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Lucky 36: What It Takes to Land a Supreme Court Clerkship

By Stephanie Francis Ward

October 1, 2012, 1:29 pm CDT

Podcast Transcript:

This ABA Journal podcast is brought to you by WestlawNext, the legal research platform chosen by over 40,000 legal organizations for their tradition of editorial excellence combined with the most advanced technology. Learn more at WestlawNext.com.

Stephanie Francis Ward: About a thousand people apply for clerkships with the U.S. Supreme Court each year, and most if not all have stellar academic pedigrees. What separates the 36 who make the cut? I’m Stephanie Francis Ward, and that’s what we’re discussing today at the ABA Journal Podcast.

Joining me are Hanna Stotland, an associate director of the Center for Career Strategy and Advancement at Northwestern University School of Law, where she specializes in judicial clerkship advising; and Jay Wexler, a constitutional law professor and author, of Boston University School of Law, who clerked for Justice Ruth Bader Ginsburg.

First question for the two of you–and Hanna, why don’t you take this first–if you could give one primary tip to applicants when they’re applying for U.S. Supreme Court clerkships, what would it be?

Hanna Stotland: Talk to knowledgeable people, and take their advice. Because this is a process where you can have a pretty good idea before you begin of what your chances are. And there are people out there who are happy to help you at your law school, so take advantage of that advice. And you need to have your law school behind you to have a shot anyway, so that’s my advice.

Stephanie Francis Ward: Well, I’m curious given that that’s your advice, because there’s some people who think, “Well, I’ll just go do this on my own.”

Hanna Stotland: I wouldn’t say they go do it on their own, because they should at least know that they’ll need letters of recommendation. But I think there aren’t a thousand reasonable candidates each year. I think a lot of those candidates are not gonna be considered very strongly. I’d be surprised if there’s more than 200 or 300 students who are really in the running nationally, maybe fewer than that. And so I think you can save yourself a lot of trouble and headaches if you seriously take the advice that you’re given.

Stephanie Francis Ward: What does it mean–can you give me an example of, like, what would be in the running?

Hanna Stotland: Well, it depends on the law school. This is a very hierarchical profession. I’m sure that listeners are familiar with that; and this is perhaps the snobbiest, if you will, job in the profession. And where you went to law school is enormously important; and the majority of clerks went to a small handful of law schools, four or five law schools. And so for that reason I think candidates really need to be realistic about what achievements are necessary at their law school in order to be in the running.

Stephanie Francis Ward: Okay. And is there a way if someone wants to do this and you think that they probably wouldn’t be in the running, I mean, how do you let them down gently?

Hanna Stotland: Well, that’s part of the challenge of being a counselor. I encourage students to aim high but not to waste their time. And so I think there’s a line between “this is a reach” and “this is impossible.” I myself did not apply because I believed it was impossible for me, and I went to Harvard Law. And I clerked on the Seventh Circuit.

But realistically, I knew what was expected of those candidates; and I thought it wasn’t a good use of my recommender’s time to apply.

Stephanie Francis Ward: Okay. Now, Jay, where you did make the cut, I’m betting that students probably come to you for advice when they apply. What are some of the things you tell them?

Jay Wexler: My knowledge of the whole process is a little old because I clerked a number of years ago, and I don’t get a lot of students who ask me advice on clerking for the Supreme Court. I don’t know how many people have even applied from Boston University where I teach. A few, but I don’t think we–if we’ve ever had a clerk, I–it hasn’t been since I’ve been teaching here. ’ So it’s not part of my ongoing kind of advising policy, but what I would tell them is I would tell them the same thing that I tell people who are applying for lower federal court clerkships, which is to try to take classes and get to know professors who might be good recommenders, who might know the judges, who will be willing to comment in detail on your writing, who’ll be willing to kind of go to bat for you with the Justice or Judge by giving them a call or writing just a superb letter.

