Every year, a few of our top students are foreign citizens. Can they apply for federal judicial clerkships?
The answer it turns out, is generally yes, if they're from countries that have a qualifying defense treaty (or some other qualifying treaty) with the U.S.: "Argentina, Australia, Bahamas, Belgium, Bolivia, Brazil, Bulgaria, Canada, Chile, Colombia, Costa Rica, Cuba (as a signatory of the Rio Treaty in 1947), Czech Republic, Denmark, Dominican Republic, Ecuador, El Salvador, Estonia, France, Germany, Greece, Guatemala, Haiti, Honduras, Hungary, Iceland, Italy, Japan, Korea (Republic of), Latvia, Lithuania, Luxembourg, Netherlands, New Zealand, Nicaragua, Norway, Panama, Paraguay, Peru, Philippines, Poland, Portugal, Romania, Slovak Republic, Slovenia, Spain, Thailand, Trinidad and Tobago, Turkey, United Kingdom, Uruguay, and Venezuela." They may need to upgrade their education visa (if that's what they have) to a temporary work visa, but apparently that's not that hard to do, and happens often enough. (I'm speaking here only of federal clerkships; I don't know if some states imposed different rules for their judiciaries.)
Naturally, some judges may prefer to hire U.S. citizens rather than noncitizens, and especially than noncitizens for whom some immigration law hoops would have to be jumped through — to my knowledge they are not restrained from implementing such a preference — but I suspect that many judges don't care much about that. So if you're one of those darned furriners a citizen of one of our fine friends and allies except for Canada, damn it, don't feel reluctant to apply.
UPDATE: Peter Spiro (Opinio Juris) asks a broader policy question about this.
This is not legal advice and I am not a lawyer, just an immigrant who is now naturalized and well beyond all of this good stuff.
alienage is a quasi-suspect classification that receives heightened scrutiny:Nyquist v. Mauclet, 432 U.S. 1, 7 (1977) (internal citations omitted). while i am not familiar with the law concerning constitutional restrictions on employment discrimination by government employers based on quasi-suspect classifications, it seems very plausible that this imposes significant limits on judges' ability to discriminate against noncitizens - surely judges must be constitutionally barred from discriminating against members of a quasi-suspect class simply because they are prejudiced against members of the class!
good luck winning such a case in court, though.
richmondlawyer: I don't want to make trouble, but it seems that Zimbabwe is not on the approved countries list. Might this person also be a citizen of some other approved country?
May I add a couple of points to this fine reminder. First, note that something like the converse, although focusing more on the source of one's education than on one's citizenship, also occurs: some individuals with US law degrees have clerked for foreign courts. It has occurred, to my knowledge, regularly with the Israeli Supreme Court, and also with the Supreme Court of Canada. I don't know whether all those clerks were themselves Israeli or Canadian citizens, and perhaps someone else has more information. Second and relatedly, it suggests that Eugene's post may apply not only to non-US citizens who nevertheless have attended a US law school, but also to non-US citizens whose legal training occurred elsewhere. One might debate whether these clerks had adequate training, regardless of whether they're being imported into the US or exported to other countries's courts, and particularly whether they fully appreciate subtle nuances in local doctrine, but if they come from a country with a reasonably similar common-law and constitutional set of doctrines, they may well have a sufficient skill set to serve well as clerks. (Mine was a hybrid case; I'd done some of both my main law degree and my graduate law degree in the States, although my LL.B. was from a Canadian school.)
Second, for Canadians at least, another basis for entry and permission to work may come through NAFTA, which has relevant provisions for legal professionals. The NAFTA visa is a short-term but renewable visa.
Third, at least if you have not been to law school in the US, keep in mind that another hurdle you will want to anticipate has to do with the state bar you anticipate joining. Because I knew that individuals with Canadian law degrees are eligible to take the New York bar, and that DC allows New York bar members to waive in, I did not until quite late in the game fully appreciate that DC's guild-restrictive bar rules won't (or wouldn't, at the time) allow you to waive in, even if you were eligible for bar membership under a waivable state, without an adequate number of credits from an ABA-accredited school, and that those credits must involve subjects tested on the bar exam -- a restriction that, in effect, counts out of eligibility for the DC bar most foreign lawyers with US LL.M. degrees. This is, I think, an imperfect precis of the bar rules that applied at the time; the upshot, however, was that, thanks to some kind interventions, I found myself taking night classes at a local law school to reach a sufficient number of US credits, and that I was one of the 6 or so people (to exaggerate slightly) who actually sat for the DC bar. Think ahead!
Finally, despite their overtones of sovereignty, I think Peter Spiro's concerns are overstated, since, at least ideally, clerks serve their judges and not the other way around. To be sure, they may influence their judges in a variety of ways, but the power of decision rests with the judge and there is nothing undue or improper about the precise form of influence that clerks will generally wield with their bosses (i.e., pointing out logical problems in an argument). Note, too, that, whatever the temptation to do so, one should not conflate Spiro's argument with the argument about whether US judges should consult foreign sources of law. A foreign clerk may influence his judge with respect to how to interpret *US* legal sources (i.e., suggesting the best interpretation of a prior US precedent) without ever referring to foreign law.
