February 18, 2020 Appellate Issues | Winter 2020

A Peek Behind the Curtain: The Inner-Workings of the Judiciary, and Why Judges Should Address the Lack of Diversity Among Law Clerks

By Cheyenne N. Chambers

Last November, I traveled to Washington, DC, to attend my first Appellate Judges Education Institute Summit.  During this four-day conference, I had the unique opportunity to converse with dozens of appellate judges and practitioners from across the country.  Although each presentation listed on the agenda caught my attention, I was particularly eager to attend the panel entitled, “A Peek Behind the Curtain: How Judges Collaborate with Law Clerks and Staff Attorneys.”  This panel featured the Honorable Consuelo M. Callahan of the U.S. Court of Appeals for the Ninth Circuit, the Honorable Charles Day of the U.S. District Court for the District of Maryland, the Honorable Joseph Getty of the Court of Appeals of Maryland, and moderator, Stephanie Snow, a former Staff Attorney for the U.S. Court of Appeals for the Eighth Circuit. 

How Judges Collaborate with Law Clerks and Staff Attorneys

For most of the program, each distinguished panelist detailed their behind-the-scenes interactions with their law clerks and their court’s staff attorneys.  Leading the discussion was Judge Callahan, who described herself and her four law clerks (one career law clerk and three term law clerks) as a “team.”  Because of the Ninth Circuit’s busy docket—averaging 35 days of oral argument each year for active judges, plus a lively en banc court—Judge Callahan explained how her constant collaboration with her law clerks helps maintain a productive chambers. 

When a new calendar of cases arrives, Judge Callahan relies on her law clerks to read the parties’ briefs, examine the record on appeal, reference comprehensive research guides created by the Office of Staff Attorneys, and prepare a bench memorandum for her review.  These “bench memos” outline the case’s facts, procedural history, issues on appeal, arguments raised by the parties, and relevant precedents.  They also include the law clerk’s recommendation on how to resolve the matter.  

After Judge Callahan reads the bench memo, the parties’ briefs, and key portions of the record on appeal, she then asks her law clerk to present the case to her.  This practice helps Judge Callahan become more familiar with the case, but also provides an opportunity for her law clerks to sharpen their advocacy skills, and sometimes, participate in spirited (yet professional) debates over complex legal issues.  At the conclusion of each conversation, Judge Callahan is further equipped either to recommend whether oral argument is necessary or to consider which types of questions she will ask during oral argument. 

Judge Callahan also credited her law clerks for the integral role they play in drafting unpublished memorandum dispositions (“memdispos”) and published opinions in cases where she is the designated writer for the panel.  As Judge Callahan explained, she and her law clerks commonly engage in multiple rounds of revisions, until the memdispo or opinion (or concurrence or dissent) sufficiently resolves the arguments raised by the parties, and is “right on the law.”  And before she circulates any draft memdispo or opinion to other judges for their consideration, or submits any final manuscript to the Clerk’s Office for filing, Judge Callahan requires her law clerks to review each other’s drafts.  That way, as Judge Callahan noted, the memdispo or opinion will be free of any grammatical or Bluebooking errors, and that “another set of eyes” ensures that each precedent relied upon remains good law. 

There are some cases, however, that the Office of Staff Attorneys exclusively screen, read, and prepare for Judge Callahan’s review.  These cases might contain frivolous issues on appeal or fail to meet basic jurisdictional requirements, and therefore, may not need oral argument.  Before such cases are resolved, a staff attorney will present the matter to Judge Callahan and her colleagues, outlining the facts, procedural history, issues on appeal, arguments raised by the parties, and relevant precedents.  Judge Callahan explained that through this practice, some judges have built a rapport with the staff attorneys, similar to the connection they have with their law clerks.  In fact, Judge Callahan noted that she and other judges ask the staff attorneys the same pressing questions they would ask their law clerks.  During this process, if just one judge suggests oral argument, then the Office of Staff Attorneys sends the case to another panel of judges (a “merits panel”) for further review.

