, before finally making his way to the Supreme Court as Sotomayor’s clerk.
McCloud’s path from law school student to Supreme Court clerk is the dream of many law students around the country. Clerkships, which entail assisting judges and researching cases, are stepping stones to the most prestigious jobs in the legal world. Less than 40 newly minted lawyers get picked each year, and holding a degree with “Harvard” on it boosts their chances.
The path for some students who wish to clerk is not as smooth as McCloud’s, though. Following the highly selective process, some students find it challenging to navigate making crucial connections to land their ideal clerking jobs, while others face difficulties balancing their career choices with paying off student loans.
Landing a Supreme Court clerkship after graduation is not easy. Excellent grades and prior clerking experience are often prerequisites—and Ivy League pedigrees and law journal experience help.
The year-long position entails assisting a justice and researching cases, and those who aspire to be among the chosen few begin jockeying early for positions and accolades that will one day lead them to the nation’s highest court.
Since 2010, 310 individuals have clerked on the United States Supreme Court for all the current justices as well as retired Justices John Paul Stevens, Sandra Day O’Connor, and David H. Souter ’61 and the late Antonin G. Scalia.
Out of these 310 clerks, 292 had worked as a clerk for either a judge on the U.S. Court of Appeals or another justice on the Supreme Court before taking their most recent clerkship position on the Supreme Court. Only 18 Supreme Court clerks since 2010 had previously clerked for judges at a U.S. district court or for a state court before clerking for a Supreme Court justice.
Procuring a highly coveted position at a lower court first, then, is a well-worn path Law students follow. More than a third of the clerks since 2010 had previously clerked at the United States Court of Appeals for the District of Columbia Circuit in their previous clerkship job. Judges Merrick B. Garland ’74 and Kavanaugh had 25 and 23 of their clerks respectively move on to Supreme Court clerkships, the two highest represented judges.
“There is a perception among law students—and it bears out a little bit in the statistics—that certain judges are more likely to have connections to Supreme Court justices and to send their clerks onto the Supreme Court,” McCloud said. “So I think a lot of students who are thinking about possibly clerking for the Supreme Court are focused on getting their first clerkships with feeder judges.”
Harvard Law students have an advantage. “Feeder judges” like Garland and Kavanaugh often look to Harvard—Garland’s alma mater—when selecting their clerks, and Supreme Court justices up the legal food chain show similar preferences.
Currently, five of the nine justices on the Supreme Court are Harvard Law graduates.
Since 2010, 78 of the 310 clerks on the U.S. Supreme Court came from Harvard Law School, the most number of clerks of any school. Yale Law School had the second representation with 74 clerks, meaning that Harvard and Yale combined for 151 clerks—almost half of all Supreme Court clerks since 2010.
Aaron L. Nielson, a Harvard Law School graduate and former clerk for Supreme Court Justice Samuel A. Alito Jr., said the Harvard name goes a long way.
“Harvard Law School is a name that gets looks. If you’re applying coming out of Harvard it’s helpful. Judges know that Harvard has a good law school,” Nielson said. “Often they know some of the professors there, a good number of them went to Harvard themselves, so coming out of Harvard certainly is an advantage on the clerkship hunt.”
The Law School has two full-time clerkship advisers, according to Kirsten Solberg, associate director of career services and director of judicial clerkships at the Law School’s Office of Career Services.
Harvard’s centuries-long relationship to the country’s top courts has entrenched an extensive network of individuals that students tap into as they go through the application process.
“We have a vast network of alumni judges, former clerks, and current clerks, not to mention faculty and staff, who actively support our applicants,” Solberg wrote.
Some justices are blunt about their preferences for applicants from Cambridge.
“I’m going to be picking from the law schools that basically are the hardest to get into,” the late Justice Antonin G. Scalia said in a 2009 speech at American University’s Washington College of Law. “They admit the best and the brightest, and they may not teach very well, but you can’t make a sow’s ear out of a silk purse. If they come in the best and the brightest, they’re probably going to leave the best and the brightest, O.K.?”
The path from Harvard to the Supreme Court is well-documented—and oft-criticized. Commentators and legal scholars have penned op-eds in publications like the Washington Post and USA Today, questioning the practice of recruiting heavily from Harvard and Yale.
The issue has divided Supreme Court justices themselves. Since 2005, Chief Justice John G. Roberts ’76 and Justices Anthony M. Kennedy, Stephen G. Breyer and Elena Kagan have hired a majority of their clerks from two law schools, Harvard and Yale, according to the National Law Journal articles cited by the Post. .
Justice Clarence Thomas, on the other hand, had hired from 23 different law schools between 2005 and 2017—including many outside of the top tier, according to the National Law Journal.
Thomas said in a 2010 speech that “smart bloggers” had referred to his crop of clerks as “third-tier trash.” That year, Thomas’s clerks hailed from Creighton, George Mason, George Washington, and Rutgers law schools. Addressing law students at the University of Florida, Thomas added, “That’s the attitude you’re up against.”
Even among Harvard Law students, though, the competition is tough.
According to McCloud, some students who wish to pursue clerkships feel that they need to participate in certain student organizations and develop strong relationships with particular professors to get there.
“I think the paths that people take to the Supreme Court are often pretty varied, but there certainly is a perception among students that you need to follow particular steps to set yourself up for success in getting clerkships generally and also specifically at the Supreme Court,” McCloud said.
There is some truth to this perception; Solberg wrote in her email that working for the Harvard Law Review can give prospective clerks a competitive edge.
“Working on a law school journal is common, because it involves substantive editing of experienced attorneys’ work and researching and writing shorter pieces of one’s own,” Solberg wrote.
