This is the time of year when the best and the brightest graduates of the nation's top law schools assume prestigious positions as law clerks to judges at the highest federal and state courts. This tradition of brief working relationships between exceptionally bright, theoretically astute new graduates and wise, practically grounded jurists has existed for at least a century.

    U.S. Supreme Court Justice Horace Gray initiated the practice in 1882, when he hired a Harvard honor graduate as the high court's first law clerk. Up to that time, justices often employed career "secretaries." But these clerical assistants were not necessarily trained in the law. It was Gray who launched the tradition of employing an accomplished law graduate for a short term, typically one to two years. The reason for the short tenure was twofold: first, to expose judges to the freshest legal theories developing in the nation's best law schools, while at the same time imparting to these new lawyers the wisdom and practical approaches developed by a lifetime of deciding legal controversies.

    Second, short-term assignments guarded against the key criticism of the use of law clerks: fear that judges could become unduly dependent on their clerks, allowing them to become de facto, shadow judges. This fear of a "shadow judiciary" has provoked scrutiny of the institution of law clerks since its inception.

    In 1989, a commentator in the Los Angeles Daily Journal predicted somewhat inaccurately that the purported left-leaning bent of the nation's top law schools was bound to infect the U.S. Supreme Court, through the influence of law clerks. Even trial court lawyers unsatisfied with crucial decisions sometimes suspect it was a law clerk, not the judge, who hatched the legal analysis that torpedoed their case.

    Concern over the unmonitored influence of law clerks continues, in part due to the increasing use of career law clerks. Rather than hiring recent law graduates for one or two years, growing case loads and emphasis on case disposition statistics have prompted many courts to shift to hiring career clerks, known as research attorneys. In the California Court of Appeal, research attorneys are usually experienced lawyers, not fresh graduates, and once hired, stay on for decades.

    As early as 1977, one study reported that 87 percent of law clerks at the California Court of Appeal were career research attorneys, rather than short-term, post-bar clerks. This marked departure from the short-term law clerk tradition inspired two law professors to warn in 1980 that if the trend continued, it could undermine the independence and intellectual vigor of the judiciary.

    In their path-breaking study, "Law Clerks and the Judicial Process," John Bilyeu Oakley and Robert S. Thompson predict the career clerk trend pioneered by the California Appeal Courts could spread to other states and to the federal bench, with potentially harmful results. Seventeen years after Oakley and Thompson cautioned against abandoning the tradition of short-term law clerks, recent statistics from the Administrative Office of the Courts show that short-term clerks are still preferred by federal court judges. Of the 3,212 federal law clerks employed nationwide in appellate, district and bankruptcy courts, 2,432, or approximately 76 percent, are term, as opposed to career clerks. At the Circuit Court level the percentage is even higher: 89 percent are term, serving four years or less. In 1980, Oakley and Thompson found that in California, federal judges employed short-term law clerks almost exclusively. Thus, the career law clerk appears to be gaining acceptance in the federal courts, albeit more slowly than some predicted.

    The trend toward use of career law clerks merits watching by judges and lawyers alike. Oakley and Thompson described the traditional ideal of a law clerk as a brilliant, recent graduate who brings to a court's inner sanctum innovative ideas from the outside. They warned that over-reliance on career law clerks could hasten the "bureaucratization of justice," sacrificing the intellectual development of the law for efficient but predictable results.

    In addition to the potential impact on the development of legal theory, the demise of short-term law clerks also would deprive future lawyers of an invaluable apprenticeship. Many highly placed and well-known judges, lawyers and law professors served as law clerks before embarking on their legal careers. U.S. Supreme Court Chief Justice William H. Rehnquist and Associate Justices Stephen G. Breyer and John Paul Stevens all first served the high court as law clerks. Several U.S. Ninth Circuit Court of Appeals judges clerked for federal judges early in their legal careers. And when U.S. Supreme Court judges look for clerk candidates, they frequently tap the chambers of well-regarded Circuit Court Judges. Just this summer, two clerks from the chambers of San Diego-based Ninth Circuit Senior Judge J. Clifford Wallace were selected to serve the nation's highest court for the 1997-98 term: University of Virginia graduate Scott Ballenger has joined the chambers of Justice Antonin Scalia, and Stanford graduate John Owens is clerking for Justice Ruth Bader Ginsberg. During Wallace's 25 years on the Ninth Circuit, 17 of his law clerks have gone on to clerk for U.S. Supreme Court justices.

    By promoting such exchanges between the judicial wisdom of the present and the legal leadership of the future, the law clerk tradition occupies a vital place in the development of the law. With nurturing by the judiciary, it will continue to do so.

    Pamela Lawton Wilson was a legal affairs reporter in San Diego from 1989 to 1993. She is now an associate at the civil firm of Sullivan Wertz McDade and Wallace.