And I would tell them that they have to start writing papers. That you have to get into small classes that are like seminar classes, write papers, let the professor know how well you write and what the quality of your ideas are so that he or she can really comment on something unique when they write the letter to the judge or justice.

Stephanie Francis Ward: Do you have a sense, Jay, of how long it would take a professor to write a letter of recommendation for someone? I know Hanna mentioned you kind of want to be mindful that you don’t waste the professor’s time. How much of a job is it?

Jay Wexler: We get really good at it–at least I have. I think it probably differs on the professor, but it’s part of our job. I think everybody who I teach with realizes and recognizes that it’s part of their job to write recommendations for students, particularly in the economy today. And we’ve written many, many of them; so it’s not like we have to think about what is–goes into a letter of recommendation and think about it anew every time.

So we know how to write letters, so it’s really not that hard honestly. You as a student want to send a resume, and I always ask the student even if I haven’t had them in a seminar class to send me some paper that they’re written so I can look at that. And I can make a comment on that, and it’s really not that hard honestly. Now, I’m gonna get 500 emails tomorrow asking me for a recommendation so–

Hanna Stotland: And the letter itself doesn’t necessarily look that different depending on what judge or court you’re applying to. So if you’re gonna make it to the Supreme Court, chances are that you have letters from your professors saying “this is one of the outstanding members of this class” or perhaps “one of the top students I’ve taught in my 30 years as a professor,” that sort of thing.

And that letter has multiple uses, and certainly any judge in the country is gonna respect that letter. It doesn’t have to be Supreme Court specific; although for many successful candidates, you may have a professor who’s recommended many successful clerks in the past, and perhaps can address a particular justice and say, “This clerk is similar to Joe Smith whom I recommended and who worked for you 10 years ago. And here are the qualities that she shares with that individual who served you well as a clerk in the past.”

Stephanie Francis Ward: Okay. And I just want to tag on what you just said about they could say this is one of the top students I’ve have worked with in my entire career. Is that something that would be a separator, you think?

Hanna Stotland: Certainly, and it’s something that would be almost required at the majority of American law schools. You have a small handful of schools that place multiple clerks on the court every year, and everyone outside that pool the competition is yet more fierce. And at least somebody at your law school–chances are if you’re–let’s say some–you’re in the top tier but not in the top 10 or top five schools that place Supreme Court clerks.

If you are trying to become the first Supreme Court clerk from your law school, I would expect not only professors but probably the Dean of the school to be in touch with the justices saying, “This is the greatest one we’ve ever had. This is why she should be the first Supreme Court clerk from this school.”

Stephanie Francis Ward: But I would imagine at the same time from the professor’s point of view you have to be careful with that term because–

Hanna Stotland: Oh, absolutely.

Stephanie Francis Ward:–if you use it every year, they’re gonna be like, “Wait a minute…”

Hanna Stotland: Absolutely.

Jay Wexler: I put that in every letter, yeah.

[Laughter.]

Stephanie Francis Ward: Hanna, another question for you. If someone just really wants to clerk on the Supreme Court, generally, do you encourage them to apply with all the justices?

Hanna Stotland: Yes, that’s the etiquette. I’m not sure how long that’s been in place; but certainly since I was a law student a little over 10 years ago, there was a presumption that a Supreme Court candidate applies to all justices. Realistically, is someone gonna be an equally strong candidate in every chambers? Probably not. But that is kind of the cultural expectation for what the smart candidates do.

Stephanie Francis Ward: And why do you say that they won’t be as strong in every chambers?

Hanna Stotland: Well, there’s a couple of related issues there. One is what I would call politics; what others might call philosophy. There’s an obvious political or philosophical divide on the Supreme Court, and some justices feel more strongly than others about taking that into consideration.

And some justices may want to have a mix of points of view in their chambers, or they may want to have a lot of their own philosophical allies in their chambers. Even if the justice isn’t thinking solely about the philosophical mix in chambers, the pathways, if you will, the particular professors and what we call feeder judges, members of the Federal Court of Appeals, whose clerk alumni go on to clerk on the Supreme Court, those feeder judges have relationships with particular chambers.

