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Jeremy Fogel, Mary Hoopes, & Goodwin Liu, Law Clerk Selection and Diversity: Insights from Fifty Sitting Judges of the Federal Courts of Appeals (Nov. 30, 2022), available at SSRN.

Diversity among judges affects diversity among law clerks. If what gets measured gets managed, California Supreme Court Justice Goodwin Liu opined at a recent Berkeley Judicial Institute event, the dearth of law clerk demographic data has precluded the federal judiciary from making strides toward diversifying appellate chambers. How diverse is the law clerk population? Not very, according to recent survey data by the National Association for Law Placement (NALP). The lack of diversity in one of the legal community’s coveted circles has implications not just for judicial decision-making, but also for the future of the legal profession. As we consider who rises to and through the profession—including to and through the judiciary—diversifying the profession starts with diversifying clerkship hires.

In Law Clerk Selection and Diversity: Insights from Fifty Sitting Judges of the Federal Courts of Appeals, retired Federal District Judge Jeremy Fogel, Mary Hoopes, and Liu provide readers with a rare window into one aspect of the opaque clerkship application process: circuit judges’ attitudes about and practices toward hiring diverse clerks. Relying on their relationships and stature as judges (and former clerks), the researchers collect candid insights about judges’ hiring decisions. Under the cloak of anonymity, judges explained that “There’s no monopoly over brains or qualifications; it’s a question of opportunity,” and “Diversity doesn’t mean a diminution in quality; it just means you have to be willing to look in non-traditional areas.”

The researchers conducted unrecorded Zoom interviews throughout 2020 to encourage candor. Participating judges had at least three years of appellate experience—this ensured a breadth of recent experience hiring clerks, although it limited the number of Trump appointees (three participated). Participants were neither randomly selected nor fully representative of the appellate bench. Minority judges, whose hiring strategies are of particular interest, were oversampled. The response rate was higher for Democratic than Republican appointees (71.4 percent versus 54.5 percent). The final sample of 50 judges represented 30 percent of active court of appeals judges, spanning all federal circuits with an average of fourteen years’ experience.

Judges shared their objectives for hiring; whether they consider diversity and, if so, what types; the practices they use to achieve their hiring objectives; whether they speak with their colleagues about hiring; and how best to engage their colleagues in conversations about diverse hiring. The study defined “diversity” broadly—not just gender, sexual orientation, and racial, but also law school, ideological, and socioeconomic diversity. Forty-three judges consider diversity when hiring clerks, although the types of diversity they value—and their methods for achieving this—vary. Many view their role in hiring law clerks as shaping the future of the profession and “training the next generation of attorneys.” As judges consider their “ensemble” of four law clerks, several opined about appellate clerkships “opening doors” for historically marginalized groups.

Judges who attended law schools outside the top 20 (“T20”) U.S. News and World Report rankings were more likely to hire clerks from outside the T20—76 percent of the non-T20 judges hired at least one quarter of their clerks from outside the T20, whereas 34 percent of the judges from T20 schools did. These judges sought to foster relationships between local legal communities and the bench and to develop local talent. One judge reasoned, “Whose life will [this clerkship] make a bigger difference in?”

Most judges assigned no weight or negative weight to ideological affiliation—several reported that American Constitution Society or Federalist Society on an applicant’s resume was a “warning sign” that the clerk would be “too partisan.” Other judges sought ideological diversity between themselves and their clerks. This is surprising, as studies suggest ideological alignment between judges and clerks. In fact, the researchers postulated, clerkship applicants sort themselves by applying to like-minded judges: judges hire like-minded clerks because those individuals apply. This ideological sorting is particularly pronounced among “feeder judges”—those who send large numbers of Supreme Court clerks—since Justices seek ideological fit.

Most judges sought gender, racial, and ethnic diversity. Republican appointees reported more trouble achieving gender balance than Democratic appointees. One judge remarked that “I’m not seeing a lot of women who would be drawn to the current Republican Party;” others observed that “far fewer female students are conservatives” and those “with good credentials get snatched up really quickly.” Questions of racial and ethnic diversity were more complicated. Most judges were “intentional” about this, engaging in “affirmative outreach” to “reconceptualize hiring.” Minority judges hired more minority clerks. These practices—and results—were particularly notable among Black judges. They went “out and about” in their communities—they attended affinity-group events at law schools; contacted diverse candidates they read about and encouraged them to apply; and conveyed to trusted law professors that they sought diverse applicants. Black judges, who represent just one eighth of circuit court judges, hire more than half of the Black clerks. Yet diverse judges alone cannot diversify appellate chambers.

The study fosters honest dialogue among judges about diversifying law clerk hiring. A “norm of silence” pervades courthouses; no judge wants to intrude into colleagues’ deeply personal hiring decisions. Yet many judges want to hire more diverse applicants and are interested in their colleagues’ hiring strategies. While judges might not respond well to “being told what to do” by outsiders, they listen to their peers.

Judges must take intentional steps to diversifying hiring. Relying on stereotypical credentials such as law school ranking, grades, and class rank will not achieve this. This study also has implications for judicial selection (diversity among judges affects diversity among clerks); ideological segmentation (clerkship applicants and feeder judges engage in this practice); and data transparency (more robust data are needed). The authors offer an organizational structure solution—a Clerkship Resource Liaison to serve as a conduit between judges and law schools to help them achieve their hiring objectives.

“The norm of silence will not change without a catalyst,” and judges respond to their colleagues’ opinions. As a fellow traveler in the law clerk advocacy space who understands the value of judges broaching difficult conversations with their peers, I hope Judge Fogel and Justice Liu will continue this dialogue in appellate courthouses. This topic, while “rarely broached within the judiciary,” is one of great contemporary interest among prospective clerks and the many stakeholders seeking to diversify the legal profession.

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Cite as: Aliza Shatzman, Diverse Judges and Their Diverse Clerks: A Rare Window into Appellate Law Clerk Hiring, JOTWELL (January 27, 2023) (reviewing Jeremy Fogel, Mary Hoopes, & Goodwin Liu, Law Clerk Selection and Diversity: Insights from Fifty Sitting Judges of the Federal Courts of Appeals (Nov. 30, 2022), available at SSRN), https://courtslaw.jotwell.com/diverse-judges-and-their-diverse-clerks-a-rare-window-into-appellate-law-clerk-hiring/.