DEI is Not Officially Dead in the Legal Profession

This program was presented by Justice Goodwin Liu of the California Supreme Court, along with moderator Justice Luz Elena Chapa of the New Mexico Supreme Court.  Justice Liu has been on the bench for 14 years after teaching at Harvard, Columbia, and Stanford, as well as clerking for Justice Ruth Bader Ginsberg.

Justice Liu referenced an article in the Harvard Law Review that he co-authored with Jeremy D. Fogel and Mary S. Hoopes.  See Law Clerk Selection and Diversity: Insights from Fifty Sitting Judges of the Federal Courts of Appeals, 137 Harv. L. Rev. 588 (2023).  The article summarized the authors’ study of how federal circuit court judges recruit and hire law clerks.  The authors interviewed 50 active judges, inquiring   how the judges think about hiring and how they go about the process. The participating judges were promised confidentiality.

The authors invited active judges with at least three years on the bench to participate. The resulting pool, while not completely representative of the circuit-court judiciary, was diverse among: circuits; judge’s age; law school attended; appointing president; and location. The resulting sample included 15 female judges, 18 judges appointed by Republican presidents and 32 appointed by Democratic presidents, and only 20 white judges with the other 30 representing other ethnic or racial backgrounds. Only three of the interviewees were appointed by President Trump, due at least in part to the requirement of three years on the bench. Justice Liu acknowledged several eligible judges declined to participate.

The interviews were conducted by Zoom and lasted for one hour each. The authors allowed the judges to define what diversity meant to them rather than framing the questions in terms of race, gender, etc. The interviews covered the mechanics of the process that each individual judge used to recruit and hire law clerks, whether and how each judge considered diversity in the process, their actual practices and outcomes, judicial culture surrounding hiring practices, and any advice for other judges that the participants chose to share.

The authors found that—whatever their process—all of the participating judges valued academic excellence and integrity. Further, most judges focused on an “ensemble approach” to their hiring, seeking to hire clerks who would complement each other when working together. Approximately half the judges said they deliberately hired from law schools outside the top twenty as ranked by U.S. News & World Report; others chose to focus on local law schools. Those judges who were “feeder judges” sending multiple clerks on to U.S. Supreme Court clerkships, however, did tend to hire from elite law schools. A significant factor turned out to be the judge’s own law school; judges who attended non-top-20 schools hired far more clerks from non-top-20 schools.

Nearly all of the judges considered gender diversity in their hiring. Most judges assigned a positive value to racial diversity, with some considering race to some degree while other judges strongly believed that such consideration was inappropriate. Judges indicated a wide understanding of diversity to include gender, race, ethnicity, sexual orientation, economic background, ideological views, age, and even whether the applicant was in the first generation of the family to attend college or law school. Judges valued having an ensemble in their chambers both because having these different viewpoints in their chambers improved decision-making and because it enhances the public perception of the judiciary’s integrity. As a third reason, some judges considered it important to extend opportunities to members of groups underrepresented in the legal profession.

The study did find some differences between Republican appointees and Democratic appointees. Republican appointees more often reported socioeconomic diversity as the primary dimension of diversity that they sought. Further, Republican appointees reported more difficulty in drawing women into their applicant pools.

Most of the interviewed judges indicated that they did not consider ideology in hiring decisions, although some did consider ideology with the goal of getting contrasting opinions in their chambers. Very few judges of those interviewed hired based upon ideology. Justice Liu noted, however, that there is a group of judges, mostly conservative, who may focus more in this area but who declined to participate in the interview process.

Despite the positive view of racial diversity held by many judges, many reported difficulties in hiring Black or Hispanic law clerks. Those judges with the most robust records of minority hiring were those who made affirmative efforts to draw minority candidates into their applicant pool or placed greater emphasis on indicators of talent beyond grades or law school rank. The study found that Black judges were particularly successful in hiring Black clerks. The authors estimated that Black judges comprise less than one-eighth of the active circuit judges at the time of the interview process, but they accounted for more than half of the Black clerks hired each year. In other words, diversity among judges affects diversity among law clerks, with all the implications for future judicial selection arising from clerkship experience.

The authors discovered that judges do not discuss clerk hiring or diversity with other judges. They attributed this silence to the judicial culture of fostering collegiality and mutual deference. However, many judges also expressed a desire to learn from their peers’ practices.

Of the 50 judges interviewed, the authors found that two believed that color-blindness was appropriate. Another five appreciated racial diversity but did not make an attempt to seek it out. Nearly half (24) indicated that they embraced racial diversity as a positive but struggled to achieve their goals due to a shortage of candidates. The remaining 19 judges took affirmative steps to attract minority candidates and/or looked beyond academics or law-review titles as their criteria. The majority of these judges were themselves minorities.

The authors did ask the participating judges about their experiences with law clerks who simply did not work out. Those judges reported no relationship to law school grades or class rank. Yet many judges still rely on such criteria in their hiring decisions.

Justice Liu gave an example from his own experience. He reached out to a former colleague at a top 20 law school and asked about minority students with excellent credentials. He learned of one Black woman student who had not applied for a clerkship but instead had accepted a job offer from a premier New York law firm. She had not applied for a clerkship because no one had suggested clerkship as a viable path for her. Justice Liu reached out to her, and she accepted a clerkship in his chambers that she served after two years at her chosen firm. She served well and returned to that same firm afterwards. Justice Liu then discovered that, having had a Black clerk in his chambers, he saw a significant increase in Black applicants from that same top 20 law school in future years. He indicated that judges who take the affirmative steps to encourage minority applicants and develop a track record of diverse hires are likely to have a much more diverse applicant pool from which to choose their clerks. Put simply, opening a pipeline of diverse applicants proved to be quite simple.

Justice Liu suggested more transparency and data about clerk hiring. While judges are reluctant to intrude on other judges’ prerogatives, many judges did express a desire to learn how other judges were able to increase diversity in their chambers. He further suggested that some infrastructure changes might be helpful in this regard, perhaps having a senior staff person responsible for efforts to expand the applicant pool instead of putting the burden on the judges. In effect, having a staff person to act as a kind of “broker” to help judges get a diverse applicant pool from which to make their hires would help them to achieve their objectives. As his own experience suggested, one hire could effectively open the pipeline, giving judges more options from which to choose in their hiring.