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December 6, 2016

"Bill Would Create Law Clerkships on Capitol Hill"

The title of this post is the headline of this new National Law Journal article that discusses a terrific program that a terrific colleague has been advocating for.  Here is how the article begins:

Is the fifth time the charm for a proposed congressional clerkship program for new lawyers? It might be.

A bipartisan coalition of four U.S. senators on Monday introduced a bill that would create a dozen yearlong clerkships on Capitol Hill for recent law graduates—a long-discussed program modeled after judicial clerkships that aims to give lawmakers deeper legal resources while providing future leaders of the legal profession with legislative experience.

Previous iterations of the Daniel Web­ster Congressional Clerkship Program passed in the House of Representatives but stalled in the Senate amid gridlock and Republican concerns over unspecified costs. Now, advocates of the program say a fresh slate of Senate co-sponsors that spans the aisle, as well as changes that clarify the program won't require additional funds, mean conditions are finally ripe for the bill's passage.

"We have members who are excited to push the bill and we have a window here before the end of the lame duck," said Dakota Rudesill, a professor at Ohio State University Michael E. Moritz College of Law who has been working on the initiative for a decade and serves as the national coordinator of the Congressional Clerkship Coalition.

Sen. Mike Lee, R-Utah, is co-sponsoring the bill along with Patrick Leahy, D-Vermont, Ted Cruz, R-Texas, and John Hoeven, R-North Dakota. While Congress is tasked with creating laws, it's the only branch of the government without a designated clerkship or fellowship for young lawyers.

"Really, when you look at the greater landscape and you compare it to the well-established judicial clerkship experience and the executive branch attorney honors programs, there's really a void when it comes to the legislative arena," said Joe Gambino, a 2013 graduate of Georgetown University Law Center who worked on the clerkship initiative as a student in Rudesill's clinic, where the professor taught before moving to Ohio State. "This bill would really fill that void and allow some of the top talent from our nation's law schools to spend a formative year in the legislative branch. That's really not an option to them right now."

The problem isn't that there are too few lawyers on Capitol Hill, Rudesill said. Rather, it's that those lawyers often aren't focused on the nuts of bolts of making law: researching and drafting bills, statutory analysis, and utilizing congressional procedure rules. Instead, lawyers are typically tasked with policy making, constituent matters and messaging, Rudesill said.

Having clerks with a deep understanding of how to create laws will benefit Congress and will help elevate Congress' status within the legal profession, he added. "The legislative experience gap is significant because we do not have people in the top ranks of the legal profession who have done legislative work from the inside," Rudesill said. "We believe that correlates to less appreciation for the role of Congress and legislation in the U.S. legal system." The proposed clerkship is intended for promising young attorneys who will take their Capitol Hill experience into other leadership roles within the legal profession, not necessarily those aspiring to government careers, he said.

December 6, 2016 at 06:07 PM | Permalink


Insane. As if we are not already over-lawyered. I was talking to someone the other day about the Praetorian Guard in Rome (we had been talking about Star Trek) and this person said that we could never have such a thing in a democracy like ours. I said, "we already do. It's called the legal profession." The president is now protected by legal memos as much as the old emperors were protected by swords.

I am no Trump fan but at least he is not a lawyer.

Posted by: Daniel | Dec 6, 2016 9:02:11 PM

An amendment to any such law should allow for tort litigation for any law drafting that falls below the standard of due care of the law drafter. Any unintended consequence resulting in damage should result in tort litigation against the drafter. Let all drafter carry appropriate insurance to compensate the victims of their carelessness.

Posted by: David Behar | Dec 7, 2016 12:28:46 AM

I have a hard time believing that recent graduates could really add much to the existing staff process. Now, if it were some sort of permanent position ... but then I would have concerns more along the lines of Daniel's.

Posted by: Soronel Haetir | Dec 7, 2016 1:04:06 AM

Well, the young-uns might actually have read the Affordable Care Act, for example.

Posted by: Fat Bastard | Dec 7, 2016 2:55:44 PM

This proposal is little more than an effort to give newly-minted lawyers another means of burnishing their resumes, in the process creating another coterie of elitists. There are already plenty of young people in Washington, D.C. and plenty of ways for students, before they finish their studies, to get exposed to the legislative process, as I did working for four months in the offices of Birch Bayh, who was then serving as a U.S. Senator from Indiana. Moreover, the proposal totally ignores the differences between judicial decision-making and law-making. Judicial decision-making involves evaluating cases in light of a predefined set of neutral principles -- teasing those principles out of decided cases is a task that law clerks often excel in. And a law clerk can have an influence on the decision. Law-making? Hardly at all. To the extent that votes on bills are the issue, party leaders, prominent constituents, and political staff appointees all have a say -- how can a recent law school graduate be expected to play in that league? To the extent that the proposed legislative clerks are expected to use their skills in a more limited area, e.g., fine-tuning legislation, Congress already has committee staffs, the Library of Congress, Washington think-tanks, articulate lobbyists and legions of others who do, or are available to do, precisely that.

Posted by: Late Inning Relief | Dec 7, 2016 3:23:29 PM

"Well, the young-uns might actually have read the Affordable Care Act, for example."

Nice quip but of course that is what staff is for -- each bill, hundreds, thousands, are not read each time by each legislator. And, since many of them are not lawyers or experts in the fields in question, each special nuance is not known to them even if they do read it. Like I can read a ten page law on regulating some specialized matter without understanding most of it. Very useful. Thus, you have staff, sometimes lawyers.

Posted by: Joe | Dec 8, 2016 11:56:07 AM

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