Used to be that the promise of earning a sterling line on a resume and connections to stars of the legal profession was enough to lure Harvard law students to federal clerkships.
But recently, when Harvard Law School was urging its students to apply to work for one of President Trump’s newly appointed judges, it felt the need to offer further incentives: “Next to Lake Tahoe and great skiing!” the job alert read.
But that apparently wasn’t enough. Two days later, in mid-December, the law school again nudged its students to apply for clerkships with federal judges, noting that some judges, including two Trump appointees, had received no Harvard applications — calling them “wasted opportunities.”
As Trump reshapes the federal judiciary with staunch conservatives and controversial picks, some Harvard Law School students appear to be thinking twice about applying for clerk jobs with them, and passing up what are generally considered plum positions.
“Five or 10 years ago, people would be in a rush to apply,” said Emma Janger, 26, a third-year law student at Harvard and the cofounder of the People’s Parity Project, a law student activist group focused on combating harassment and discrimination. Janger said students will generally clerk for judges whose legal expertise and experience they respect — even if they disagree politically. But some recent appointees have been outspoken opponents of gay rights, antiabortion stalwarts, and deemed “not qualified” by the American Bar Association, she said.
“It doesn’t need to be 100 percent ideological alignment,” Janger said, but some students oppose the idea of working for judges with such strident views and want more out of their clerkship than to burnish their resume.
“Students recognize that prestige isn’t all that they are leaving law school with. There are other values that are more important,” she said.
But some legal scholars worry that the reluctance of students at one of the nation’s premier law schools to clerk for Trump-appointed judges, first reported by Bloomberg Law, could further polarize the legal profession and do the country more harm than good.
The expectation is that judges and their clerks will act and make decisions based on the law, not in the interest of ideology or political party, said Charles Fried, a Harvard constitutional law professor and former solicitor general in the Reagan administration.
“If the only people who will clerk for a Trump-nominated judge are the people who voted for Trump, it will drive things to further extremes,” Fried said. “It’s odd and self-defeating.”
Judges without strong experience who may be too ideologically driven need smart law clerks who will offer different perspectives, he said.
For law students, clerking for a federal or even state judge has traditionally been a way to fast-track their careers and boost their salaries. Nearly 90 of Harvard’s 570 graduates in 2018 had federal clerkships. Students apply months or even years ahead for the competitive, one-year positions.
But in December, after the Senate confirmed several new judges, Harvard indicated that some of them, including Douglas Cole in Ohio, Sarah Pitlyk in Missouri, Patrick Bumatay in California, and Lawrence VanDyke in Nevada, were still seeking clerk applications from the university. John Wiley, a California state court judge appointed by that state’s Democrats, was also looking for clerks, Harvard officials told students.
VanDyke and Bumatay were appointed to the Ninth Circuit, which handles cases in the busy western United States, and clerkships there are considered among the most prestigious.
“Any Harvard applicants are likely to get serious consideration,” the university’s internal career blog for students and alumni noted.
Harvard Law School officials declined to comment on whether fewer students were applying for clerk positions with recent Trump appointees or whether other factors could be involved.
“We work to share available clerkship opportunities with our students, confident they will apply for the ones that best suit their interests and needs,” said Mark Weber, assistant dean for career services at Harvard Law School in a statement. “We understand that different judges appeal to different applicants for different reasons.”
But as more Trump judges take the bench — he has already overseen the confirmation of 50 appellate court judges, more than any president in recent memory at this point in his term — law school students who are gay or have had abortions may have serious conflicts working with judges who have been vocally opposed to those issues, Leah Litman, a law professor at the University of Michigan who previously clerked for Supreme Court Justice Anthony Kennedy, wrote recently in a blog post.
Harvard students are in a much more fortunate position than students at lower-ranked law schools who may not be able to pick and choose their clerkships, she wrote.
“If some students are exercising that privilege to stand up for themselves or others, they should be applauded, not chastised,” Litman wrote.
Many of Trump’s nominations have ties to the Federalist Society, the influential conservative legal group.
VanDyke and Pitlyk have also received rare “non-qualified” ratings from the bar association.
After interviewing dozens of people, the bar association wrote in a letter to the Senate that VanDyke, a Harvard Law School graduate and an editor of the Harvard Law Review, was “arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice including procedural rules.” The group also said some of those interviewed raised concerns about whether VanDyke would be fair to gays and lesbians.
In a tearful confirmation hearing, VanDyke said he believed that all people were “created in the image of God, and they should all be treated with dignity and respect.”
The bar association criticized Pitlyk’s lack of trial experience, and reproductive rights advocates blasted her stands against surrogacy and in favor of treating embryos as humans.
Nancy Gertner, a retired Massachusetts federal judge who teaches at Harvard, said neither the president nor students should have narrow slates of judges that they are willing to consider.
“You can’t be in a position to say there has to be an orthodoxy to become a judge or work for a judge,” Gertner said.
But deciding who to clerk for is a complicated decision, she added.
Judges and their clerks develop close working relationships, said Gertner, who attends reunions with some of her clerks and gets notified when they have children.
Eli Nachmany, a first year Harvard law student who worked on the Trump campaign and in the administration, said he too is more likely to want to work with a judge who shares his philosophy. Fortunately, many of those judges were nominated by Trump, have been approved by the Senate, and are now on the bench, he said.
“If certain students want to cut their nose to spite their face and take a pass on these eminently qualified, highly distinguished jurists, that just means more clerkship opportunities for other students who appreciate the opportunity to work for and learn from the judges in question,” Nachmany said.