For recent law school graduates, clerking for a federal judge can be a key career stepping stone, and the hiring process is both highly opaque and famously nerve-wracking. Even as law school cohorts have become more diverse, the clerkship ranks have remained heavily skewed toward white men, particularly from a handful of top-ranked law schools.
Leaders from Berkeley Law’s Berkeley Judicial Institute wanted to know why. So they asked 50 federal judges how and why they hire particular clerks in the first qualitative study of the issue. These conversations yielded a number of insights for law students, law schools, and other judges, from how much an aspiring clerk’s cover letter matters to the fact that “diversity” doesn’t mean the same thing to every judge. The pathbreaking study will be published in the Harvard Law Review later this year.
In this episode, Berkeley Law Dean Erwin Chemerinsky talks to the study’s three authors: Former U.S. District Judge for the Northern District of California Jeremy Fogel, who’s now the executive director of BJI; California Supreme Court Associate Justice Goodwin Liu; and Mary Hoopes, an associate professor of law at Pepperdine Caruso School of Law and co-director of the William Matthew Byrne Jr. Judicial Clerkship Institute.
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ERWIN CHEMERINSKY: Hello, listeners. I’m Erwin Chemerinsky, dean of Berkeley Law. And this is More Just, a podcast how law schools can help solve society’s most difficult problems.
The federal clerkship hiring process is famously high stress, and opaque, and a tremendous career benefit to those who obtain clerkships. But the demographics of these clerkships lag despite years of good intentions and earnest effort. Informal studies show the ranks are dominated by white men with top law schools, especially Yale and Harvard.
Researchers from the Berkeley Judicial Institute set out to understand why the mix has been so difficult to change. Their groundbreaking study featuring interviews with 50 federal judges– they teased out some trends and potential new practice for hiring and found that diversity doesn’t mean the same thing to every judge. I’m delighted to have all three authors of the study to publish later this year in the Harvard Law Review. Let me briefly introduce them.
Judge Jeremy Fogel was a United States district court judge for the Northern District of California. He spent seven years leading the Federal Judicial Center, the federal courts education and research arm, before becoming the founding director of the Berkeley Judicial Institute in 2018.
California Supreme Court Associate Justice Goodwin Liu was a Berkeley Law professor before joining the state’s highest court in 2011. Before going to academia, he clerked for Judge David Tatel of the United States Court of Appeals for the District of Columbia Circuit and for Supreme Court Justice Ruth Bader Ginsburg.
Mary Hoopes is an associate professor of law at the Pepperdine Caruso School of Law and co-director of the William Matthew Byrne Jr. Judicial Clerkship Institute. She earned her PhD from Berkeley Law’s Jurisprudence and Social Policy Program and was Berkeley Judicial Institute’s research director when the study began.
Jeremy, Goodwin, Mary, thank you so much for doing this and congratulations on your article, which is so important and pathbreaking. So let me start with the obvious question, why did you decide to do the study and write this article?
JEREMY FOGEL: Well, I’m going to start, Erwin. And thank you so much for having us and also just for your steadfast support of BJI, which without this study would not have happened. And just like BJI, it got started when you and I had a breakfast meeting in DC a number of years ago. That’s how this study got started.
After Goodwin became aware that BJI was going to be a going concern– he was in Washington, DC where I was at the time. And he said, why don’t we get together? And we had breakfast, and we started talking about clerkships.
And he said that this was a project that he was very interested in and thought that we had a great opportunity to combine the academic side of things that he represented, the work he had done with others on this area of clerkships, particularly as it affects students and law schools.
And then using the context that I had in the judiciary as a result of my time at the FJC and just having been a judge for as long as I was, that we could find a way to combine our networks and come up with something that was really the first-ever qualitative study of clerkship hiring.
There had been some quantitative studies with data and so forth, but there had never really been a look at what was going on in the minds of the judges who made the hiring decisions. So it was something we had a really great conversation about. And we decided it’s something we should do together.
And then not long after that, Mary agreed to come to Berkeley with me and be the research director for the Berkeley Judicial Institute. And that’s where we all got going. It was in the incubator for quite a while. And then we spent some time developing our protocols and interview formats and deciding who we wanted to interview and all those kinds of research decisions. But that was the origin.
ERWIN CHEMERINSKY: In your article, fairly early on, you present statistics, some of which come nationalization of law placement. And then from 2019 and according to their statistics, those going into clerkships– 4.1% were African-American graduates, 6% were Asian-American graduates, 7.9% were ex-graduates, and 79.2% were white graduates.
And so what you were just saying– your study is to try to provide an explanation for this and hopefully a direction forward. I think the next obvious question is, how did you go about doing this study? What was the methodology that you used?
