Once upon a time, when I was a 2L at the University of Chicago, every student who wanted to clerk had to first meet with a professor on the clerkship committee. In anticipation for this meeting, my fellow students and I were required to identify a list of fifty1 judges that we were interested in applying to clerk for. The professor then provided advice and guidance on that list and each individual student’s likelihood of success of obtaining a clerkship based on the list presented.
I remember my meeting with the professor well. I was very frightened that he might tell me I didn’t have a chance at clerking, and I really wanted to clerk. My fear was, thankfully, unfounded, as he provided me with reasoned advice about the list of judges I had presented him with. My list, I think, may have looked different than that of some of my classmates because I had included every Black federal appellate court judge in the country. I specifically asked the professor about a few of these Black judges, and I remember him saying something like the following: “Most of the Black clerks in this country are hired by Black judges. Apply to them all.”
I assume (but do not know for sure) his comment wasn’t based on empirical evidence. I assume his comment was based on years of experience and knowledge. But now, we have an interview-based empirical study to prove that his comment was indeed correct. In Law Clerk Selection and Diversity: Insights from Fifty Sitting Judges of the Federal Courts of Appeals, Judge Jeremey Fogel, Professor Mary S. Hoopes, and Associate Justice Goodwin H. Liu conducted in-depth individual interviews with fifty active judges of the federal courts of appeals and demonstrate that the professor’s anecdotal advice was true.
Now, to be honest, I did not need this empirical study to know that most Black clerks are hired by Black judges. As it turned out, I was hired by a Black federal appellate court judge. When I went to the all circuit law clerk training in New Orleans, I couldn’t help but notice that the only two Black clerks in the room were myself and my co-clerk—clerks of the only Black judge in the circuit at the time. And when my colleague from law school went to their all clerk training in a different circuit, they texted me to say that they were the only Black clerk in the room (they also clerked for a Black federal appellate court judge). In short, I am painfully aware of the ways in which the legal profession enacts a multitude of barriers that make it harder for Black law students and lawyers to obtain the credentials that are considered to be the most elite and prestigious.
This is why I am immensely grateful for the careful and detailed work Judge Fogel, Professor Hoopes, and Justice Liu did to prove what was already obvious to so many of us. Their Article is expansive and aims to provide critical information and insight about law clerk diversity from actual sitting federal courts of appeals judges. The authors are overwhelmingly successful in their task. Through their in-depth interviews with federal courts of appeals judges, they gathered information about how judges hire and gleaned numerous insights. For example, they find that judges like to hire what they call an “ensemble” of law clerks with differing strengths and characteristics. They also find that Republican appointees were more likely than Democratic appointees to prioritize socioeconomic diversity when hiring law clerks. Additionally, their findings suggest that judges who graduated outside the top twenty law schools were much more likely to hire clerks from outside the top twenty schools. Interestingly, they found that most judges explicitly considered gender in clerkship hiring, but some judges felt strongly that it would be inappropriate to consider race while engaging in the hiring process. This begs some questions about why it would be proper to consider gender and not race but that analytical wrinkle is beyond the scope of this Jot. All of these findings are important and valuable. As legal educators, we should take this information in and consider it as we are advising our students.
That said, I am personally most interested in the authors’ findings related to race.
First, they find that many of the judges who state that they are supportive of racial diversity in law clerk hiring report difficulty in hiring Black and Hispanic law clerks. Second, they note, despite the above finding, that Black judges are successful in hiring Black law clerks. Based on the information they gathered, they estimate that Black judges, who make up only one-eighth of the active federal appellate court judges, are hiring about half of all Black clerks at the federal court of appeals level. As such, what the authors have found, in my view, is that there may be lost opportunities in matching clerks of color with judges who do view racial diversity to be a positive and appropriate consideration when hiring law clerks. If the study’s findings are correct that there are more judges who would like to see more racial diversity in law clerk hiring than are actually hiring demographically diverse law students, then the natural question is how could the gap between the judges’ hiring preferences and actual hiring practices be better aligned.
