When I arrived at Yorkside, a casual pizza-and-diner-type eatery just down the street from the law school, Jeremy was already standing outside. He pretended to peruse the menu, even though he’d get the same thing he always got: a cheeseburger, with Swiss and lettuce and tomato, without the bun. His near-pathological aversion to carbs helped him stay extremely thin — perhaps too thin, as I would often tell him. I was a size two, in pretty good shape, but hanging out with Jeremy often made me feel fat.
A waitress, neither surly nor friendly, seated us in a roomy booth near the back, then took our drink order. I was grateful for the relatively private table. We decided to meet at Yorkside precisely to avoid the law school cafeteria (and not just because of the mediocre food). The Yale Law School dining hall, at the height of clerkship application season for third-year law students, was a hive of anxiety and competitiveness. It was simply easier to avoid one’s classmates during this short but stressful period in early September.
My friendship with Jeremy Silverstein dated back to our first year of law school, when we were in the same “small group” (Yale-speak for a 1L class section). We frequently found ourselves on opposite sides of classroom debates: I was a moderate, which passed for conservative at Yale Law School, while Jeremy was very liberal, even by Yale standards. But we bonded over a shared love of good Indian food and bad television. Now, as 3Ls, we served together as articles editors for the Yale Law Journal, spending many hours together in the law review office arguing over which pieces to accept for publication. I had run unsuccessfully for editor-in-chief; not getting it was a deep disappointment, but getting to work so closely with Jeremy was a consolation prize.
The waitress brought us our Diet Cokes, took our food order — cheeseburger sans bun for Jeremy, a chicken Caesar salad (dressing on the side) for me — and ambled away.
Jeremy and I engaged in small talk — the courses we were taking, the latest Journal submissions, gossip about a potentially philandering professor — before tackling the topic we had come to Yorkside to talk about: which clerkship interviews we had scored. Due to our different political views, we were applying to different slates of judges, meaning that we weren’t competing head to head for the same jobs. This allowed us to discuss clerkship applications without freaking each other out.
“So, Miss Audrey,” said Jeremy, squeezing lemon into his drink with a chemist’s precision, “tell me which judges you’re interviewing with.”
“Well, Mr. Silverstein, why don’t you tell me about your interview schedule?”
“I asked you first,” he said — and he was correct. The playground rule has a legal counterpart: first in time, first in right.
I smiled flirtatiously. Jeremy was a little too skinny, but cute. I sometimes wondered what our relationship would be like if he weren’t gay.
“Right now I have four interviews scheduled,” I said, in as matter-of-fact a way as possible. But I knew that four was impressive — and so did Jeremy. His eyes grew wide.
“Well well, very nice,” he said. “I kind of hate you right now.”
“Oh come on, I’m sure you’re doing quite well for yourself. How many do you have lined up?”
“Almost as many as you. But we’ll get to me later. So, tell me, who are you seeing?”
“Let’s see,” I said, pretending to search my memory, when actually he could have woken me up at two in the morning and I could have blurted out these names instantly. “Barbara McDaniel.”
“You applied to a district court judge?”
“You’re such a snob! District court clerkships are often better experiences than circuit court clerkships,” I said. “And it’s not just any district — it’s the Southern District of New York, the best trial court bench in the country. It gets major cases. McDaniel handled a bunch of the WorldCom cases. Many S.D.N.Y. clerkships get more applicants than certain circuit court clerkships.”
“That may very well be,” said Jeremy, “but district court is district court, and circuit court is circuit court. In district court, you’ll spend all your time dealing with crap like motions practice, habeas cases, and discovery disputes. Trust me, I know — I interned for a district judge after 1L year. Wouldn’t you rather be clerking for an appeals court, drafting opinions on big sexy issues of law?”
Jeremy was a good person and one of my best friends, but he could be a horrible snob. In his defense, he was a product of his environment. Clerking for a district court judge, a trial-level judge in the federal system, was enormously prestigious, and these clerkships were extremely hard to procure. But at Yale, if you wound up clerking for a district judge after graduation, you would be quietly looked down upon by some of your classmates. There were some exceptions to this rule — it was okay to go district if you really wanted to be a trial lawyer, if you clerked for the right judge on the right district, or if you followed it up with an appeals-court clerkship on one of the circuits — but it generally held true.
“All of my other interviews are circuit,” I said. “Michael DeConcini, Third Circuit.”
“Good judge. Chambers in Newark. Newark sucks, but you could live in New York and do the reverse commute.”
“Steven Collins, on the Eighth Circuit.”
“The Eighth Circuit…. Isn’t that, like, in flyover country?”
“I’m more focused on judges than geography,” I said. “Collins is young, and new. He’s a Yalie, like us. He clerked for the Supreme Court and served as U.S. Attorney. I could learn so much from clerking for him. And he has the potential to become a big feeder judge in a few years.”
A feeder judge is a judge with a track record of “feeding” his or her clerks into Supreme Court clerkships. Feeder judges, almost of them appeals court judges, tended to be some of the most high-profile and well-respected members of the federal judiciary. Many of them went on to serve on the high court themselves.
