'Law Clerk Selection and Diversity: Insights from Fifty Sitting Judges of the Federal Courts of Appeals'

'Law Clerk Selection and Diversity: Insights from Fifty Sitting Judges of the Federal Courts of Appeals'

Jeremy D. Fogel of the Berkeley Judicial Institute, Mary S. Hoopes of Pepperdine Caruso School of Law, and Goodwin Liu of the California Supreme Court authored Law Clerk Selection and Diversity: Insights From Fifty Sitting Judges of the Federal Courts of Appeals. The study examined why, despite good faith efforts, there is a persistent lack of diversity in law clerk hiring in the federal courts, particularly at the appellate level.

The authors engaged in dialogue with judges, law school clerkship advisors, and researchers, exploring how to improve outcomes in this area. The report addresses factors that may be narrowing the pool of competitive applicants, such as inadequate mentorship or potential applicants not being sufficiently aware of the range of opportunities available to them.

The study has been published in the latest issue of the Harvard Law Review (Volume 137, Issue 2). Below is the abstract:

Judicial clerkships are key positions of responsibility and coveted opportunities for career advancement. Commentators have noted that the demographics of law clerks do not align with the student population by law school, socioeconomic background, gender, race, or ethnicity, and that ideological matching is prevalent between judges and their clerks. But extant studies draw on limited data and offer little visibility into how judges actually select clerks. For this study, we conducted in-depth individual interviews with fifty active judges of the federal courts of appeals to learn how they approach law clerk selection and diversity. Our sample, though not fully representative of the judiciary, includes judges from all circuits, appointed by Presidents of both parties, with average tenure of fourteen years. The confidential interviews, which drew in part upon the peer relationship that two of us have with fellow judges, yielded rich and candid insights not captured by prior surveys.This Article reports our findings, among them: (1) With few exceptions, appellate judges hire clerks as an “ensemble” and assign positive value to diversity, although judges vary significantly in the dimensions of diversity they seek. (2) Most judges disclaim any interest in ideological alignment when hiring clerks; we situate this finding in the context of factors that contribute to ideological segmentation of the clerkship market. (3) Republican appointees, compared to Democratic appointees, more often identified socioeconomic diversity as the primary dimension of diversity they seek. (4) Judges who graduated from law schools outside the U.S. News & World Report top twenty are significantly more likely than other judges to hire clerks from schools outside the top twenty. (5) Almost all judges in our sample consider gender in clerkship hiring, and many have specific goals for gender balance. Republican appointees reported more difficulty drawing women into their applicant pool than Democratic appointees. (6) Most judges in our sample assign positive value to racial diversity and consider race to some degree in evaluating applicants, although it is important to note that some judges believe strongly that such consideration is inappropriate. (7) Many judges who view racial diversity positively nonetheless reported difficulty hiring Black and Hispanic clerks. The judges with the most robust records of minority hiring are those who make affirmative efforts to draw minority candidates into their applicant pool or place greater emphasis on indicators of talent besides grades and law school rank, or do both. (8) Black judges are particularly successful in hiring Black clerks; we estimate that Black judges, who comprised less than one-eighth of active circuit judges during our study, accounted for more than half of the Black clerks hired each year in the federal courts of appeals.These findings have implications for judicial selection; in short, diversity among judges affects diversity among clerks. Further, one of our most consistent findings is that judges do not discuss clerk hiring or diversity with each other. This silence reflects norms of judicial culture that foster collegiality and mutual deference while tending to inhibit peer-to-peer discussion of how judges select their clerks. Yet many judges want to hire more diverse clerks and would like to learn from their colleagues’ practices. We propose measures to increase transparency, facilitate peer exchange, and increase the capacity of judges to achieve their hiring objectives, whatever they may be.

The study was highlighted in several Washington Post opinion articles, Are federal judges violating the Constitution when they hire their clerks? and Here’s how federal judges think about diversity in hiring law clerks (subscription required). It is also cited in footnote 42 of Justice Sotomayor's dissenting opinion in Students for Fair Admissions v. Harvard.

Berkeley Law's coverage of the work and article is available here.

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