Conservative Heritage Foundation Revives ‘Training Academy’ for Judicial Clerks

WASHINGTON — The Heritage Foundation, a conservative group that has played a leading role in moving the courts to the right, is reviving a “federal judicial clerkship academy,” according to materials posted Wednesday on the group’s website.

The foundation canceled an earlier version of the program last month after an article in The New York Times raised questions about some of its features, including requirements that participants keep teaching materials secret and promise not to use what they learned “for any purpose contrary to the mission or interest of the Heritage Foundation.”

John Malcolm, a Heritage Foundation official, said the revised program eliminated those requirements, which he said had been the subject of widespread and warranted criticism.

“We led with our chin and we got hit,” he said. “It was a self-inflicted wound.”

“The language that was in the original application was totally unnecessary and was just a misguided attempt to protect the reputations of the people who were involved,” Malcolm said. “But it was silly and we shouldn’t have done it. It was never our intention to have some kind of loyalty oath. People do not have to be loyal to the Heritage Foundation.”

The conservative legal movement has worked hard to identify and cultivate promising law students and young lawyers, partly to ensure a deep bench of potential judicial nominees. Malcolm said the new program would be open to applicants who have accepted an offer from a federal judge for a clerkship that starts in 2019.

“Anybody is welcome to apply,” he said. “The application does not say only people who have accepted clerkships with Republican-appointed judges need apply.”

Judicial clerkships, which typically last for a year, are prestigious and provide recent law school graduates with an inside view of the legal system and a sought-after credential. Law clerks work closely with judges, often preparing first drafts of judicial opinions.

Malcolm said the program would enable his group to forge valuable connections. “It allows us,” he said, “to establish relationships with very bright lawyers who are potential future stars in the legal community either on the right or on the left.”

The Heritage Foundation will pay for travel expenses to Washington, hotel rooms and meals during the two-day program in February. The faculty, which is set to include three sitting judges, is mostly but not entirely conservative, and the sessions will largely focus on practical advice, legal writing and technical legal issues like mootness and abstention.

There will also be sessions on originalism and textualism, which are modes of interpreting the Constitution and statutes that are generally but not exclusively associated with conservatives.

The revised application materials eliminated a request for a short statement about “your understanding of originalism,” replacing it with one asking for a description of “your jurisprudential philosophy.”

The participating judges are all prominent conservatives: Judge Carlos T. Bea of the U.S. Court of Appeals for the 9th Circuit, who was appointed by President George W. Bush; Judge Edith H. Jones of the 5th Circuit, who was appointed by President Ronald Reagan; and Justice Thomas R. Lee of the Utah Supreme Court, who served as a law clerk to Justice Clarence Thomas of the U.S. Supreme Court.

Critics of the canceled program said it was an attempt at indoctrination, a charge Malcolm rejected.

“The notion that over the course of a two-day conference that we could indoctrinate law students — very bright men and women who are about to complete three years of their own indoctrination at their own law schools — is preposterous on its face,” he said.

“The purpose of this is not to indoctrinate anybody,” he said. “The purpose is to provide some training in things that lots of law schools just don’t teach. You’ve only got a year, you’ve got to excel, and you’ve got to hit the ground running. You confront all sorts of things during an appellate clerkship that they just don’t teach you in law school.”

Application materials for the canceled program said it had been “made possible by generous donors, whose benefactions ultimately constitute a significant financial investment in each and every attendee.”

Malcolm said his group had not raised money earmarked for the either version of the program. “We do have generous donors,” he said, “but they’re just generous donors to the Heritage Foundation. It’s out of a general pool. We don’t have like a donor who is donating just for this purpose.”

He estimated that the program would accept perhaps 20 or 30 applicants, and he acknowledged that the earlier criticism might dampen enthusiasm.

“Frankly, the number of applicants might be down because of bad publicity,” Malcolm said. “There may be some judge who will say to their law clerks, ‘I don’t want to be associated with this.’ Or there may be some law clerks who will say. ‘I’d just as soon avoid this.'”