In this era of gridlock and difficult politics, a bipartisan group of Senators has done something worth celebrating. On Monday, with the introduction of the Daniel Webster Congressional Clerkship Act, S. 3499, the Senate has taken the first step not only toward busting the judicial clerkship monopoly on mentoring fresh young law graduates but also toward bridging the enormous gap—a gap in both information and respect–between Congress and the courts.
The bill, sponsored by Sen. Mike Lee (R-UT), Sen. Patrick Leahy (D-VT), Sen. John Hoeven (R-ND), and Sen. Ted Cruz (R-TX), would create a dozen clerkship positions in Congress, equally divided across chambers and political parties. The bill envisions them competitively funded at the same level as their federal judicial counterparts.
Legislation scholars and other Congress watchers have long complained that federal judges do not understand Congress, and make little effort to even try. Our own work has shown the profound disconnect between the assumptions about Congress that courts apply to federal statutes and the way that Congress actually works. One of us has illustrated, with co-authors, the federal courts’ stubborn unwillingness to acknowledge the past several decades’ massive deviations from the textbook legislative process depicted in the famous School House Rock! cartoon—deviations that make our world now one of “unorthodox lawmaking,” even if courts fail to see it or to understand how that fact should affect legal doctrine. The other one of us has recently revealed another legislative unorthodoxy unknown to most lawyers, namely, Congress has been doing classified legislating for nearly a full four decades.
A steady stream of federal justices and judges, from Justices John Paul Stevens and Ruth Bader Ginsburg to Second Circuit Chief Judge Robert A. Katzmann, have suggested for years now ways to bring Congress and the courts into conversation about their mutual statutory work. Judge Katzmann, like us, has long emphasized that lawyers and courts need to understand Congress better in order to properly do what today is the kind of work that the vast majority of lawyers must do –namely, interpreting statutes.
The Congress-court gap was not always so wide. Few today appreciate this, but until about a half century ago leaders in the law moved between the Congress and Supreme Court with some regularity. More importantly, today there is a dramatically lower level of legislative work experience among the most influential ranks of the legal profession, compared to work experience inside courts, agencies, firms, and academy. As one of us found in an empirical study a few years ago, strong majorities of federal appellate jurists have prior court, agency, and private practice experience, and nearly half have academic experience, but only 14 percent have ever worked for a legislature—any legislature—and seen from the inside how the statutes they interpret are made. Remarkably, this low rate of firsthand legislative experience among federal appellate jurists is roughly three times what it has been among Top 20 law professors and top lawyers nationwide. Imagine how the discourse could change if there were more people serving in the courts, agencies, the private bar, and on law faculties who understood from firsthand knowledge the process of drafting and enacting modern legislation.
Even putting aside those benefits, there is a story of respect to tell here. Where law schools recommend that its fresh young graduates apprentice themselves sends a loud signal about how much the profession values and respects those destinations. Federal judges have long claimed the privileged position of being the most sought-after destination for top law school graduates. But others have followed suit. The attractiveness to fresh law school graduates of “Honors” programs and similar opportunities at the U.S. Department of Justice and other agencies, as well as fellowships at public interest legal organizations and academic institutions, not to mention junior associate positions at law firms, are all ways in which the profession signals what experiences it values and what institutions it respects.
Why have we not included Congress in this list? We don’t need everyone to run for office to see why our legal system stands to gain enormously from training young lawyers to understand statutes. Most judicial law clerks do not aspire to become judges, but their time in judicial clerkships breeds not only understanding, but deep respect for, the institution of courts. All practicing lawyers will at some point construe a statute – and many lawyers will do it routinely — while only some will argue a case before a judge. That is why, as we have documented, a growing and now significant number of top 100 law schools have a legislation-related course as a graduation requirement. Many even give legislation a spot in the treasured and foundational first year curriculum. This truly is, even more so when Guido Calabresi coined the phrase, the “Age of Statutes.” How better to signal right now the value of understanding legislation to the work of the law than enacting the Congressional Clerkship Act?
The effort to pass the Congressional Clerkship Act has been a decade in the making. The deans of more than 120 law schools have written to Congress in support, and legal luminaries across the political spectrum have long observed that Congress’s failure to be competitive in the “law clerk market” has meant that Congress has comparatively suffered in its ability to shape the legal perspective and harness the talents of the legal profession’s future leaders.
We are both members of the steering committee of the Congressional Clerkship Coalition, the national network of scholars, law students, lawyers, and other current and former practitioners who have been leading the charge for Congress to create a clerkship program. The committee also includes former Stanford Law Dean Larry Kramer (who started the initiative a decade ago), Georgetown Law Dean Bill Treanor, and another early champion, Georgetown Law Professor Robin West. We are delighted that law students have done yeoman’s work on the legislation, over the past six years doing every aspect of legislative advocacy with the benefit of training by one of us (Rudesill).
The irony of this week’s progress is not lost on us: At a low point for notions of “good government,” in the wake of historic gridlock, we have a bipartisan bill in the lame duck session of Congress that is the most optimistic and public-minded gesture of faith in legal-congressional cooperation that we have seen in years. We hope legal educators and practitioners alike will see the value of this bill.
To that end, finally, consider this fact from the Gluck-Bressman empirical study of congressional drafting: Among counsels in Congress who had taken legislation in law school, there was significantly greater understanding of the interpretive presumptions that the courts apply to statutes. That understanding translates to more legislation written with those presumptions in mind–exactly the foundation of the kind of court-congress conversation that virtually every Justice on the modern Supreme Court, including and perhaps especially the late Justice Scalia, has hoped to create. With the congressional clerkship, we will be raising a generation of future ex-congressional law clerks who can likewise bring what they learned in Congress out into the broader legal profession. Maybe they will teach their supervisors—whether they be judges, general counsels, litigators, or law professors—that it generally makes no sense to apply rules of strict linguistic consistency to omnibus legislation; or that appropriations bills are different from non-appropriations bills; or how Congress signals to agencies in statutes; or myriad other facts about congressional lawmaking that come from understanding how Congress works. Whatever comes out of it, the connections and respect this program will generate across the branches will be worth it.
Abbe R. Gluck is a Professor of Law and Faculty Director of the Solomon Center for Health Law and Policy at Yale Law School. Dakota S. Rudesill is an Assistant Professor of Law at The Ohio State University Moritz College of Law. This post has been cross-posted at Balkinization.