A few years ago I came up with what I thought was a brilliant and original idea. Well, at least an original idea. Establish a congressional clerkship program, in which recent law school graduates could work for a year providing legal research and advice to Congress. It would be something of a cross between a judicial clerkship and the DOJ Honors Program, and the basic idea would be to give the clerks the same type of experience from a congressional perspective. Congress would get the benefit of top quality legal talent and, equally importantly, would have the opportunity to educate these new lawyers on congressional legal issues that are often overlooked in law schools.
It turns out that a lot of people were way ahead of me. In 2005, 145 Law School Deans, led by Stanford Dean Larry Kramer, had sent a letter to Congress urging the creation of a congressional clerkship program (the letter may be read at the Congressional Clerkship Initiative website). The Deans wrote: “Following the judicial clerkship model, we would propose that a Congressional Clerk serve for one or two years, either for an individual legislator or for a legislative committee, and be comparably compensated.” They predict that “legislative clerks could and would rapidly learn the ropes and become invaluable assistants on tasks ranging from research to crafting positions and writing speeches to the actual drafting of legislation and legislative reports.”
The Deans point out that judicial clerks are top law school graduates and “go on disproportionately to assume leadership positions in the bar and in the profession.” The fact that many such leaders have had judicial clerkship experience, but no comparable degree of congressional experience, explains “in part why the legal profession in this country tends to emphasize litigation and the judiciary over legislation and the lawmaking process.” A robust congressional clerkship program “would do much to improve understanding and appreciation of the legislative process within the legal profession and, through the profession, in the country as a whole.”
Professor Dakota Rudesill, who teaches at Georgetown Law School and serves as Interim Director of its Federal Legislation and Administrative Clinic, has elaborated on the latter point with research that shows the comparative lack of legislative experience among leaders in the legal profession. In this 2008 article, for example, he found that only 14 percent of federal appellate judges and 5 percent of top law professors have had prior legislative experience; more than five times as many had executive branch experience. In this 2010 article, he analyzed the backgrounds of the “Lawdragon 500” (a ranking of top lawyers throughout the country) and found an even bigger gap; less than 4 percent had legislative experience, compared to nearly 7 times as many with executive experience.
Rudesill also notes that this lack of legislative experience is compounded by a lack of instruction in the subject in law schools, which, he observes “focus their curricula on judge-made case law, and only a few of which require a course in legislation.”
This may be changing. It is worth noting that Harvard Law School, for example, now offers a course on “Legislation and Regulation” as part of the 1L curriculum. The course is taught based on a new casebook by Professors John F. Manning and Matthew C. Stephenson, entitled (what else?) “Legislation and Regulation.” If you don’t plan to read the casebook, you might want to check out this review, which observes that “many law students are surprisingly unfamiliar with the basics of the federal legislative process” in part because law schools traditionally provide little instruction on it. The Manning/Stephenson casebook, which the reviewer describes (and largely praises) in some detail, has “become an immediate hit in American law schools.”
A congressional clerkship program would encourage and bolster this trend by giving law students and law schools a greater incentive to learn about the legislative process. In this regard, it would also make sense for Congress to encourage law student internships with congressional committees and other offices, something that occasionally, but very unsystematically, happens.
In short, a congressional clerkship program would have direct and indirect benefits to Congress. Members who complain that their constitutional prerogatives are routinely ignored or given short shrift by the executive and judicial branches should consider this as a means of lighting a candle, rather than merely cursing the darkness.
A bill to establish a pilot congressional clerkship program passed the House by voice vote in the 110th Congress and by a vote of 381-42 in the 111th Congress. Each time it failed to clear the Senate (according to Professor Rudesill, it was hotlined in the 110th Congress and was blocked in the Senate by a single Senator). The legislation, H.R. 1374, entitled the “Daniel Webster Congressional Clerkship of 2011,” has been re-introduced by Representatives Dan Lungren (now chair of the House Administration Committee) and Zoe Loefgren (the immediate past chair of the House Ethics Committee). There appears to be no Senate companion bill as of yet.
Of course, in these days of fiscal austerity, there will need to be some offset for the modest (less than $1 million per year) cost. I am thinking that the Department of Justice would be happy to contribute to leveling the playing field among the branches.