Law Clerk Selection And Diversity: Insights From Fifty U.S. Court Of Appeals Judges

Jeremy D. Fogel (Berkeley Judicial Institute), Mary S. Hoopes (Pepperdine) & Goodwin Liu (California Supreme Court), Law Clerk Selection and Diversity: Insights from Fifty Sitting Judges of the Federal Courts of Appeals, 137 Harv. L. Rev. 588 (2024):

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.

Todd C. Peppers (Roanoke College; Google Scholar), Thoughts on Law Clerk Diversity and Influence, 137 Harv. L. Rev. F. 99 (2024):

It is my great good fortune to have been asked to comment on the remarkable Article Law Clerk Selection and Diversity: Insights from Fifty Sitting Judges of the Federal Courts of Appeals by Judge Jeremy D. Fogel, Professor Mary S. Hoopes, and Justice Goodwin Liu. Drawing on a rich vein of data gathered pursuant to a carefully crafted research design and extensive interviews, the authors provide the most detailed account to date regarding the selection criteria used by federal appeals court judges to select their law clerks. The authors pay special attention to the role that diversity plays in picking law clerks, an important element that heretofore has not been fully explored. Before sharing my thoughts about the Article, I want to offer a short history lesson on the lack of diversity among law clerks in the federal and state courts. The employment barriers facing women, ethnic minorities, and Jewish law clerks throughout the twentieth century help place in context the current interest judges have in hiring candidates from diverse backgrounds; I believe that this interest includes an appreciation of the value of diversity, a sincere desire to rectify discriminatory hiring practices from earlier generations of judges, and a concern that not expanding clerkship selection criteria will draw public scrutiny. I will then turn my attention to Fogel, Hoopes, and Liu’s findings and offer some thoughts about future research questions.