GOODWIN LIU: So I’ll jump in, and Mary and Jeremy can add. So I think it’s fair to say, Erwin, that we initially approached this topic with the numbers that you mentioned very much at the front of our mind because they had been published so many times and now does a fairly good job with the limited data that they have in providing these statistics.
But it quickly became apparent to us because we consulted with a variety of colleagues in confidential focus groups with sitting judges that we didn’t need to carry into our project a preset definition of diversity. We had our own interests, of course. But the best way to get judges to discuss this topic with us was not to even come in with our own definition of diversity, but rather to approach them and ask how they think about it.
And it turns out that was a great piece of advice because we got some very interesting answers from people as to all the variety of dimensions that they think about and consider in the process. And actually that, I think, was just helpful in setting a tone of our being open basically to learning instead of saying, what are you doing about race and gender diversity in clerkships? Rather, we said, how do you think about diversity?
The other piece of advice that we got was that when we first started, we thought, well, we would do the usual things. Maybe we would survey judges. We would have a big broad pool of data.
But the focus groups told us that, most importantly, judges aren’t going to give you really rich information and maybe not even candid information if you survey them with an impersonal tool that they don’t trust. The only way you’re going to really get great information from people is if you sit down face-to-face and actually talk to them.
And this was actually a good thing insofar as– the advice to us was, the two of you, meaning myself and Jeremy, being judges had that entree with colleagues, and that they would actually talk to us. And at some point, we all looked at each other and said, are we really going to do this? We’re going to sit down and talk to everyone one-on-one.
And this whole process was aided, it turns out, fortuitously by the pandemic. I think initially Jeremy and I had thought, actually, we’re going to have to go and sit down with these people one-on-one in their chambers and actually go visit them and talk to them. And we were thinking about a quite ambitious project.
But it turns out the timing of it– we didn’t obviously foresee. No one could foresee that there would be a global pandemic, which then got everyone quite used to the online medium of Zoom. And so by the time we did this study, we did it all online. And people were very comfortable and candid with the format.
And it was in this intimate way Mary, Jeremy, and I, sitting down with each person in a confidential format, just talking. And it turned out to be one of the most rewarding experiences personally I think just to hear the quality of thought that our colleagues give to how they hire. And hopefully, we were able to capture that in our study.
JEREMY FOGEL: I would just add saying that I think it was really fortuitous too because we had said, well, how are we going to travel and talk to all these judges in person? Apart from not having to do that, I think people maybe were more candid. I have no way of proving this, but my impression is that people were more candid in the Zoom format than they would have been if we’d been sitting in their office.
ERWIN CHEMERINSKY: I also think something that Goodwin touched on that the fact that the two of you are judges really made an enormous difference. It gave you a unique ability to have the conversation, which what gives this study so much importance.
Well, I’d like to talk about the conclusion of the study and maybe to go in order in which you cover it in the article. One topic you talked about is what law schools produced graduates who get hired as clerkships, and maybe talk a little bit about that, and then just go in order through some of the other points that you make.
MARY HOOPES: Sure. I think the law schools that was one of our more interesting findings and really led us to reflect on the notion that diversity among judges will likely lead to diversity among law clerks. So we looked at the law schools that the judges in our sample had attended.
And we found that among judges who had attended one of the top 20 schools, which we refer to as the elite schools– among judges who had attended these elite schools, about a third of them hired at least a quarter of their clerks from law schools outside of the top 20, where judges who had not attended a top 20 law school, more than 3/4 of them hired at least a quarter of their clerks from schools outside of the top 20. And so that was a pretty striking difference.
ERWIN CHEMERINSKY: In terms of why we should care about that, I assume the notion is that if we broaden the pool of law schools, we’re going to broaden the people who might get hired, and that will help lead to more diversity in who gets hired.
MARY HOOPES: I think so, yes. Racial diversity and diversity along a broader range of dimensions like socioeconomic. For example, judges talked about– a big part of our finding was that judges who had very diverse clerks were willing to depart from the conventional criteria of top law schools or students at the very top of their classes.
They would say things like, I just am not confident that every clerk who’s capable of doing good quality work just happened to go to one of four or five law schools. And instead they had a lot more confidence in this idea that it wasn’t taking a risk to hire someone outside of an elite law school, that they were capable of finding someone who could do very good work from a much broader range of places.
JEREMY FOGEL: And I would just add to that. I think our collective impression was that the top five law schools, or the top 10, or the top 14, or whatever the cutoff is– it’s a shortcut. It’s heuristic that a lot of judges use in hiring that they feel safer. They say, well, OK. I mean, I’m not taking a risk if I hire somebody from one of those schools, whereas if I– they feel as though if they go outside of that category, they are taking a risk.