Because the Court of Appeals of Maryland does not have an Office of Staff Attorneys, Judge Getty explained that he must rely on his term law clerks to review all of the 100 to 120 cases before Maryland’s court of last resort each year.  Like Judge Callahan’s chambers, Judge Getty’s law clerks play an integral role in his chambers’ day-to-day operations.  Prior to oral arguments, which are scheduled between September and June of each term, Judge Getty’s law clerks are responsible for preparing bench memos and presenting the cases to him.  After oral argument, if the Chief Judge of the Court of Appeals assigns him the task of authoring an opinion, Judge Getty meets with his law clerks to create a detailed outline on how the opinion should read.  In most cases, Judge Getty’s law clerks will write the first draft, using the detailed outline as a reference.  When the first draft is completed, then Judge Getty reviews the law clerk’s work, starting with a heavy revision of the draft opinion’s introduction and factual summary.  This approach guarantees that the soon-to-be final version reflects Judge Getty’s voice and writing style.  A “good writing session” with a law clerk, according to Judge Getty, consists of revising a handful of drafts before the opinion’s completion.  On the other hand, Judge Getty acknowledged that for some opinions, he has worked on as many as 50 drafts, because either the case dealt with a set of convoluted facts or issues, or his law clerk had a difficult time expressing the majority’s line of reasoning. 

While Judge Getty’s law clerks are quite involved in oral argument preparation and opinion writing, their responsibilities do not include certain administrative matters that are special to state courts.  For instance, Judge Getty’s law clerks do not assist him with reviewing various grievances submitted against attorneys or other business affairs concerning admission to the Maryland Bar.  Judge Getty also noted that his law clerks do not help him examine the 1,000+ petitions for writ of certiorari which are filed each term at the Court of Appeals. 

The responsibilities of a federal magistrate judge’s law clerks, however, are noticeably different from those of their appellate counterparts.  Because the District Court’s docket is much swifter, especially in criminal proceedings, Judge Day expects his term law clerks to work with a sense of urgency and a need for precision: “Shoot fast, and aim straight.”  Although he also hires law clerks who are skilled researchers and legal writers, Judge Day acknowledged that he rarely authors lengthy opinions that have a long-lasting, significant precedential value, like Judge Callahan and Judge Getty.  Accordingly, Judge Day noted that his law clerks do not engage in such an extensive writing and editing process with him.  In fact, Judge Day described the fluctuating division of labor in his chambers as a balancing act between him, his law clerks, and the District Court’s staff attorneys.  For some cases, Judge Day writes the orders himself, from start to finish, while others are written primarily by his law clerks or the pro se staff attorneys, and then reviewed and approved by him. 

How Judges Select Their Law Clerks (and Prospective Mentees)

The portion of the program which resonated with me the most was the panel’s discussion about the highly-competitive clerkship hiring process.  Towards the end of the panel, Ms. Snow, the moderator, asked Judges Callahan, Getty, and Day to describe which qualities they look for when selecting future law clerks.  Each judge addressed the fundamentals first—good grades, good writing samples, and good recommendation letters from professors or former employers.  And each judge appreciated law clerks who were not overly-partisan and could respectfully disagree with them.  Judge Callahan, in particular, noted that she prefers to hire applicants with one or two years of legal experience after law school, whether by way of government service, private practice, or a prior judicial clerkship.  Moreover, Judge Callahan searches for candidates who are “smarter than [her],” with talents in certain areas of the law where she is not as well-versed, such as environmental law.  Judge Getty also expressed his interest in applicants who take the process of legal writing seriously, since writing is a law clerk’s principal duty. 

