//  12/23/19  //  Commentary

Last week, the Harvard Law School Office of Career Services put up what I think the office would describe as a routine and banal post on its “clerkship blog.” (From my time at Harvard, I’m a little familiar with the blog; OCS’s clerkship advisers run the blog, where they post announcements about openings and advice about applications.)

The fact that OCS probably viewed the post as banal, however, provides a nice window into some issues within the legal profession. The blog post, entitled 2020 compilation, announced that “much hiring for 2020 clerkships is still ahead.” It went on to underscore that their spreadsheets “reveal over 250 judges potentially still hiring for Fall 2020.”

The post then went on to highlight five specific judges that “are still seeking clerks, including through us [Harvard], such that any Harvard applicants are likely to get serious consideration.” The post continued (in italics): “For some of them, we have received zero applications so far, which seems like wasted opportunities.”

Among the judges that the blog highlighted – and emphasized that HLS students’ failure to apply to these judges were “wasted opportunities” – were Judge Sarah Pitlyk, on the Eastern District of Missouri, and Judge Lawrence VanDyke, on the Ninth Circuit.

Both Pitlyk and VanDyke were rated “not qualified” by the American Bar Association, and VanDyke was confirmed over the objection of home state Senators.

Then there is the professional history of both judges. During her time in practice, Pitlyk filed amicus briefs arguing that “the practice of surrogacy has grave effects on society, such as diminished respect for motherhood and the unique mother-child bond.” (The brief also argued against IVF.) Another amicus brief she wrote called contraception “evil,” “a grave moral wrong,” and “seriously wrongful.” She wrote an opinion piece after the (then anonymous) sexual misconduct allegations against Justice Kavanaugh came to light; in the piece, she called accusations of sexual misconduct a “last ditch effort” to stall his nomination and referred to the allegations as part of a “game.” She said the allegations were merely “trying to tarnish” Kavanaugh’s character. After Ford went public, Pitlyk continued, in one interview saying the allegations were “hard to take … seriously” and were “politically motivated.”

VanDyke was confirmed to the Ninth Circuit after crying in his confirmation hearing when he faced criticism for his anti-LGBT work (among other things). That work included writing op-eds against allowing same-sex couples to marry that argued marriage would “hurt families, and consequentially children and society.” As a lawyer, he defended states’ ability to deny marriage licenses to same-sex couples, argued that student groups have a First Amendment right to exclude LGBTQ students, and urged that photographers have a constitutional right to deny services to same-sex couples at their weddings.

Which takes us back to the HLS Clerkship blog. Is it fair to blast all of the HLS students and say that they are “wast[ing] opportunities” by not applying to these judges? That is a fair reading of the clerkship blog post, which is publicized and intended for HLS students; its advice is also couched in terms of all HLS students.

Yet it’s fair to wonder how (for example) some LGBTQ students might feel about being told that they are wasting an opportunity by not applying to VanDyke. Or (for example) how some individuals conceived through IVF—or some individuals who might use IVF—might feel about being told that they are wasting an opportunity by not applying to Pitlyk. And I can imagine how it might feel like something of a punch in the stomach for some rape survivors or victims of sexual misconduct to be told that they are wasting opportunities by not applying to Pitlyk.

The judges that the HLS blog chose to highlight are not good fits for some of their students, and they are not good fits for perfectly good reasons. It is inappropriate for HLS to send a message to those students that chastises them for not considering applying to those judges anyways.

One upshot of the post, however, is that it nicely captures some of the challenges that the legal profession will face in light of President Trump’s reshaping of the judiciary.  Law schools (right now) have an institutional interest in getting clerkships for their students: Schools competitively publicize the number of clerkships their students receive, and schools rely on judges to appear at moot courts and other events at the law school. In part for this reason, institutions value professors’ connections to judges—it’s considered a service to facilitate students getting clerkships.

