As the Supreme Court considered ending the use of race as a factor in college admissions, Justice Elena Kagan suggested the court’s decision could have implications beyond higher education — and closer to home for the federal judiciary.
Would it be appropriate for judges, Kagan asked during argument in October, to consider race when making hiring decisions, especially if the judges think they must do so to build a diverse roster of law clerks?
“The question is, when race-neutral means can’t get you there, don’t get you there, when you’ve tried and tried and they still won’t get you there, can you go race-conscious?” Kagan asked the lawyer challenging Harvard’s admissions policy.
“I don’t believe so, Justice Kagan,” the lawyer answered.
An article published online Wednesday, however, suggests that many of the nation’s appeals court judges — one step below the Supreme Court — do think about race and gender in evaluating applicants for highly coveted one-year clerkships in their chambers.
A pair of judges and a law professor interviewed 50 judges from courthouses across the country, providing a rare look at how they approach hiring for jobs that influence judicial opinions and serve as steppingstones to even more prestigious Supreme Court clerkships and posts in government, academia, and private practice.
Retired U.S. District Judge Jeremy D. Fogel, Justice Goodwin Liu of the California Supreme Court and law professor Mary S. Hoopes say they were inspired to take on the project because of their concerns about the lack of diversity in the legal profession and among the ranks of federal law clerks, in addition to their own struggles to hire clerks who reflect the diversity of law school students.
“We know we are not the only ones to experience hiring challenges, yet there seems to be little systemic inquiry into what judges who seek more diversity, however defined, can do to achieve it,” they wrote in the study sponsored by the Berkeley Judicial Institute, where Fogel is executive director.
The judges they interviewed are not identified by name in the article to encourage candid conversation. Many reported difficulty hiring Black and Latino clerks. Those with the most success hiring people of color took steps to broaden their applicant pool and to consider indicators of talent beyond law school rank and grades. Black judges, the study shows, are particularly successful in recruiting and hiring Black clerks; they made up less than one-eighth of all active appeals court judges at the time of the study, but their courts accounted for more than half of the Black law clerks.
“In short, diversity among judges affects diversity among clerks,” the authors wrote.
The report includes direct quotes from several Black judges who encouraged their colleagues to “drill deeper” and broaden their networks to find more diverse candidates, including looking beyond elite law schools. Judges who did not graduate from top-ranked law schools themselves were much more likely to hire law clerks who did not attend a Top 20 school, the study found.
“I don’t care where students went to school. You have to do your homework and dig underneath the transcript,” one judge said. “There’s no monopoly over brains or qualifications; it’s a question of opportunity.”
Another Black judge told the authors that he was sending a message by hiring large numbers of talented Black clerks.
“My work gets done, it’s high quality, it’s on time, [other chambers] know who my clerks are. … It’s not an affirmative action experience, none of that,” the judge said. “Diversity doesn’t mean a diminution in quality. It means you have to be willing to look in nontraditional areas.”
Judges have total autonomy to choose their law clerks, and they are essentially their own human resources managers and diversity, equity and inclusion officers. Many rely on long-standing networks of law professors, former clerks and law schools for recommendations.
Liu, who was a law clerk to Justice Ruth Bader Ginsburg after graduating from Yale Law School, said he too often has hired from the same law schools because he has not had the time or context to build new relationships. The article calls for more comprehensive data collection on the demographics of law clerks to spark conversations among judges and help overcome what the authors describe as a “culture of silence,” in which judges rarely discuss their hiring practices so as not to intrude on a colleague’s independence and because of competition for the best hires.
“I’m not sure judges are going to be heavily influenced by external calls for diversity. What will influence them is conversations with each other, and that’s not happening right now,” Liu said. “This is a tool to help us understand who is making decisions and who is holding important positions of responsibility.”
Interviews were conducted during the past two years with judges nominated by presidents of both parties, representing nearly 30 percent of the total active court of appeals judges. More Democratic appointees responded to randomly issued invitations than judges picked by Republicans did. Because the authors limited interviews to judges with several years of hiring experience, the most recent nominees of former president Trump were not included. The study oversampled minority judges because there are so few on the bench and because of evidence suggesting they had more success hiring minority clerks.
In general, the judges who were interviewed said they were more willing to intentionally seek out gender balance than racial diversity because they viewed race as a more sensitive topic. But nearly all said they consider race and “assign positive value” to racial diversity, with some using language strikingly similar to that employed by the universities at the center of the affirmative-action college admissions cases before the Supreme Court.
Race or gender can be a “tiebreaker” or a “plus factor,” one judge told the authors, but only if someone meets the qualifications.
“My overall goal is two women and at least one clerk of color,” another judge told the authors.
Only two of the judges interviewed said conscious consideration of race is inappropriate, with one telling the authors, “I just want the best people. It has zero to do with their skin color.”
In oral arguments for the college admissions cases, the Supreme Court’s conservative majority seemed to espouse that approach, with several justices likening any consideration of race to segregationist and discriminatory policies of the past.
Recent studies show Supreme Court clerks overall are disproportionately White and male, as are the advocates who argue before the high court. An exception are clerks working for Justice Brett M. Kavanaugh, who previously served on the U.S. Court of Appeals for the D.C. Circuit and has long made an effort to diversify his chambers. Only three of the 20 clerks Kavanaugh has hired at the Supreme Court are White men.
Beyond race and gender, most of the judges interviewed said they want ideological diversity among their clerks and do not seek out law clerks whose views match their own. But applicants tend to self-select, according to the interviews, and apply to like-minded judges.
The report said that self-selection process is concentrated, in some instances, by separate hiring timelines used by some judges. One Republican nominee said “committed conservatives” are “already hired and off the market” by the time she is hiring.
She and most judges in the study reported using a national hiring plan and online application system designed to make the process transparent and uniform, but some said their right-leaning colleagues do not follow it and instead hire future clerks through other networks long before students finish their second year of law school.
The ideological divide among clerks is hardened, the article says, because Supreme Court justices “almost uniformly” hire their clerks from the ranks of like-minded appeals court judges, with liberal justices hiring those who worked for liberal judges and conservatives justices hiring from fellow conservatives.
Nearly all judges said they aim to assemble an ensemble of clerks who complement one another. They emphasized an interest not just in racial and gender diversity, but also in socioeconomic and geographic diversity.
“I hope it doesn’t sound trite, but I do think our institutions need to look like America,” said one Republican appointee, who added that he felt “a little embarrassed” looking at a photograph of the judges in his circuit because there were so few women.
A Democratic appointee told the authors: “The cases we deal with come from a society that comes from many different complexions and I need that in my chambers. I need to have people around me who can help me be mindful of my own blind spots.”