But I'd empasize the "in theory" - in practice, the alternative citizenship is unlikely to make any difference, and as a matter of social fact the non-citizen may be very much a part of the community otherwise delimited by citizenship, so that they're not really foreign at all.
In my internships at both NY state court and the SDNY I had to still pledge to uphold the Constitution. Could a non-U.S. citizen truly and in good faith take that oath?
But I must ask: 1) Is it so clear that a non-US citizen has "no demonstrated allegiance to the US or the US Constitution?" Keep in mind that such an individual has, in most cases, voluntarily relocated to this country and spent at least three years here steeping himself or herself in the American legal tradition, and may well have already become a member of the bar (for which citizenship is not required), signaling his or her still deeper commitment to the local profession. Not incidentally, such a person has also foregone opportunities in his or her own home country, since legal educations are not always so easily transferred between countries. I don't mean to wax too romantic here; surely some of these moves could be described in purely opportunistic economic terms (although an economically motivated commitment may be a real commitment nonetheless, or may be accompanied by broader reasons for commitment). But many non-citizens in the situation you describe, a fair number of whom are eager for citizenship and on their way to getting it, have made a deliberate and voluntary commitment to the United States, and are all the more committed to this country by virtue of the element of voluntarism involved in their move here. I have in mind a pair of brothers who, if I remember correctly, emigrated from the Soviet Union. And as I've written before, there's a reason I'm in the US and not Canada.
2) Why does a US citizen by birth necessarily have a "demonstrated allegiance to the US or the US Constitution?" Surely they usually have such an allegiance, but do they have a *demonstrated* allegiance? If that demonstrable commitment simply consists of the fact that they have opted to remain in the US rather than leave, why is the converse situation of voluntarily coming to the US not itself a demonstration of at least potential allegiance? Or do we give citizens of a nation a pass on such questions simply because they are citizens? That's not an implausible answer, and it has some intuitive appeal, but is it a good answer?
Part of the answer to both questions is that we do not assume allegiance in either case, but instead ask such individuals to take an oath. The answer to your question on this point, I think, is that non-citizens can, in good faith, take such an oath (in fact, you're talking to one of them), and conversely some US citizens may take such an oath in bad faith. The oath question is complicated and I think Sanford Levinson's writing richly explores it in greater detail and with greater skill than I can here.
Finally, while immigration law often asks the question you asked -- are there American citizens also able to do the job -- doesn't a judge's view that a particular clerk applicant is the one he or she wants to hire say *something* about whether there are other equally qualified applicants, at least in the judge's view? To some degree, hasn't the market spoken? If judges strive, all things considered, to hire the best applicants for the job, and some of them choose to hire non-citizens for those jobs, then is it necessarily true that there other equally qualified applicants who are also citizens? (There is no wage differential here, and judges aren't playing with their own money, so those considerations don't apply here; they're just looking for the best qualified clerk applicants.) And in any event, why should the presence of competing citizen-applicants matter? If I may ask this in a friendly way, what other restraints on market competition do you favor?
(I should note that when I was a law clerk I did take the usual oath/affirmation, but I assume that non-citizens would take some variant of it that doesn't acquire citizen-like allegiance to the nation, and that this would be just fine precisely for the reasons I mention.)
You wrote:
"I ask as an interested party: I'm a Canadian studying law at Texas, and I'm going through the clerkship application process right now. If you think I'm making a mistake, I'd love to know why!"
I should have qualified my statement more carefully - a federal clerkship can be very useful for a foreigner from a country with a legal system that is similar to the U.S. system, i.e. common law case-based tradition. Most of the foreigners I deal with, and those I had in mind, are from countries with legal systems in either the German or French civil law tradition. For law students from these countries, it can still be incredibly useful to spend a summer working for a corporate law firm in NY since it gives them a good insight into the inner workings of the firms they may negotiate with in the future, after they have returned to their home countries.
Regarding the citizen of Zimbabwe who is currently serving as a SCOTUS clerk, I don't know whether he has dual citizenship, though I suspect he may also be a British citizen. I can tell you that he was slated to clerk for Chief Justice Rehnquist, and I understand that the Chief Justice's death left him, for a short period of time, uncertain as to his future status. I suspect, though, that after clerking for Chief Justice Roberts he would be able to qualify for the sort of visa that allows foreigners with unique and exceptional skills to live and work within the U.S.
With regard to the question of "allegiance" to the Constitution, I think that any student who has put himself in the position to be eligible for a Supreme Court clerkship has demonstrated his dedication to the law, and I think it is extraordinarily far-fetched to think that such an accomplished individual might in some way subvert the Constitution. There is just not a realistic danger there.
No, no way. Let them study here, but helping to craft opinions? Lets have some Taliban on Defense Sec. Rumsfeld's staff, while you are at it.