In normal times, Timothy Tymkovich, the chief judge of the U.S. Court of Appeals for the Tenth Circuit, treats his clerks like an extended family. They sit around his chambers kicking around cases and, outside of court, go out for dinner or ski together.
These days, Tymkovich has to be more careful due to the Covid-19 pandemic, taking precautions in his chambers and not requiring clerks to come in every day. In-person mentoring and cross-chamber interactions are much harder for now, and Tymkovich worries that his newest clerks are “going to be missing some of that X factor that other classes of clerks have enjoyed.”
The pandemic has forced federal judges and courts from the Supreme Court on down to adapt everything from the way nearly 3,200 law clerks are hired and integrated into courts to how they do their jobs on a daily basis. The remote clerkship poses the biggest challenge to what many consider the best part of the experience: the intimate face-to-face contact and mentorship-on-the-job that often creates life-long bonds between judges and clerks.
The challenge is all the greater this fall for the latest crop of clerks, who will start on the job without having months of in-person interactions with their judge before going remote, as was the case with clerks serving when the pandemic began.
Michael Francisco, who recently finished a clerkship for Justice Neil Gorsuch, said he was grateful he had a normal first half of his experience, including the “heavily attended” happy hours that took place Thursdays in the court’s cafeteria.
After the pandemic hit, “the interaction with clerks in other chambers changed quite a bit,” he said. Pre-virus, clerks could just walk over to their colleagues and discuss an issue they were having with a draft or order. That was harder to do over email, said Francisco, who is now at McGuireWoods.
It’s for that very reason courts worry incoming clerks won’t have the same experience as usual and are working to adapt their programs.
“How to build community from the get-go remotely is the next challenge,” Molly Dwyer, clerk of court for the San Francisco-based Ninth Circuit, which hires 150 law clerks each term.
‘Open Email’ Policy
In the Ninth Circuit, Judge M. Margaret McKeown has held socially distant picnics and Zoom “quarantini” hours with her clerks. She spearheaded circuit-wide virtual brown bags featuring conversations with new judges, trivia and a judge pet show.
“You have to have some fun,” McKeown said. “It’s hard work, and the clerks work incredibly hard. They’re totally integral to the process.”
Before the pandemic, McKeown said she had an open door policy in her chambers and frequently wandered down the halls to chat about cases and catch up with her staff. Now that’s turned into an “open email” and “open phone” policy, she said.
The one thing missing is the “organic” nature of in-person work, McKeown said. If clerks have a question on an opinion now, they’ll get feedback online, but that’s not the same as it would be to walk over to McKeown, ask questions, revise, and come back to discuss. “There’s no substitute sometimes for the face to face meetings,” she said.
‘Tale of Two Clerkships’
McKeown is also working with clerks virtually on their post-clerkship job prospects. One of those clerks is Ben Shaw, who secured a job at a Los Angeles firm with McKeown’s guidance and is now helping on-board her incoming class of clerks, all of whom are starting remotely.
“It’s definitely been a tale of two clerkships in some ways,” Shaw said, referring to the half in-office, half remote nature of his experience.
Shaw said he was glad he and his fellow clerks were able to build a good culture before the pandemic and maintain that while working from home.
As Shaw is helping prepare the new clerks, he’s emphasizing they reach out to each other for assistance and communicate. “For them, I think the challenge is going to be building a culture together while they’re still scattered all across the country,” Shaw said.
Hayley Stillwell has had the unique of experience of completing one clerkship in the U.S. district court covering Oklahoma City during the pandemic and then starting another with Tymkovich on the Tenth Circuit.
Although she missed talking to her judge whenever she needed to and working with her co-clerk, in a matter of weeks Stillwell said she had a new routine that rivaled the efficiency of her in-court work.
Absent in-person hearings, she and her co-clerk were able to devote more time to pending motions, she said. “I think it was just a consequence of Covid and everyone adapting and getting more efficient,” Stillwell said.
Noell Sauer, a clerk in the District of New Mexico, said clerking “is very conducive to working from home because it’s all writing and research.”
Virtual proceedings have brought unexpected benefits. Through Zoom, Sauer said she’s been able to see facial reactions in a much more intimate way than she ever would have from where a clerk typically sits in the courtroom. “I almost think you get a lot more out of it,” Sauer, who is currently wrapping up her clerkship, said.
Law school officials also said remote clerkship interviewing has been a positive feature that they hope outlasts the pandemic.
Remote interviewing “was a huge relief to most applicants” that “leveled the playing field in a way many hope will continue as a new normal, even post-pandemic,” said Kirsten Solberg, Harvard Law School’s director of judicial clerkships.
It has allowed students “to pursue more opportunities without worrying about cost or having to make choices to juggle travel,” said Janet Siegel Brown, lecturer and director of judicial clerkships at Northwestern Pritzker School of Law.
Call Your Judge
For incoming clerks, Sauer, Stillwell, and Shaw had the same simple advice: vital and the onus is on the clerks to build relationships.
“The millennial law clerk, we’re so used to texting or emailing, I think sometimes it’s hard to talk on the phone,” Sauer said. But if clerks don’t seek out mentorship moments themselves, they might miss out, she said.
-With assistance from Jordan Rubin and Kimberly Strawbridge Robinson