The ABA’s acclaimed Judicial Clerkship Program (JCP) has entered its third decade of staging intensive annual events that encourage law students from historically underrepresented groups to seek judicial clerkships upon graduation. While each JCP is different, the program inherits many traditions that have most interesting backstories. This article tells those stories for nine of those traditions: (1) its mission, (2) cosponsors, (3) judicial participation, (4) presence of top ABA leadership, (5) hands-on research, (6) oral argument practice, (7) participation by Native Americans, (8) questioning the judges, and (9) a culminating event.
The JCP’s Mission
At each year’s JCP, scores of law students join dozens of judges over parts of three days for panel discussions, an appellate argument, a clerkship simulation, and other activities. Each of these activities has a primary purpose: putting clerking on the students’ career radar screens.
This mission traces to the national attention given to the small number of minority lawyers clerking for Supreme Court justices in 1998 when the president of the NAACP and 18 others were arrested that fall after peacefully crossing a police line at the High Court to deliver resumes of minority law students to Chief Justice William Rehnquist.
This controversy contributed to the commissioning of a comprehensive study of the clerkship situation by the National Association for Law Placement (NALP) and the ABA. According to Professor Debra Strauss, the “study found that minority representation in clerkships was generally lower than in law school populations, although this did vary somewhat by ethnic group.” Overall, only 15 percent of all judicial clerkships were held by minorities, despite the fact that minorities made up 30 percent of the general population and 20 percent of law students. “However,” Strauss points out, “this discrepancy did not result from a difference in the success of their applications, but rather a lower application rate of the minority students.”
Informed by the NALP study, the ABA set out to try to increase the rate of clerkship applications from students from historically underrepresented groups by creating a program that would put clerking on such students’ career radar screens.
The JCP’s Two Cosponsors
Today, the JCP is a joint enterprise of the ABA Judicial Division (JD) and its Council for Diversity in the Educational Pipeline (Pipeline Council). These two entities and their staffs provide the leadership and logistical support for each year’s program, held with but three exceptions at the site of the ABA Midyear Meeting.1
The JD was one of the original cosponsors of the JCP; the Pipeline Council assumed its JCP responsibilities starting with the 2007 ABA Midyear Meeting in Miami. Prior to 2007, JD’s cosponsor was the ABA Commission on Racial and Ethnic Diversity in the Profession (Commission on Racial and Ethnic Diversity).
Indeed, it was the Commission on Racial and Ethnic Diversity that recruited the JD and LexisNexis as partners in launching the JCP. Under the leadership of co-chairs Judge Ellen F. Rosenblum2 and Judge Eileen A. Kato, and with ABA staff support led by Sandra Yamate and Luke Bierman, the first Judicial Clerkship Program was launched at the 2001 ABA Midyear Meeting in San Diego.
The transfer of cosponsorship responsibility from the Commission on Racial and Ethnic Diversity to the Pipeline Council reflected a decision that the JCP was more closely aligned with the mission of the Pipeline Council, which includes acting as a think tank and programmatic incubator for activities that foster a more diverse educational pipeline into the legal profession.
Participation in the JCP from All Parts of the Judiciary
Students who participate in the JCP meet and work with dozens of judges from the full panoply of American court jurisdiction: federal, state, and tribal; appellate, trial, and administrative. There is a single individual more responsible for this phenomenon than any other: Judge James Scott Sledge.3
At the time the JD joined with the Commission on Racial and Ethnic Diversity to convene the first JCP in 2001, the JD had among its constituent subgroups a Standing Committee on Minorities in the Judiciary (Standing Committee).4 The leadership of JD assigned to the Standing Committee the principal responsibility for securing judicial participation in that first JCP program on the theory that the students attending the program would best relate to minority judges. For the second JCP in 2002, the leadership of the JD assigned to its Appellate Judges Conference (AJC) the responsibility for securing judicial participation in that second JCP program on the theory that it was primarily appellate judges who hired law clerks.
Prior to the third JCP in 2003, Judge Sledge became the chair of the JD and implemented a different approach to judicial participation in the JCP. No longer would it be primarily the responsibility of one of JD’s constituent subgroups; judges from all JD subgroups would be actively recruited to participate. And that has made all the difference.
From 2003 on, judges in significant numbers from each Standing Committee, AJC, National Conference of the Administrative Law Judiciary, National Conference of Federal Trial Judges, National Conference of Specialized Court Judges, National Conference of State Trial Judges, and JD Tribal Courts Council have participated in the JCP and made demonstrable contributions to it. Even more, by acquainting students in the program with the wide range of jurisdiction exercised by American judges, the students have left the program with an understanding of not only the clerkship opportunities available to them but also the breadth of the American judiciary itself.
