Osgoode students and professors discuss their experiences of clerking in Canada
Dreaming of becoming a Supreme Court judge? You might be suffering delusions of grandeur. Or, you might need to pursue a judicial clerkship.
For members of the legal world, it is almost undeniable that clerkships, particularly at the highest court level, carry cachet and intrigue. Part of the intrigue relates to what appears to be a veil of secrecy among these coveted court positions.
The silence that surrounds clerkships, in part, stems from the security clearances and confidentiality agreements that both current and former clerks are expected to pass and abide by, even following the fulfillment of their clerkships. But confidentiality issues are not the only motivation for former clerks to remain somewhat closed books when asked to share stories about their clerking experiences. Their reticence is rooted in a deep respect not only for the institution they served but for the Justices for whom they clerked over the course of what is typically a one-year term.
For a journalist seeking the inside scoop, closed lips can be frustrating. It became commonplace early on in my interviews for this story to be told, “I can’t comment on that.” Nevertheless, it’s difficult to take issue with their recognition, not only of the sanctity of the court’s business and inner workings, but of the interaction between clerk and Justice – a relationship that the late Patricia Wald, former Chief Judge of the United States Court of Appeals for the District of Columbia Circuit, characterized as “the most intense and mutually dependent one I know of outside of marriage, parenthood, or a love affair.”
The intimacy of the judicial-clerk relationship is rooted in the isolation of the chamber. Particularly at the appellate level, judges are limited when it comes to work contacts outside their chambers. For many, their clerks are some of the very few, if not the only, people they can talk to about a particular case.
It isn’t surprising that, over the course of the year, the relationship between judge and clerk deepens, as does the loyalty that clerks develop to the Justices they serve. In the end, it doesn’t so much matter what agreements they signed. At the heart of their silence is a regard for their relationships to these judges and a duty to be respectful of the unique positions they held.
Professor Benjamin Berger, York Research Chair in Pluralism and Public Law, had the rare opportunity to clerk for then Chief Justice Beverley McLachlin at the Supreme Court in 2002. The unparalleled access to judicial thinking is what drew him to apply to clerkship.
“The essential appeal of a clerkship is that it’s the rarest opportunity to see the way in which the judicial decision-making process works from a perspective that you will not have a chance to inhabit ever again,” Berger says. “The closest you’ll get to this is if you decide to become a judge yourself.”
The precise work of Supreme Court clerks varies from judge to judge. For Berger, front-end work often involved preparing pre-hearing memoranda, or “bench memos,” which required reading arguments, identifying key issues, providing additional research, and adding his own opinions on the strengths and weaknesses of various arguments. Back-end work included supporting the judge once she started drafting reasons, and if she was writing, assisting her in drafting sections. If she was not writing, once drafts were circulated, he would offer opinions on the drafts: “It’s a lot of reading, a lot of writing, a lot of focus. A ton of learning.”
Berger recalls that, when the then Chief Justice received his memos, he would often receive a call from her: “She was really interested in kicking the tires on arguments and ideas. I would get a call, asking me to come down. I’d put on a nicer jacket, go down, and give my ideas on the case.”
While not disclosing details of their intellectual exchange, he describes Chief Justice McLachlin as “a superb model, teacher, and mentor.”
If you’re feeling especially impressed with Berger’s experience, you’re not alone. But he remains humble, despite what is an enviable relationship – one that allowed him to voice his opinions to her: “The bigger opportunity was to hear her reasoning. These jurists give you a perspective on law that you can’t get anywhere else.”
Osgoode graduate, Scott Franks, also clerked at the Supreme Court in 2016 for the Honourable Madam Justice Andromache Karakatsanis. While at Osgoode, Franks was co-president of the Osgoode Indigenous Students Association in addition to completing the intensive program in Indigenous Lands, Resources and Governments. Franks’ career trajectory always included a focus on Indigenous legal issues, communities, and clients. For him, the motivation in pursuing the study of law and applying to a clerkship was the insight that the many social problems he was confronting while doing volunteer work in Indigenous communities stemmed from a problem in Canadian law.
Given the increasing role the Supreme Court plays in making public policy, particularly in a post-Charter era, Franks was drawn to the opportunity to be a part of it, or at least, to understand the legal dynamics that help forge public policy. “I didn’t intend to clerk but a professor at Osgoode, Sonia Lawrence, encouraged me to apply to the clerkship,” Franks says. He wasn’t drawn to clerkship based on prestige, but rather, he wanted “to bridge different types of relationships.” The relationships to which Franks refers include judicial-clerk and judicial-public policy.