The panel then segued into a conversation about the unique mentoring relationship shared between many judges and their law clerks.  Each judge spoke warmly about the honor of training and advising, as Judge Getty described, some of the “best and brightest” young attorneys, as well as celebrating their post-clerkship successes.  In fact, for Judge Day, he is most proud of watching a newly-hired law clerk, who is a “little rough around the edges,” but who has great potential, blossom into a “better lawyer when they leave” his chambers at the end of their clerkship. 

As I listened to Judges Day, Getty, and Callahan, I thought about my two-year journey through the clerkship application process.  I remembered the time I almost maxed out my first credit card at FedEx to send hard copies of my application materials to several judges.  I reflected upon the anxiety I felt while studying for my first clerkship interview.  And I was also reminded of the many rejections (written and silent) that I experienced before eventually receiving an offer to clerk on the U.S. Court of Appeals for the Ninth Circuit. 

During my one-year clerkship, I spent hundreds of hours reading briefs, searching through volumes of exhibits and trial transcripts, studying the staff attorneys’ helpful research guides, and writing and cite checking dozens of memdispos and opinions.  My former co-clerks and judge may remember me as a law clerk who was reserved, yet unafraid to participate in a spirited debate over a complicated case.  I, however, humbly recall myself as a law clerk who stumbled over her words during her first couple of case presentations, and on a few occasions, had to write an extra draft memdispo (or three) to capture each facet of the panel’s judgment correctly.  Almost four years have passed since the end of my clerkship, but as a litigator, I still utilize many of the research, writing, and advocacy skills that I acquired and refined while working “behind the curtain.”  And I am beyond fortunate to have a judge as a mentor, who always remains just one e-mail or phone call away when I need career advice, or a last-minute pep talk before an oral argument. 

Judges Callahan, Getty, and Day are correct; given the nature of the work, it is essential for law clerks to be good writers, listeners, and communicators, as well as detail-oriented and expeditious.  But to any judge who happens to read this article, and is preparing for another year of clerkship hiring, I respectfully recommend that you also reevaluate your selection process to address the lack of diversity among law clerks. 

Why Diversity Among Judicial Law Clerks Matters

Thankfully, I had the opportunity to clerk within a diverse chambers, and from day one, I witnessed the benefits of being a “teammate” in an inclusive work environment.  During random walks to Ralphs, extended lunch breaks, or while traveling to another city for oral arguments, my co-clerks and I shared personal stories that addressed our racial, gender, religious, academic, socioeconomic, and political differences.  We also discussed our assigned cases, examining each other’s understandings of the factual allegations, the parties’ arguments, and our interpretations of the applicable laws and regulations.  This collaborative exercise not only helped my co-clerks and I polish our advocacy skills.  Because we also had to consider the arguments of those who have been historically marginalized, underrepresented, or neglected by other governmental institutions, this collaborative exercise challenged us to examine some of our implicit biases, as such deeply-harbored views of the world sometimes influenced our initial views of particular parties or issues.  Although not every conversation was comfortable, every conversation was necessary.  And while my co-clerks and I did not always agree about methods of statutory interpretation, case outcomes, or current events, I am certain that we all learned valuable lessons from one another, and as a result, became more learned attorneys.  I am also certain that our spirited deliberations equipped us to provide our judge with a more comprehensive assessment of each case. 

But when I later attended the Ninth Circuit’s annual law clerk orientation in San Francisco, I quickly discovered that not all chambers were the same.  For instance, I was taken aback by the evident lack of racial diversity in the room.  As more than 100 law clerks filled the federal courthouse’s library, I could count on only one hand the number of other African-American law clerks in the audience, including one who clerked for Judge Callahan.  There were also a few law clerks who were either surprised or curious to learn how I arrived to the Ninth Circuit by way of a “T-30” law school.  (After all, it is currently accepted within the federal clerkship world that factors such as a mere three-digit test score, or an inability to afford certain tuition rates, play a critical role in whether some of the “best and brightest” law students or attorneys can land one of the most prestigious positions in the legal profession and also gain an influential mentor in the process.) 