Greetings from Top ABA Leadership
During the first two JCPs, participating students and judges were greeted by the chairs of the JD and the Commission on Racial and Ethnic Diversity. Those greetings were heartfelt and welcome but did not convey the priority given the JCP by the ABA as a whole. That would change forever when ABA President-Elect Dennis W. Archer made an unscheduled appearance during the opening ceremonies of the 2003 Midyear Meeting in San Antonio.
It is hard to describe adequately the excitement among both students and judges when Archer entered the room.5 In addition to being the ABA’s first Black president, Archer had employed law clerks during his tenure as a justice of the Michigan Supreme Court and had been a law clerk himself to a most distinguished U.S. Court of Appeals judge.6
Each session of the JCP thereafter has opened with greetings from the very top leadership of the ABA: usually its president, president-elect, and executive director. And often they are joined by one or more of the immediate past presidents, chair of the House of Delegates, and other top officials. Particular high points in such greetings have come in the JCPs during years in which the presidents have been lawyers from historically underrepresented groups: Archer (2004), Robert J. Grey Jr. (2005), Stephen N. Zack (2011), Paulette Brown (2016), and Reginald M. Turner (2022).
The Research Exercise
From its inception, the JCP has included a major research exercise as a centerpiece of its efforts to acquaint student participants with the clerking enterprise. By the second JCP in 2002, the research exercise had already evolved to the form still used today. The students are divided into small groups with two and sometimes more judges assigned to each group. The concept is that each group is the chambers of a justice of the U.S. Supreme Court, with the group’s judges playing the role of the justice and the students the role of the justice’s clerks. The justice has been assigned to write the Court’s opinion in a major case, and the clerks are to research the issues and prepare an outline for the opinion. Over the course of the three-day program, the students meet periodically with the judges to discuss the case and then, using resources provided by LexisNexis, research the issues in the case. As can be readily seen, LexisNexis has been an indispensable and generous partner since the first JCP in 2001.
The use of the small groups with the students and judges is designed to replicate, to the maximum extent possible, the kind of judge-clerk personal interaction characteristic of judicial clerkships. And because of this, the judges use the meetings to discuss topics well beyond the research exercise itself.
The topics for the research exercise since 2002 have been hypothetical cases based on the facts and issues in closely watched cases then pending at the High Court. Some of the cases used for the research exercise over the years have explored the Religion Clauses, the Free Speech Clause, the Second Amendment, several Fourth Amendment issues, the Double Jeopardy Clause, the Takings Clause, the Copyright Act, a Voter ID statute, and the authority of a police officer of an Indian Tribe.
Each year’s JCP organizing committee selects the year’s research exercise from a short list of cases prepared by the author of this article. I was greatly honored when, after suggesting topics and preparing the research exercise for almost 20 years, the ABA Board of Governors authorized the research exercise to be named after me in 2018.
The Appellate Oral Argument
At the 2005 ABA Midyear Meeting in Salt Lake City, the JCP included for the first time an appellate oral argument, the inspired idea of Judge Harris L. Hartz.
A panel of judges from the U.S. Court of Appeals for the Tenth Circuit (Hartz, Robert H. Henry, and Michael W. McConnell (sitting by designation)) arranged for the students and judges to attend oral arguments in two criminal cases, one involving a cross burning with some First Amendment issues and the other involving compulsory medication of the defendant to make them competent to stand trial.
The arguments, which took place at the local federal district courthouse, began an almost uninterrupted tradition where the students and judges observe arguments of actual court proceedings and then visit with the participating judges afterward. Courts conducting such arguments over the years have included the U.S. Court of Appeals for the Seventh Circuit; the U.S. District Court for the Southern District of Florida; and the Courts of Appeals for Massachusetts, Georgia, and Louisiana.
An interesting variation on the appellate oral argument occurred at the 2008 ABA Midyear Meeting in Los Angeles, where the logistics made travel off-site impracticable. Judges participating in the program conducted a mock argument on the same hypothetical case as that being used for the research exercise.
Native American Participation
Although Native Americans have been among the students from historically underrepresented groups participating in the JCP from its inception, significant Native American involvement has become a hallmark of the JCP during the last decade.
First, the American Indian Law Center Inc. (AILC) underwrites the participation in the JCP of law students who have graduated from its Pre-Law Summer Institute for American Indians and Alaska Natives. This generous support from AILC guarantees that there will be strong Native American representation among the students at the JCP each year.
Second, tribal judges have joined the ranks of judicial participants in each year’s JCP, a function in part from forming a Tribal Courts Council within the JD. For example, Federal Magistrate Judge Leo I. Brisbois and Chief Justice Meredith D. Drent of the Supreme Court of the Osage Nation, both extremely prominent Native American judges, have been frequent JCP participants.