For Franks, the experience of clerking was deeply valuable. “It was one of the most important opportunities I’ve ever had, not only in terms of my professional path, but personally.”
A common perception of clerkships is that these positions are particularly useful to those who plan to pursue either academia or litigation. “It’s invaluable to know how the courts respond to the trial record, how they respond to reasons at the lower courts. From a litigation perspective, this is very helpful,” says Franks. He notes that, as law students, we tend to see the court as a remote institution to whom we make arguments: “There’s a humanizing aspect to clerking with respect to how we view courts because we see the exceptional work these people actually do. And litigation, in particular, needs to be humanized.”
Franks is currently pursuing Osgoode’s Research LLM, working on a thesis that explores the implementation of the Truth and Reconciliation Commission of Canada’s 2015 report with respect to calls-to-action for law schools.
Currently, 36 clerks are chosen for Supreme Court placements, four clerks per Justice. The selection process is highly competitive. According to Michel Gallant, Executive Director, Judicial Support and Protocol Services Sector at the Supreme Court of Canada, there were 228 applications in 2019 – roughly 15 percent of applicants gained placement. “The selection process is conducted by judges individually or by a selection committee for a group of judges,” says Gallant. “Candidates will be selected based on a combination of criteria, including letters of recommendation, academic excellence, ability to work as part of a team, ability to work under pressure, effective interpersonal skills, language skills and range of experience – legal and otherwise.”
But clerkships are not restricted to the Supreme Court. In Ontario, clerkship programs are offered from the Ontario Superior Court of Justice to the Federal Court to the Ontario Court of Appeal. All have similar criteria to the Supreme Court in terms of application. Clerkships fulfill the Law Society of Ontario’s articling requirement for licensing. Passing the bar exam is preferred, but not required, at any court level prior to clerkship.
Osgoode graduate, Luke Hildebrand, had the unique experience of clerking twice, once at the Ontario Superior Court of Justice and a second time at the Court of Appeal for Ontario. He describes the difference between the two clerkships largely in terms of the number of judges he served in each. The Ontario Court of Appeal assigns clerks to one or two judges for six-month terms, which allows clerks to see a given case through to fruition. At the Ontario Superior Court of Justice, clerkship is more “fast and furious,” Hildebrand notes, entailing work with multiple judges on multiple cases that doesn’t necessarily allow clerks to see each case through to completion.
Hildebrand is now in private practice as an associate at Major Sobiski Moffatt LLP, a firm dedicated to Aboriginal law issues, in Kenora, Ontario. Roughly 40 per cent of his practice is litigation, supporting the view that clerkships are well-suited to those who pursue legal careers in litigation: “My clerkship experiences have been invaluable as a litigator – the ability to see what happens behind the scenes – which you’ll never get in practice. They’ve allowed me to understand what I need to do to get my position across effectively on any given case.”
Wondering how to apply? Lisa Dufraimont, Associate Dean (Students), oversees the clerkship program at Osgoode. It should be noted that Dufraimont, herself, completed a Ontario Court of Appeal clerkship. The Office of Associate Deans (Students) vets all applications in order to catch any discrepancies. When asked about the level of competitiveness of clerkships, Dufraimont has this advice: “Don’t count yourself out because you assume you might not be competitive.” She encourages students to discuss the possibility of applying with her, as she can advise on individual levels of competency and prospect.
She also notes that there is a lot of planning involved in preparing applications and recommends candidates make their intention or query to apply known about six weeks prior to deadlines, which are typically in January. Letters of recommendation come from the Dean’s Office itself (for the Supreme Court and Ontario Court of Appeal) and/or from professors. Either way, these letters require time to coordinate.
There is a Clerkship Guide available to students at the start of an academic year, in addition to scheduled sessions in October that address more specific aspects of applying. These sessions include judges and clerks of the court, at various levels, who come to Osgoode to offer insight and to encourage applicants.
Given the remarkable opportunity to observe and engage in judicial decision-making up close, clerking can only be seen as advantageous to any career path in law, including Supreme Court judge. Applications need to be made roughly 18 months in advance of employment, so get on it early next Fall.