Stephanie Francis Ward: Okay. And Jay, from your experience on the Court–and you said it was awhile ago but nevertheless–what are the justices really looking for do you think with their clerks?

Jay Wexler: I think that–well, that depends on the justice.

Stephanie Francis Ward: Okay.

Jay Wexler: But certainly somebody who they can rely on to analyze the case and get them ready for the oral argument in the case, and somebody who they can trust to carry out their wishes when working on opinions. Obviously, somebody who’s able to talk about ideas related to the cases with the justice.

Somebody they feel comfortable with to the extent that they can determine that in the interview. So they’re looking for somebody who’s very legally talented but also quite willing to carry out the wishes of their boss.

Stephanie Francis Ward: Carry out their wishes. Can you expand on that for me?

Jay Wexler: Well, it’s–people in other professions look at the clerkship in the legal profession and think it’s kind of strange that people a year or two years, these days maybe three or four or whatever years out of law school have these positions working for federal judges and the Supreme Court. And why should somebody with such little experience have such a big responsibility? And the reason is because at that point in one’s career, you’re willing to–you haven’t developed your own kind of strong feelings about what you want to do; and you’re willing to, basically, be at the whim of your boss. And that’s what you have to do as a clerk. So people who’ve come to clerking after working out and having their own practice and spending 10 years at a law firm or whatever tend not to work out very well because they have their own views.

They’re headstrong. They’re used to doing their own stuff, and they can’t kind of do only what the justice wants and follow his or her directions completely and that’s what the justice needs.

Stephanie Francis Ward: And from your experience, going back to the recommendation issue, what it sounds like to me is that it certainly helps if a person making the candidate’s recommendation has a connection to the justice. Would you agree with that?

Jay Wexler: I think that’s absolutely true. I mean, my own case I happen to have first-year Constitutional Law with the professor who was also Justice Ginsburg’s constitutional law professor. So that helped.

Stephanie Francis Ward: Who was that professor?

Jay Wexler: Gerald Gunther, who’s–

Stephanie Francis Ward: Oh, okay. Yeah.

Jay Wexler:–who has passed away, but he sent a number of clerks to Justice Ginsburg. And I also had another recommender who helped prepare her for–Kathleen Sullivan, who helped prepare Justice Ginsburg for her confirmation hearing. And I–and totally randomly I had another professor who I was a research assistant for, whose college roommate at Cornell was Marty Ginsburg and so knew her.

And so I got really lucky. And to answer your question, I think yeah, it’s very, very, very helpful to have a professor or to have worked for a judge who is close to a justice and who the justice can rely on to recommend people that the justice is going to have a successful relationship with.

Stephanie Francis Ward: Hanna, would you like to add to that?

Hanna Stotland: I agree with everything that’s been said. It’s critical to have those relationships. Every judge with a clerk is really relying on that clerk. They are sort of the external hard drives for the judge’s mind. And it’s more work and more responsibility than one mind can handle, and that’s why a chambers has multiple attorneys in it.

But as Jay said, they need to be subservient in a sense to the senior attorney in the chambers; and that level of trust is really enhanced if someone that you’ve known for 30 years says, “Bruce, I know this kid. He’s gonna do right by you.” And when it’s this competitive, you really–you have to have that.

Stephanie Francis Ward: Okay. And speaking of it being very competitive, Hanna, do you think it’s possible for someone’s family or friend connections to get them an interview with a justice?

Hanna Stotland: Perhaps. I don’t know of any interviews that have taken place with people who were not already, let’s say, in the running numerically. But I am sure that of the qualified candidates, things like somebody’s college roommate, as Jay was saying, the more sources of trust and information that that justice has, the more likely they are to take a look at that candidate.

Stephanie Francis Ward: Do you ever see situations where an applicant might use a very respected Supreme Court advocate as a recommendation?

Hanna Stotland: Oh, sure.

Stephanie Francis Ward: Okay.