Orientation, which some of my colleagues described as the highlight of their clerkship, should have been one of sheer delight and pride for me.  Instead, I will always remember the stark visuals of that day as bittersweet, and unfortunately, too familiar.  Just like my law school orientation, my summer associate experience, and even now, when I appear in court, or when I attend a four-day conference in Washington, DC, with dozens of appellate judges and practitioners from across the country. 

I am not the only former law clerk of color who feels this way.  And until more judges reevaluate their hiring practices to address the lack of diversity among law clerks, future law clerks of color (and others from underrepresented communities) will also be forced to grapple with such bittersweet moments, during and after their clerkships. 

Think about it—judges have tremendous influence, and not just for obvious reasons, like resolving cases or controversies that are initiated by a diverse pool of individuals, businesses, and institutions.  Each year, judges’ law clerks transition into private practice, legal academia, and later on, for a recognizable number of them, the judiciary.  For example, seven of the nine current Justices on the U.S. Supreme Court are former federal law clerks.  Thirteen of the “T-14” law schools listed in this year’s U.S. News & World Report have deans who are former law clerks.  And many of the world’s largest law firms are filled with attorneys who received generous monetary bonuses because of their past clerkship experiences.  Now consider what these upper echelons of private practice, legal academia, and the judiciary also struggle with . . . a lack of diversity.  To address this profession-wide problem, judges have a responsibility to incorporate, at minimum, a Rooney Rule within their law clerk hiring practices.  

Last January, the Honorable Vince Chhabria of the U.S. District Court for the Northern District of California—a former law clerk—authored a timely and thought-provoking piece in The National Law Journal entitled, “Why We Should Adopt a Rooney Rule for Law Clerks.”  (The Rooney Rule is an NFL policy which requires franchise owners, when searching for a new head coach, to interview at least one candidate of color before an offer of employment is made.)  After highlighting the positive effects of the Rooney Rule in the NFL, Judge Chhabria expresses why he decided to adopt his own version for law clerk hiring: 

When I took the bench [in 2014], I was struck by how many law clerks are white and from privileged backgrounds.  This is to the detriment of the legal profession (in which people from all walks of life should have a chance to rise to the top) and the judiciary (which benefits from having people with different perspectives involved in the decision-making process). 

Judge Chhabria then acknowledges that he “will not fill a law clerk slot until [he has] interviewed at least one minority candidate and at least one candidate from a non-‘T-14’ law school (since those schools tend to have more students from less-privileged backgrounds).”  And according to Judge Chhabria, by implementing his version of a Rooney Rule, his “hiring process has been better . . . and it has resulted in stronger chambers.” 

I applaud Judge Chhabria and other judges who have acknowledged that stronger chambers are diverse chambers.  And I sincerely hope this article inspires more judges, former law clerks, and staff attorneys to continue this necessary conversation about diversity, and most importantly, take action—whether it means adopting a Rooney Rule, encouraging law students of color to apply for clerkships, visiting non-“T-14” law schools to demystify the application process further, or simply, hiring diverse law clerks.  That way, when future generations of law students and attorneys take “a peek behind the curtain,” they will see a judiciary that is more reflective of America.  

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Cheyenne N. Chambers

Cheyenne N. Chambers is an attorney with Tin, Fulton, Walker & Owen, PLLC, in Charlotte, North Carolina.  Her practice focuses on appellate and trial litigation in the areas of civil rights, criminal defense, constitutional, employment discrimination, and immigration law.  Chambers is also a Co-Chair of the American Bar Association’s Appellate Practice Subcommittee on Young Lawyers, Membership, and Diversity.  Before private practice, Chambers served as a law clerk to the Honorable Paul J. Watford of the U.S. Court of Appeals for the Ninth Circuit.  Chambers graduated cum laude from The Ohio State University Moritz College of Law, where she worked as the Executive Editor of the Ohio State Law Journal and Parliamentarian of the Black Law Students Association.