Professor Jaffer on Clerking and Risk-taking

Law students and young lawyers often seek advice from their professors, law firm partners, and other mentors about the key steps they ought take early in their careers. Often it is the question whether they ought seek a job in government or in the private sector, at a nonprofit or in a company, a big firm or a small firm. Many other times, it is whether they should clerk for a federal, state, or local judge and, in particular, whether it is worth spending a year or more after a long (sometimes brutal) three years in law school, or after a few—often brutal—years in private practice, taking a huge hit on salary, and potentially having to uproot their lives, in order to do so. Occasionally, the question that law students or young lawyers ask their mentors is whether, early in their careers, they ought take a leap of faith and try something other than a classic legal career. And while I am typically a big believer in young lawyers taking big risks, trying the non-traditional path, and following their passions while aiming high, I actually take the more “traditional” view when it comes to clerking. In that area, as a general matter, I think it is totally worth doing, even if it is the thing that “everyone” says you ought to if you get the chance. While I normally tell people to avoid the typical lawyer “herd,” in this one space, I think the herd might have it right.

To explain why, it’s perhaps worth laying out why I think risk-taking by young lawyers is actually exactly the right move, and why clerking is actually more “non-traditional” than you might think. Lawyers are among the most high-performing, risk-averse people on the planet. Almost uniformly, those who go to law school—particularly top law schools—have succeeded previously, whether it is in terms of attending a top-notch academic institution, getting great grades, crushing the LSAT, or overcoming significant adversity to get a coveted admissions slot (or more than one). And more often than not, young people entering law school often enroll thinking to themselves that they will go change the world, serve their nation, join a public service institution, establish a non-governmental public interest organization, or do something otherwise amazing, essentially continuing on the awesome path that got them into law school. Sadly, though, more often than not, by the time they graduate, most law students have lost the passion, and have become conditioned to join the herd of lawyers joining one law firm after another, to punch the ticket, with the hope one day they might make partner or move over to a cushy in-house job where they can sock away enough money to pay off their loans and live the good life. And even those who still have the passion—more often than not—will likewise join the herd, telling themselves it’s okay, that they won’t stick around, that they are just doing it to get the “experience” and to ensure that they have a backup plan in the event that, when they do eventually strike out to pursue their dreams, they fail miserably.

This is crazy. We all know that while not perfect, past performance is a pretty good predictor of future performance. Indeed, law school admissions officers bet on exactly that by admitting students from top institutions, with good grades, rock star LSATs, or experiences that demonstrate they are good at beating the odds. And yet, for some reason, all these law students who get into law school on a record of superstar performance become conditioned, somehow, to believe that rather than continuing to buck the odds and outperform as they historically have, they should instead take the win and settle down to collect the spoils of their prior successes. In essence, we have taken the people most likely to be able to take risk and capitalize on it and turned them into risk-averse automatons. The reasons and mechanisms by which this happens are well beyond the scope of this brief essay, but suffice it to say that it ain’t good and that any student reading this article ought think to themselves, at a minimum, having been this successful, is now really the right time to stop taking risks or is now the time to double down and take the next big risk knowing that I’m likely to succeed and, even if I don’t, I know I’ll be able to get up, dust myself off, learn the lessons, and be even better at the next thing I try. If you came into law school seeking to model those lawyers who broke from tradition and changed the world, please don’t abandon that path to instead follow those who didn’t.

So what does all this have to do with clerking and, more importantly, how can it possibly be the case that taking this well-worn, “traditional” path in the law, really be a path-breaking, non-traditional decision? Simple: most law students and young lawyers, even coming out of the most elite institutions, don’t even pursue clerkships. Take the University of Chicago, my alma mater, which historically along with Yale, has one of the highest per capita rates of students that go to clerkships. Even at these institutions, clerkship participation rates are well under half the class. And the average percentage at most law schools is dramatically lower, typically hovering in the single digits. It turns out that this oh-so classic path in the law is actually one of the paths least taken. And while one might say that this is a feature of the number of clerkship slots available nationally or the need for some elite pedigree to get in the clerkship mafia, the reality is that clerking, at all levels, is an option for a much broader group than one might think. Indeed, the fact is that a lot more people who could clerk don’t because they simply don’t pursue clerkships, thinking they are out of range or not worth the effort. This is yet one more example of the classic lawyer risk-aversion approach to life.

Take the case of Will Consovoy, Scalia Law’s first graduate to clerk on the U.S. Supreme Court. Will didn’t initially get some fancy federal clerkship that set him on the fast path to SCOTUS. Rather, out of law school Will clerked, like many of our graduates, on the 17th Judicial Circuit here in Virginia. The difference between Will and the average bear was that Will made the decision to clerk early, pursued it hard, and once he got it, didn’t stop there. After a few years in private practice, Will clerked on the Fifth Circuit for Judge Edith H. Jones (the same year I was there), and then went on, with Judge Jones’s strong recommendation, to clerk for Justice Clarence Thomas. If he had just assumed, as many others before him did, that the Supreme Court was off limits to a student from Scalia Law (in an era when we weren’t nearly as good as we are now), Will would never have even had the temerity to apply for the court. But he did. And he succeeded. Sure, Will could have stopped there and rested on his laurels. But instead, after a few more years at a law firm, he struck out on his own again, creating a top-notch firm here in Virginia doing some of the most high-profile litigation around and establishing Scalia Law’s Supreme Court clinic along with his buddy Tom McCarthy. Hardly the stuff of “traditional” lawyering.

The point here is that, had Will taken the actual “traditional” path, which doesn’t involve clerking, he likely wouldn’t have gotten the shots he got to do the things he’s done. Moreover, had Will rested on his laurels, or taken the “traditional” grind-it-out, longtime firm or corporate lawyer approach, its hard to see him having been able to do the work he’s done or to benefit the law school the way he has. Now, to be sure, there are plenty of highly successful, traditional lawyers. But ask yourself, how many of those managing partners at the major office, of the major firm could have been corporate CEOs? How many of them could have been congressmen, senators, or presidents? How many could have changed the world? And then ask yourself, how many of those folks truly love their jobs; how many of them, having earned the good life and made the money, wouldn’t trade it all for the chance to go solve some major world issue?

And while it is certainly also true that plenty of the risk-taking lawyers I admire didn’t clerk and that the vast majority of those law students who clerked ended up becoming traditional lawyers, the fact is that there is something special about clerking. You typically build a deep personal rapport with a serious, highly capable person, you get to see what they do day-to-day, how they make decisions, and how they comport themselves. You get to learn what works and what doesn’t. And best of all, with the good judges (and that’s most of them), you get a friend and mentor for life. And that’s worth a ton. So if you can get a clerkship, you should do it. And on top of that, you can find it in yourself to preserve, nurture, and retain that risk-taking, passionate personality that got you this far, I’m willing to bet that the clerkship will only build on that a skill set and enhance your long-term ability to succeed.

Jamil N. Jaffer is the Founder and Executive Director of Scalia Law’s National Security Institute and an Assistant Professor of Law and Director of the National Security Law and Policy Program. In addition to his work at Scalia Law, Professor Jaffer serves as Senior Vice President for Strategy, Partnerships, and Corporate Development at IronNet Cybersecurity, a technology products startup. Professor Jaffer has a long history of service in the federal government, having been a senior political appointee at the Justice Department, the White House, the House Intelligence Committee, and the Senate Foreign Relations Committee. Professor Jaffer clerked for Judge Edith H. Jones of the United States Court of Appeals for the Fifth Circuit and Justice Neil M. Gorsuch of the United States Supreme Court.