“Aren’t his chambers in, like, Iowa?” asked Jeremy. “Dubuque, or Cedar Rapids, or some other god-awful place like that?”
“Des Moines. It’s a real city. The metro area has around 500,000 people.”
“Puh-leeze. I bet not one of those 500,000 people owns a pair of skinny jeans.”
“I am quite confident they have discovered skinny jeans in Iowa. People in the state wear a lot of denim.”
“And you’ll have a grand old time out there, as someone who’s half-Asian. Sure, you look pretty white thanks to your Irish side, but at least some people will notice something and ask you: ‘What are you?’ Not the polite, you know, ‘What is your ethnic background, if you don’t mind my asking?’ They’ll just up and ask you, point-blank: ‘What are you?’”
“Jeremy, you’re the one who’s prejudiced — prejudiced towards the Midwest!”
“Well, geography aside, Collins is a little conservative for my tastes,” said Jeremy. “But I know we feel differently about these things. Who’s your last interview?”
“Stinson. Christina Wong Stinson. Former district judge in Los Angeles, now on the Ninth Circuit?”
“Hello! You don’t need to say that as a question! Or tell me what court Stinson sits on! I go to Yale Law School too!” said Jeremy. “Stinson is major. Possible SCOTUS nominee in a Republican administration. She’d be the first Asian American on the Court. Feeder judge to the Dark Side — um, I mean, the conservative justices. Is she your first choice?”
“I feel very lucky to have all these great interviews, and each judge has his or her own unique strengths….”
Jeremy gave me a withering look. I was busted.
“Yes, yes,” I said, laughing. “Stinson is my top choice.”
The truth is, I didn’t want to admit how badly I wanted to clerk for Judge Stinson. Articulating a desire and pursuing it avidly makes it so much worse when you fail. I thought of the William James quotation: “With no attempt there can be no failure; with no failure, no humiliation.” But Jeremy and I were so close that there was no sense in hiding such things from him.
“So,” he asked, “I assume you’ve scheduled her first of your interviews? So you can bag on the others if she makes you an offer?”
“I have scheduled her first,” I said, “but mainly because that’s what she offered. She seems to be one of the judges who does all of her interviews on the first day they’re allowed to under the Law Clerk Hiring Plan. I’ve scheduled DeConcini and Collins for early the following week. And McDaniel, she’s out of town for some conference, so I’m not supposed to see her until the week after.”
“Well, many feeder judges move fast, and Christina Wong Stinson is a feeder. Nicely done, girlfriend.”
Jeremy raised his Diet Coke with lemon in my direction; we clinked glasses. But I felt I had to temper his enthusiasm.
“Stinson is a feeder judge, but not a top top feeder. Out of her four clerks a year, she sends maybe one of them on to the Court. It’s not a done deal that her clerks go on to the Supreme Court. You have to excel during the clerkship.”
“That’s fair,” said Jeremy. “You probably have to be her favorite clerk in your year. She’s no Buttig.”
Ah yes, the Honorable M. Frank Buttig (pronounced “BOOT-ig” rather than “BUTT-ig,” as he tirelessly insisted). Buttig, a colleague of Stinson on the Ninth Circuit, was a brilliant jurist and possible Supreme Court nominee (handicapped mainly by his white-maleness, and partly by his reputation for being difficult). He was also, far and away, the top feeder judge in the entire country. Landing a clerkship with Buttig was basically the same thing as landing a Supreme Court clerkship, since he had an almost perfect record of feeding his clerks to SCOTUS (with the help of his vast network of his former clerks, the Buttig Mafia).
“Judge Buttig — I kind of hate him sometimes,” I said. “He and his clerks hog all the Supreme Court clerkships. It’s not fair.”
“You wouldn’t hate Buttig if you had an interview with him!”
“True,” I said, sighing.
“If only you had won the editor-in-chief election,” said Jeremy. “Then you might have gotten a Buttig interview.”
“Stop torturing me! I know this is sour grapes on my part,” I said. “I’d be a lock for a Supreme Court clerkship as a Yale Law Journal EIC with a Buttig clerkship. And Buttig is an amazing judge who has written some great opinions.”
“Great if you oppose the Ninth Circuit’s efforts to bring justice and a progressive agenda to the western United States!”
I laughed. The Ninth Circuit was the nation’s most left-leaning appeals court, known for issuing decisions that were embraced by the ACLU and NPR crowds (before getting overturned by the Supreme Court). Buttig was one of a handful of conservative judges who would occasionally get in the liberals’ way.
The waitress arrived with our food plates, placing them before us unceremoniously, and asked us if we needed anything else. We did not.
“So,” I asked Jeremy, as I added trace amounts of dressing to my salad, “those are all my interviews. Now tell me all about yours….”
<—Previously: Chapter 2: Not That Kind of Clerk
Subsequently—>Chapter 4: The Forces of Darkness