Hanna Stotland: Yeah, absolutely; absolutely. I think that’s more common if someone perhaps has been working in D.C. for a couple of years and has been an associate with that advocate. And I guess there’s a trend now of the justices hiring Bristow Fellows who are highly accomplished young law school graduates who work in the Office of the Solicitor General, who is the Supreme Court advocate for the U.S. government.

And so indirectly, I imagine that those Bristow Fellows in their successful applications are relying on a recommendation, I suspect, from their supervisor in the SG’s office.

Stephanie Francis Ward: Okay. And is it possible to get a Supreme Court clerkship if you go to a second tier school?

Hanna Stotland: It has been done.

Stephanie Francis Ward: Okay.

Hanna Stotland: And it depends on the justice. Justice Thomas has been a leader in this area as far as hiring students who were the best graduate ever from a law school that hasn’t placed a clerk before. I’ve been focusing on this because we have a very strong candidate from Northwestern who transferred to Northwestern from George Mason University. And George Mason did place a clerk with Justice Thomas a few years back who had clerked on the Fifth Circuit prior to his time with the Court. And so I’m hopeful that perhaps this student who has George Mason on his resume although he’s a Northwestern grad can maybe follow in those footsteps to Justice Thomas.

Stephanie Francis Ward: And is Thomas the only justice you have seen do that so far?

Hanna Stotland: I’d have to look at the list. As far as law schools out of the–out of tier one I think he’s the only one. Jay, do you know of any others?

Jay Wexler: I have a feeling that there may have been a couple here and there, but I don’t know for sure.

Stephanie Francis Ward: Okay. Let’s go to Jay. Besides academic achievement, what other factors do you think might help a candidate get a Supreme Court clerkship interview?

Jay Wexler: Besides academic achievement. Well, we’ve covered the connection thing.

Stephanie Francis Ward: Perhaps I should say in addition to academic achievement.

Jay Wexler: Right. Well, as Hanna was saying, from what I understand, and what she said is consistent with what I’ve understood, is that they’re–more and more you get people who are not coming directly from an appellate clerkship, who are doing something else. The Bristow Fellowship makes a lot of sense.

And I think we also–when I worked at the Office of Legal Council, which is also in the Justice Department, and we had one or two people go from that job to the Supreme Court. So having a little bit of very high-level experience probably helps some candidates. I’m wondering whether things like getting a PhD help. My guess is probably not. What else might there be? I don’t–

Hanna Stotland: I think some justices take people skills into consideration; although, what people skills they’re looking for in a particular case will change. They want someone who is not gonna create drama in chambers and so on. Thing is the people with personality problems are likely to have–it’s harder to build that perfect record in law school if you’re making people angry.

Jay Wexler: That’s true–

Jay Wexler:–though it happens.

Hanna Stotland: Yeah, yeah. In terms of having those glowing, loving, tear-stained recommendation letters from elite professors, if that professor has the idea that you’re kind of a pompous jerk, that’s an impediment. The justices definitely want someone who’s going to work in harmony with the other staff in chambers. But because each chambers is unique, a personality that fits in one chambers may not fit in another.

Stephanie Francis Ward: Well, I’m curious if you think that maybe there’s some sort of code in a professor’s recommendation letter that the candidate might be a bit of a pompous jerk at times.

Hanna Stotland: I’ve seen letters with torpedoes in them.

Stephanie Francis Ward: What would a torpedo be?

Hanna Stotland: I’m trying to think of a good example. This is someone who probably wouldn’t be Supreme Court candidate, but I’ve seen a letter that noted that this student was very bright but often came to class unprepared.

Jay Wexler: Oh.

Stephanie Francis Ward: Oh, my.

Hanna Stotland: That’s the worst torpedo I’ve ever seen.

Jay Wexler: Yeah, I think in that case the professor should say, “I don’t really feel comfortable writing a letter.”

