Inside Judicial Chambers: How Federal District Court Judges Select and Use Their Law Clerks

Article excerpt

I. INTRODUCTION

In recent decades, United States Supreme Court law clerks have not suffered from a lack of attention. From allegations that the Justices' law clerk hiring practices are riddled with gender and racial bias (1) to debates over the level of influence wielded by clerks, (2) legal scholars and journalists have remained intrigued with these "junior justices." Law clerks on the lower federal and state courts, however, have escaped similar scrutiny. This disinterest is particularly evident when we consider federal district court law clerks. With the exception of a recent flurry of articles debating when federal district court judges should begin the interviewing process, (3) the majority of articles by or about federal district court law clerks in the legal literature are the now-standard "tribute pieces," in which former law clerks extol the virtues of retired or deceased district court judges. (4) Filled with touching or humorous stories about chambers life as well as predictions for their judges' place in the pantheon of great jurists, these articles seldom discuss how the authors were selected or what job responsibilities they were assigned.

On one hand it is not terribly surprising to discover that lower court clerks have been largely ignored by legal scholars, social scientists, and journalists. All are interested in the exercise of political power, and no other court in the land issues opinions of such sweeping scope and salience as the Supreme Court. Thus our attention is inexorably drawn to the Supreme Court law clerks who are involved in shaping judicial decisions in such critical areas as free speech, reproductive rights, and federalism--and some would suggest--wield their own independent influence over these decisions.

We are not suggesting that Supreme Court law clerks are not worthy of study. In this Article, however, we argue the literature's narrow focus on the Supreme Court law clerk has led to a failure to examine the important role that federal district court law clerks play in the federal judiciary. As recent caseload statistics demonstrate, the federal district court is the court of last resort for most plaintiffs and defendants; in the twelve month period ending September 30, 2006, 259,541 civil cases (5) and 88,216 criminal cases (6) were filed with the United States District Courts. During that same period, only 66,618 appeals were filed with the United States Courts of Appeals, (7) 15,246 of which were criminal appeals. (8) In other words, less than twenty percent of cases filed in federal district court were appealed to the intermediate appellate courts. In 2005, the Supreme Court had only 9,608 cases on the docket and heard argument in ninety cases. (9) Ultimately, less than one percent of all cases originally filed in federal district court were reviewed by the Supreme Court.

Admittedly, opinions issued by federal district court judges do not have the scope or impact of opinions written by Supreme Court Justices; lower court law clerks do not have the opportunity to craft legal principles which will govern a nation or resolve critical policy debates. Nevertheless, in helping process thousands of cases a year, an argument can be made that the hundreds of federal district court law clerks potentially have more day-to-day influence over individual litigants and cases than approximately three dozen Supreme Court law clerks.

This Article does not propose to determine whether federal district court law clerks wield inappropriate levels of influence. Instead, our goal is to take the important first step of understanding what criteria are used to select federal district court law clerks and what job duties are assigned to those clerks--important descriptive data that has not been previously collected. If we find that federal district court law clerks are given the most mundane of responsibilities (such as cite checking, filing, and coffee making), then the issue of influence need not be reached. …