Making the cut isn’t the final hurdle on the path to clerking at the Supreme Court; for those with hefty loan burdens, finances can pose an additional challenge.
Harvard came in sixth in a U.S. News & World Report ranking of American law schools whose 2017 graduates incurred the most debt. That ranking reported that the Class of 2017 graduated with an average of $162,672 in debt.
The Law School’s Low Income Protection Plan aims to assist students who choose to pursue careers in public interest and other low-paying legal jobs.
Students who participate in the Low Income Protection Plan have to be working in LIPP-eligible jobs which include government positions, clerkships, academic jobs, and low-paying private sector positions. Each month, participants pay back a portion of their student loans proportional to their income, and LIPP covers the rest.
Clerkships, however, comprise a special case. While students are clerking, their LIPP experiences are similar to any other LIPP-eligible job. After their clerkships have concluded, though, LIPP participants must work in another LIPP-eligible jobs or they are required to pay back the assistance they received from LIPP during their clerkship.
“If you take a position that’s not LIPP-eligible immediately after your clerkship, then you’re obligated to repay the clerkship you got,” Kenneth Lafler, assistant dean for student financial services at the Law School, said.
Lafler said this “long-standing policy” remains in place because the majority of clerks go into higher-paying private sector jobs following their clerkships.
“They will typically receive substantial signing bonuses when they go into those higher paying jobs,” Lafler said. “So they are looking at a relatively short period of time when their payments will be difficult to manage without LIPP assistance.”
Several LIPP participants—specifically those who have worked for several years in a LIPP-eligible job prior to clerking—have questioned the policy, though. Tanika P. Vigil, a 2014 graduate of the Law School, worked for an immigrant justice group before clerking for the Colorado Supreme Court. When she finished her clerkship, she took another LIPP-eligible job—but if she had moved to the private sector, she likely would have been obligated to pay back her clerkship.
“It’s an interesting approach because I also had completed several years of public interest service before clerking and they would not consider those years as essentially matching the clerking year,” Vigil said. “I think that’s a little bit concerning because it’s a relatively narrow way of looking at who should receive loan support while clerking.”
Last fall, a group of Harvard Law students and alumni formed the Coalition to Improve LIPP, an organization aimed at highlighting and addressing several issues LIPP participants had experienced while in the program.
Lafler pointed to other ways that students in that situation could pay back their loans, like transitioning into an extended payment plan or receiving an economic hardship forbearance.
“There are ways for people who are going to be in a high-paying position after their clerkship to manage their loans during that time and the tradeoff of having to put their loans in forbearance is more than compensated for by the bonuses they tend to receive when they go into high-paying jobs,” Lafler said.
The Coalition to Improve LIPP recently met with Law School Dean John F. Manning ’82 and published an open letter outlining proposed changes to the LIPP program. Specific to clerkships, the Coalition wrote in a document attached to the letter that they are seeking to change the policy that says a LIPP participant who fails to maintain LIPP-eligibility post-clerking must pay back their loan in full. They propose making loans repayable based on the amount of money that a graduate’s new salary exceeds the LIPP eligible salary.
Joseph R. Kolker, a current law clerk at the U.S. District of Connecticut, has been working with the Coalition on this issue.
“There's an extremely simple solution for this,” Kolker wrote. “Instead of this cliff approach, LIPP could instead use a graduated scale (as LIPP already does in other contexts) to say that if your post-LIPP job isn't LIPP-eligible, then the amount of clerkship assistance that you repay to LIPP is based on the amount by which your salary exceeds your LIPP eligibility cap.”
In response to the open letter last month, Lafler wrote in a statement that he has been meeting with students in the coalition.
“The issues they raise are important and deserve careful consideration, and the Financial Aid Committee is engaged in that process right now,” he wrote.
LIPP participants are allotted a total of eight weeks of “transition time” in which they can receive LIPP assistance for the time between jobs. The transition assistance can be helpful to many students, but Rachel J. Sandalow-Ash ’15, president of the coalition, said that in the case of clerkships, it isn’t always enough.
“Clerkships have very definite start and end dates; those don’t always perfectly align with when a graduate’s next job starts or ends, and that leaves some number of weeks in between those jobs, and during that time graduates are whittling away at their eight weeks that they get over the course of the program,” Sandalow-Ash said.
Lafler again recommended that graduates put their loans into forbearance or defer them based on economic hardship.
Madison E. Condon, another Law School graduate and former clerk for Jane L. Kelly of the Eighth Circuit of the United States Court of Appeals, said in an interview that the fear of student loans certainly has deterred some Law graduates from entering into public interest careers.
“I definitely know a friend who went into a law firm job that would not have otherwise because of loans,” Condon said.
Condon took a LIPP-eligible job after her clerkship, so she is not required to repay the assistance LIPP gave her while she was clerking. Living in New York City on the salary of a LIPP-eligible job, though, has proven challenging, she said.
“I am on LIPP now. My salary is—I’m on a pretty standard fellowship salary which is $65,000, but I live in New York City so half of my after-tax income every month goes to rent and paying my percent of these loans back,” Condon said. “I’m 31, I just got married, it seems basically impossible that I would be able to stay in New York City and have kids on this income. That seems truly impossible.”
Still, Condon added that LIPP is extremely beneficial in supporting the work that she does.
“I do get a big check from Harvard twice a year which definitely is a help. Without LIPP, I couldn’t do this job, for sure,” Condon wrote.
—Staff writer Aidan F. Ryan can be reached at email@example.com. Follow him on Twitter @AidanRyanNH.
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