Hanna Stotland: Yes, and I–after I saw that, I called the professor and said, “I wonder if you’re interested in withdrawing and maybe telling the student that they should find another.” Because obviously, I can’t tell the student what’s in the letter; but I can call the professor and say, “Maybe you’re not the right recommender for this student.”

[Laughter.]

Stephanie Francis Ward: Jay, what do you think about that sort of the torpedoes or–

Jay Wexler: Well, I’ve heard that too. I wouldn’t do it I don’t think, unless it was unconscious. I mean, when it gets to that level, to the Supreme Court level, and there really only are a certain set of students that you can really truthfully recommend to the justices, I would imagine it’s kind of a more difficult, tricky situation; but I really haven’t faced it myself. So I don’t know what I would do or how I would handle it. But I’m sure at Yale and Harvard they have to struggle with this.

Hanna Stotland: Again, when there are these personal relationships, this may happen by a phone call rather than in a letter. And in a phone call the professor might say, “Bruce, here’s the story with this guy” and maybe compare them to a third party that both the professor and the justice know and say, “He’s brilliant. But I’ve gotta give you a heads up about this.” And that’s likely something that would happen in a phone call.

Stephanie Francis Ward: And I want to go back to something both of you mentioned. You were talking about other experiences like perhaps a PhD or something like that or time with the SG, or the Bristow Fellowship, rather. I know law schools it seems like it’s pretty common now. They want someone with a little bit of real life experience before they come in. Are you seeing that the Court favors that as well?

Jay Wexler: You’re saying that law schools favor that in applicants?

Stephanie Francis Ward: Yes. Does the Court favor that as well do you think–as opposed to someone who just goes straight through?

Jay Wexler: When I was there, it was sort of–it was starting to turn a little bit where experience was being valued more than before. And I–but Hanna would be able to speak to that.

Hanna Stotland: Yeah, that seems to be a trend in federal clerkships in general; and there are more people who are spending a couple of years out of law school either at a firm, in a fellowship, etc., before they clerk sometimes because they applied for clerkships as a 3L and there was a disappointing result.

And so they come back and give it another shot, and I think that trend has reached the Supreme Court. In terms of–the Supreme Court is in the habit of hiring candidates who are currently in particular highly thought-of federal appellate clerkship, and they’re hired for the term after that. Well, that group that’s in the elite federal appellate clerkships now includes more of what we would call alumni applicants, folks who had a couple of years of post-law-school work experience before the clerkship.

And we’re also seeing a trend toward students who have done more than one clerkship prior to applying to and getting a position on the Supreme Court, sometimes with two different federal circuits, sometimes with a district court and then a circuit court.

Stephanie Francis Ward: Okay. Let’s move on to the interviews. A question for both of you, I mean, given the candidate’s academic strength, do you think it’s the interview that really, really makes a cut for the candidates to get the job?

Jay Wexler: I’m sure that’s gonna differ based on the jobs the justice. Justice Ginsburg is the only one I really know about–interviewed very few candidates. And my interview–I got the job of course. But I–there was–I spent about five minutes in the interview talking about a case that I thought she was asking me about, but it turned out it was another–a different case with a similar name.

And it–that I was talking about the wrong case for about five minutes, and I still got the job. So I don’t know what that says about the process.

[Laughter.]

Stephanie Francis Ward: How did you–well, how did you prepare for the interview? I know what I have heard about Justice Ginsburg is that when you speak with her, be prepared for long pauses in the conversation–

Jay Wexler: Yes, that’s–

Stephanie Francis Ward:–because she’s thinking.

Jay Wexler: Yeah, and you want to not interrupt the pause too soon. So it’s very–it’s tricky. It’s a–

Stephanie Francis Ward: Yeah, I mean, that’s kind of what everyone says about Justice Ginsburg in terms of speaking with her. But how did you prepare for your interview? You probably knew that going in, and you were ready for those pauses, right?