And the judges who had the most diverse cohorts of clerks– and I’m using diversity very broadly as well, certainly not just race, and gender, and ethnicity, but also socioeconomic and other kinds of background factors– that they were willing to not use that shortcut. So they certainly hired people from those elite schools, but they also hired people from others.
And they were very proud of the outcome. They felt that they got more of a mix of people, more of a mix of perspectives. They felt maybe that some of their colleagues who were not doing that were in a way selling themselves short by not being willing to look beyond their comfort level.
That it seemed like I don’t have the time to take a chance, or my work is too important for me to take a chance, so I’m not going to look outside the familiar turf. I think judges who themselves came from outside the familiar turf were much more willing to do that because they didn’t have that same heuristic at play.
ERWIN CHEMERINSKY: The second aspect that you look at is the role ideology plays in hiring. And I was surprised in reading your study that the vast majority of the judges you talked to indicated that ideology didn’t play a role in their hiring. We’re interested to hear your thoughts about what you learned.
GOODWIN LIU: I would say that I was surprised, too. I thought that was one of the most surprising findings that we had. And at first blush, one might say, oh, my gosh, are these judges not acknowledging the obvious? Because many empirical studies that are out there of the Supreme Court but even of the other federal courts find a lot of evidence of ideological matching between judges and their clerks.
And so one might be tempted to say, well, they’re not being candid with you, or they’re not acknowledging what is the reality. But I don’t think that’s actually what’s going on.
We had no reason to think that the judges were not candid with us with respect to that particular question when in fact, we asked much more or equally at least sensitive questions very directly to them like how many Black clerks have you hired? Have you ever tried to hire in this category that– we got very candid responses. And so it’s not really I think a question of their truthfulness.
I think rather a more complicated story emerges, which relates to our sample and the general makeup of the applicant pool. So first, I think it should be acknowledged that our sample relied on a series of sampling buckets, if you will, in order to get a variety of dimensions of diversity among the judges that we were looking for.
So for example, we oversampled minority judges because there are so few of them, and we wanted to make sure we had a very large number in our pool. And it turns out that we ended up with, I believe, 30 of the 34 minority judges who were eligible for our study at the time. And when I say eligible, I mean that we had a cutoff of judges who had had three years of hiring under their belts.
This also eliminated, as a consequence, most of the recent appointees by President Trump. And we have none of the appointees by President Biden, right? So the newest judges of the last two administrations are not in our sample. We do have three– I should say we do have three judges appointed by President Trump, but it’s a small number compared to how many are out there.
If you just keep that in mind– and then keep in mind another fact, which is that the best political science studies that have looked at this, detail that most applicants for clerkships from the top schools– and here, top can be quite broad. Let’s say top 20 or so– are liberal in their orientation.
And this is based on campaign finance data. This is based on their political donations as tracked individually because this information is public. It’s something on the order of three to one, which is quite askew.
And so what we observed in our study essentially was we had a majority of Democratic appointees in our pool because the high number of minority judges– they trended Democratic. That’s just the makeup of that pool.
They were reporting I think quite honestly that they did not apply ideology in their hiring because if they were interested in matching– and they didn’t say that they were. But if they were, they didn’t need to do anything to get it because the pool that they see is largely a left of center pool just if you look at political orientation alone.
What we were missing in the study were the group of judges who had hired largely conservative clerks. And we have– this was not part of our study, but we have a variety of other ambient information from our colleagues and talking to people in law schools that many of the conservative judges hire off plan, which is to say they go earlier than after two years hiring plan.
These judges didn’t show up in our study. So to the extent that there is some matching that’s happening, we got inferences from other comments from judges that by the time they are hiring on plan– and this is both Republican and Democratic appointees. It’s not partisan. By the time they’re hiring on plan, they don’t see many conservative applicants on the pool. They’ve all been snatched up.
And so to the extent that there is cross ideological hiring going on, it is by Republican appointees hiring liberal clerks. And it actually shows up in some of the empirical data and that showed up in our study as well that there were some Republican appointees we interviewed who said, oh, yeah, I hire– most of my clerks are liberal because that’s who I see, right?
So I think that the one last factor I would say is that the ideological matching that happens at the Supreme Court hiring level also casts a bit of a shadow over the practices of the Federal Courts of Appeals such that the segmentation that happens in the clerkship market that I’ve already described is exacerbated by the fact that if you want to clerk for a feeder judge, you are largely matching all the way up the line.