I lateraled from Notre Dame Law School last year, but some of the innovations that I was most proud of while there were changes implemented under the leadership of Professor Nicole Garnett to the school’s clerkship program. In particular, Professor Garnett instituted a number of practices that increased the demographic diversity of students who went on to clerk from Notre Dame. The first was a robust campaign on her part to encourage students of color and first-generation law students to clerk, even when their grades might not be in the very highest percentages of the class. The second was to do her best to figure out what judges were particularly interested in hiring demographically diverse law clerks and putting those students in front of those judges. The third, and I think perhaps the most important, was to ensure that every student who received a clerkship interview had a faculty interview prior to their clerkship interview.2 Interestingly, each of these strategies comes up, in a way, in Fogel, Hoopes, and Liu’s article.
For example, they find that “with few exceptions, judges who consider race in the context of conventional hiring criteria (i.e., top grades at top schools) reported limited success in hiring Black and Hispanic clerks.” See Draft at P. 34. When Prof. Garnett was organizing the faculty to get more law students clerkships, one of the things she would emphasize to us was the importance of explaining to judges why a student who maybe didn’t have the very top grades would still be able to do the work and be an excellent law clerk. It is imperative that law professor recommenders assuage any concerns a judge might have about the ability of a law clerk applicant to perform high-quality and excellent work. Importantly, the authors asked judges who had been successful at hiring racially diverse law clerks if they had concerns about the work product provided, and these judges overwhelmingly responded that the work was solid regardless of race, student rank in class, or law school U.S. News Ranking. See Draft at P. 47-48.
Additionally, one of the concerns expressed by the judges interviewed by Fogel, Hoopes, and Liu was confusion on how to improve the demographic diversity of their pool of law clerk candidates. See Draft at P. 37-38. Judges partially attributed the failure to diversify their law clerk hiring to a limited pool of diverse applicants. Now, some of this failure has been properly attributed to the judges themselves. If a judge were to call the clerkship coordinator at a law school and signal that they wanted more demographically diverse law clerks, I would be shocked if packets of applications weren’t in their offices shortly thereafter. Nonetheless, Fogel, Hoopes, and Liu did find examples of judges doing something quite like this and being met with resistance from law school administrators and faculty! See Draft at P. 40-41. Asking schools for a diverse pool of applicants is, however, an active strategy of recruitment, and Fogel, Hoopes, and Liu found that many judges who stated that racial diversity was of importance to them were nevertheless not engaged in active recruitment. Professor Garnett, to her credit, was engaged in active attempts to glean this information. If she found out this was important to a judge, she could then steer students to apply. That strategy—when paired with a focus on ensuring that letters of recommendation addressed concerns a judge might have—was, in my own view, incredibly effective.
Finally, Fogel, Hoopes, and Liu did find that judges were aware of a variety of ways in which disparities within students’ backgrounds and professional and familial connections could impact the law clerk hiring process. Indeed, one judge explicitly noted that “a lot of minority students don’t have the network that other students do.” Law schools must help recruit more demographically diverse law clerk applicants, but they must also advise those applicants meaningfully all the way through the application process. I think a number of law schools are doing this work, but I can say I walked into my clerkship interviews completely cold with no real preparation. I can also say that I screwed up my first interview all on my own, and I wonder if I had been mooted if I would have made the same mistakes. Thankfully, I rebounded and did better during my second interview. I spent an amazing and treasured year learning about the law and what excellent (and not excellent) advocacy looks like, while receiving the benefits of small group mentoring from a judge committed to training the next generation of lawyers. But my story could have ended quite differently.
As legal educators, we need to think about the part we play in the story of our students. Are we encouraging them? All of them? Or are we telling them, either implicitly or explicitly, to opt out early? And what are we doing to proactively put our students in positions where they can exceed the expectations they have for themselves? How can we position them to excel? Fogel, Hoopes, and Liu tell us quite a bit about what goes on in law clerk hiring—and it is now on us as legal educators to do something meaningful with it.
Editor’s note: for a previous review of this article see Aliza Shatzman, Diverse Judges and Their Diverse Clerks: A Rare Window into Appellate Law Clerk Hiring, JOTWELL (January 27, 2023).
- We were told that we were limited to applying to fifty judges, because the faculty was concerned that the power of their recommendations might be diluted if judges were receiving multiple recommendations from a faculty member for the same clerkship term.
- I participated in some of these interviews, and I believe strongly that these moots with faculty helped to level the playing field between students who did not have natural and obvious mentors to help them prepare for clerkship opportunities.