Jay Wexler: Yeah. I don’t know. It’s very hard to prepare for interviews with the judges. I knew that she wasn’t gonna be asking me all sorts of–it wasn’t gonna be, like, a grilling session like some of the judges and justices out there. So I don’t know. I read dissents. That–I think the best thing to do to prepare for a clerkship interview of any sort is to read the judge or justice’s, who you’re gonna interview’s dissents and–because then you get to see–hear them speaking for themselves, you know, or separate opinions, maybe it’s a concurrence, so I probably did that. And I think I remember trying to figure out who my favorite justice was because somebody told me that they might–somebody might ask me that. So I tried to figure out who my favorite justice might be, but I can’t think of–

Stephanie Francis Ward: And it will be bad for them to say her?

Jay Wexler: Yeah, it would be, or one of her colleagues–

Stephanie Francis Ward: I see.

Jay Wexler: –one of her junior colleagues. So Breyer is my favorite. That’s what I said in mine.

Stephanie Francis Ward: So Hanna, are there some justices that are known for doing certain things through an interview; and can you tell us what some of those things are?

Hanna Stotland: Yes. Well, as Jay suggested, some of the judges are gonna give you a Socratic grilling. So I would–

Stephanie Francis Ward: Which one?

Hanna Stotland:–just give legal issues. Justice Thomas does that, Justice Scalia does that. We had an interview earlier this summer with Justice Kagan where–that was very substantive. Not particularly long or hostile; but, obviously, very daunting for the candidate. And you might get a question like, “So in the Jones v. Smith matter, can you tell me why I was right and Justice Scalia was wrong?”

Jay Wexler: I would have never gotten that job.

[Laughter.]

Hanna Stotland: Yeah. And I’ve heard of interviews with Justice Thomas in one case going about four hours. A very serious–

Stephanie Francis Ward: A four-hour interview?

Hanna Stotland: Substantive–a four-hour sort of master class on constitutional law.

Stephanie Francis Ward: I guess he must talk more in interviews than he does on the bench.

[Laughter.]

Hanna Stotland: Yes, I think that’s fair to say. But I have never met him in person. All the reports that I’ve gotten we have a couple of his alumni on staff here at Northwestern that he’s very sweet to his clerks and kind of a marshmallow and delightful to work for.

Jay Wexler: He was very much sort of the most normal of the justices. Like, you could just sort of talk to him and without feeling kind of intimidated. He was very nice, friendly, personable.

Stephanie Francis Ward: I see. Final question for the two of you. In the process of applying and getting a U.S. Supreme Court clerkship what do you think is most misunderstood by the candidates?

Hanna Stotland: Luck plays a role. It really does–or fate, however you want to look at it. The stars have to align, even for the Harvard and Yale candidates. Most folks I think who make it, everything went right, and there is–even if it’s informal–a sort of committee of support behind each successful candidate.

And I think the ones who don’t make it, some of that is luck and chance, and some of it is a weakness in their informal committee. Not enough people that the justice trusts and respects, pushing them hard enough.

Jay Wexler: I was gonna say I don’t–I think that people who are applying for these clerkships have a sense that they’re applying to work just for the Justice that they’re applying to, when you really are working for the Court as a whole. And at least when I was there–and I think still–clerks spend at least a third of their time, maybe more working on the cert process, which is a process for the Court as a whole and not the individual justice.

Whether–I don’t–I’m not sure that plays out into any application advice or anything like that, but it’s something that I’m not sure people understand when they apply.

Stephanie Francis Ward: Okay. That’s everything I have for today. I want to thank you both so much for your time.

This ABA Journal podcast is brought to you by WestlawNext, the legal research platform chosen by over 40,000 legal organizations for their tradition of editorial excellence combined with the most advanced technology. Learn more at WestlawNext.com.

About a thousand candidates—most if not all of whom have top grades, fascinating backgrounds and served as law review editors—apply for U.S. Supreme Court clerkship slots each year. How do the 36 who get tapped make the cut? Reputation, coupled with a bit of luck, goes a long way, guests tell ABA Journal Podcast moderator Stephanie Francis Ward.

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