Third, the research exercise at the JCP held online in 2021 centered on a question of Indian law: whether a police officer of an Indian Tribe lacked authority to detain temporarily and search a non-Indian on a public right-of-way within a reservation based on a potential violation of state or federal law.
The JCP’s record and reputation for encouraging Native American law students to seek judicial clerkships owes much to attorney Robert O. Saunooke, who has given tirelessly of his considerable energy in this regard.
The “Students Question the Judges” Panel
Although the first JCP in 2001 was a success, it became apparent as the session progressed that the students did not feel that they had had enough time to engage the judges in dialogue. The organizers nimbly assembled a closing session during which all of the judges were arrayed in the front of the room and responded for an hour or more to student questions.
This ad hoc “Students Question the Judges” panel discussion immediately established itself as the JCP’s closing event. Year in and year out, the students asked the judges questions that inquire into the judges’ origin stories, memorable lessons from the bench, tips on securing clerkships and succeeding in them, and more.
The author of this article has been privileged to moderate a substantial majority of the “Students Question the Judges” panels and comes away each year both invigorated and a little amazed by the session. Each year, at least two dozen, and sometimes approaching four dozen, judges participate; with only 60 to 75 minutes available, this means that each judge only has an opportunity to answer one student question and only a short time to do so. That busy judges nevertheless are willing to sit through such a session is a striking demonstration of their commitment to the JCP and its mission.
Attending the “Spirit of Excellence Awards” Recognition Ceremony
Following the adjournment of the JCP itself, the student and judicial participants attend the ABA Spirit of Excellence Awards ceremony as the guests of its sponsor, the Commission on Racial and Ethnic Diversity. This tradition dates to the first JCP in 2001 when the Commission was JD’s cosponsor of the JCP. Even after the Pipeline Council assumed the mantle of cosponsor in 2007, the Commission on Racial and Ethnic Diversity most generously continued to include the JCP participants in its magnificent gala.
The Spirit of Excellence Awards honor select groups of lawyers who have achieved excellence as government officials, judges, professors, and practicing attorneys, while supporting others during their legal careers.7 Of particular significance to the JCP have been the Spirit Awards presented to Judge James A. Wynn Jr., Judge Bernice B. Donald, and Judge Arthur Louis Burnett Sr., all of whom have participated as judges in the JCP.
It is hard to overstate what a perfect climax attendance at the Spirit of Excellence Awards ceremony provides to the JCP. The students and judges are exposed to the life stories of judges and lawyers whose commitment, perseverance, and hard work have enhanced diversity, equity, and inclusion in our legal system and in our nation.
The foregoing sets forth the backstories on some of the features of the JCP that have become traditions. Nevertheless, the key to the JCP’s success in the past two decades has been—and in the future will be—the enthusiastic leadership of the members of each year’s organizing committee and ABA staff; unqualified commitment of the judicial participants, some whose service spans the program’s entire history; and the steadfast faith of the law schools and their students. All can take great pride in the contributions they have made to markedly improving the diversity, equity, and inclusiveness of our country’s judicial clerks.
1. The 2018 JCP was held in Chicago whereas the ABA Midyear Meeting was held in Vancouver, B.C. The 2021 and 2022 JCPs were held virtually because of the coronavirus pandemic.
2. Ellen F. Rosenblum is currently attorney general of Oregon.
3. After retiring from service as a U.S. bankruptcy judge in Alabama, James Scott Sledge was appointed by the Librarian of Congress to serve as chief judge of the three-member Copyright Royalty Board. He has also been a noted champion of the arts.
4. The Standing Committee was chaired by Judge Gregory Holiday of Detroit. One of the members of the Standing Committee was Judge Ezra Friedlander of Indianapolis. It was Judge Friedlander who recruited the author of this article to participate in the JCP.
5. The author of this article, who was present, remembers the woman standing next to him exclaiming, “It’s like Denzel Washington has entered the room!”
6. Dennis W. Archer clerked for Judge Damon J. Keith of the U.S. Court of Appeals for the Sixth Circuit.
7. Among the great many highly notable government leaders, professors, and attorneys recognized with the Spirit of Excellence Award have been Paulette Brown, William T. Coleman Jr., Vine Deloria Jr., Frankie Muse Freeman, Robert J. Grey Jr., Bill Lann Lee, Lori E. Lightfoot, Charles J. Ogletree Jr., Louis Stokes, Mia Frances Yamamoto, and Stephen N. Zack. Judges so honored have included Denny Chin, Steven C. Gonzalez, Joseph W. Hatchett, Petra Jimenez Maes, Damon J. Keith, Jacqueline H. Nguyen, George Bundy Smith, and Ann Claire Williams.