Clerkships are also often valuable to students too. They provide an inside window into how courts work as well as an opportunity to quickly learn things about particular courts that are difficult to learn only through practice. Law firms offer bonuses to students who clerk. And other jobs, too, value federal clerkships when they’re considering hiring or promotions.

Not all jobs, to be sure. For some jobs, I don’t think it’s a stretch to think that clerking for a judge like Judge Pitlyk or Judge VanDyke would be viewed as a negative.

But the point is that our profession (at least a big chunk of it) currently treats—and rewards—almost all federal clerkships equally. Law schools count and publicize all clerkships; law firms pay bonuses for all clerkships; and for many jobs, having a clerkship, any clerkship, is a boost. The HLS Clerkship Blog post is very much of a piece with this.

It’s not unreasonable for OCS to communicate to students that the profession values clerkships (and that, because of that state of affairs, much of the profession would probably value clerkships with Pitlyk and VanDyke). 

But OCS should realize that as the Office of Career Services of Harvard Law School, they also play a role in shaping the social meaning and professional value of clerkships just like other groups within the profession do. OCS’s job is not just to assist students with the application process; they contextualize the process, including by signaling to students what information and what metrics should matter to students to when selecting clerkships.  For example, a student might find in her research that the judges were rated “not qualified.”  OCS’s clerkship blog post suggests to the students that that rating has no meaning, and neither do any of the things these judges said or did before they were confirmed to Article III. What matters, instead, is that they are a federal judge.

The legal profession is often at risk of – and fairly criticized for – valuing power and prestige for the sake of power and prestige. The OCS career blog post looks like it is doing just that: They are taking the position that the office is at most ambivalent toward any and every thing that Pitlyk and VanDyke said and did before they became judges. The thing that matters, the OCS post implies, is that Pitlyk and VanDyke are judges, and not clerking for judges (any and every judge) is a “wasted opportunity.”   OCS is telegraphing that students and the profession are -- or should be-- neutral toward a lawyer’s decision to argue that governments can deny legal protections or parentage opportunities to LGBT individuals (or characterizing a credible accusation of sexual misconduct as “hard to take seriously”), while at the same time considering a student’s choice not to apply to those judges a "waste." 

It is occasionally difficult to know how to evaluate someone as a judge or a jurist based on the things they did before they became a judge. But Pitlyk and VanDyke were just confirmed; they said and did these most of things within the last five years or less. People who wonder whether a judge’s position entitles them to deference (or think that a judge’s confirmation should change the profession’s orientation toward them) should know that they are delegating to Senate Republicans the task of selecting the people our profession is telling students to emulate, work for, be mentored by, and revere.

The blog post highlights other related issues too. The reality is that (in part because of the changing face of the federal judiciary), clerkships are not available to everyone equally.  An LGBTQ student might prefer not to clerk for someone whose legal career has involved repeatedly fighting against advances for LGBTQ rights or someone who says derogatory or offensive things about gay people. A student who has had an abortion might prefer not to clerk for someone who has spent their legal career characterizing abortions as murder or attempting to restrict women’s right to an abortion.

And it is a disservice to these students for their office of career services to suggest these are wasted opportunities.

The question, then, will be whether the profession might adapt to these facts. Will the profession step back and realize that, for some students, we shouldn’t expect them to apply to judges like Judge VanDyke or Judge Pitlyk?

There is a long tradition in our profession of venerating people who can “agree” and “get along” (or even go along) with the other side. There is something to be said for that, in some instances and in some applications.

But an equally important and admirable tradition is when lawyers take a stand – and stick up for their principles (including by not taking a job with someone who has devoted their career to stripping them of legal protections). That’s something to be celebrated, not chastised. Students should know that clerkships are prized in our profession. But no one should be told that they are wasting an opportunity by standing up for what they believe in – and perhaps also for themselves and their self worth.

HLS students are in an extremely fortunate position – because they’re at a top law school, they have more choices among clerkships than students who might be applying for clerkships from a lower ranked school. If some students are exercising that privilege to stand up for themselves or others, they should be applauded, not chastised.

 @LeahLitman 

 


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