Meaning feeder judges who will say Republican appointees told us, I cannot place a liberal clerk who clerks for me with a conservative justice on the court, nor can I place a liberal clerk with a liberal justice on the court because the general practice, as it has emerged of the Supreme Court justices, is to hire ideologically matched law clerks from ideologically matched judges.
And so it’s lockstep all the way up the line, and deviating from that isn’t very prevalent if it happens at all. And so that further hardens I think some of the patterns that we see.
So our general observations are that if we want ideological diversity among clerks in particular chambers, it’s going to require a couple of things, one, probably some changes in how Supreme Court justices hire, and then secondly, much stronger signaling by judges in the clerkship market that that’s actually what they’re looking for. But it’s very hard to fight the segmentation that’s already happening in the market at the get-go.
ERWIN CHEMERINSKY: And what you said is something that I also say we’re seeing among the students applying for clerkships. You referred to a hiring plan. And this is one where the federal judges are not supposed to consider students for clerkships until June of their second year of law school.
But of course, there’s no way to enforce that as against Article III judges. And we’re hearing, especially of conservative judges who are not following the plan, and in some instance, even hiring first-year students in the second semester. And it’s interesting. This isn’t the first attempt at a hiring plan, but it’s the first time I’ve seen it collapsed along ideological lines.
GOODWIN LIU: Yeah. Unfortunately, we don’t have the data in our study to actually approach this in a systematic way. But what you just said, Erwin, certainly matches things that we heard here and there from some of our interview subjects and what we’ve heard outside of our study.
And some of the judges expressed concern about this because of the appearance that it creates. The segmentation in the clerkship market mirrors the polarization in society more generally. And so many judges said, hey, I would actually like to have a broader spectrum ideologically of law clerks.
But I just don’t know how to get it because I can’t– if I want to be on plan, which serves a number of important other purposes, which we can discuss, including giving students who don’t have as much social capital or capital in the legal field, a longer runway to develop themselves so that so many judges are committed to the plan for that reason. But they can’t get the ideological diversity that they’re looking for with that approach.
ERWIN CHEMERINSKY: I want to move to another factor that you discuss, which is the desire for socioeconomic diversity. And you found that the judges really wanted to have this. And I’m interested in the obstacles here. Some of it is, how did the judges find out socioeconomic diversity? I’m the first in my family to go to college, but I don’t put that on my resume. And I don’t know what [INAUDIBLE] for that.
And also it may be that those who are more socioeconomically diverse are less likely to know about clerkships. I didn’t apply for clerkships in law school because I didn’t know about what a clerkship was. My sons, who have gone to law school, knew to apply for clerkships.
And they may also be more economic pressure, especially on those who come from more economically disadvantaged backgrounds to take things that are a bit more lucrative than clerkships. So I’m really interested in what you found out relates to all of this.
JEREMY FOGEL: Part of it is the law school issue we talked about earlier. Judges, who hired from a broader band of law schools, also reported having a more socioeconomically diverse cohort of clerks. Some people had even gone to night school programs because that’s what they could afford to do because they were working during the day. And that, I think, was one of the markers.
But I think another one was intention on the part of the judges, letting it be known in their hiring when they were talking with clerkship advisors at law schools, or speaking at events, or other ways that they were putting their preferences out there. And this goes to other things as well. It goes to race and gender, and other factors.
But in this area of socioeconomic diversity, just letting it be known that you want people who have that diversity in their backgrounds. I mean, I have that experience personally, speaking with law school professors and clerkship advisors that I really want people who are not from a cookie cutter.
I’m looking for people whose backgrounds are unusual. I mean, I had one clerk who grew up on a dairy farm in Montana, and he was the first in his family. And it’s like those are things that I think resulted from my saying to people, this is the kind of person I’m looking for.
MARY HOOPES: Judges talked about reading cover letters closely, and that was one way that they could identify those kinds of applicants for those who are looking for that dimension of diversity. The judges really care about who their clerks are as people. And they talked about reading cover letters, trying to get a sense of who this person was, and what kinds of things they had experienced in their background, and why they would be a good match for that judge.
ERWIN CHEMERINSKY: The next factor you talked about is gender and the role that gender plays in clerkship hiring. We’re fascinated of what your conclusions for that and whether you’re surprised by them.
GOODWIN LIU: So I think the biggest surprise in this area was not that people considered it, but that they were so direct and straightforward in how they considered it. I think judges, many of them, just flat out told us, I’m looking for two and two, or I’m looking for always at least one of another gender. So I’m not having four or three of the same. In other words, they were totally intentional about the composition gender wise of their chambers and very aware of this.
The other finding I think is that although virtually every judge we spoke to– not entirely every, but virtually every judge– paid attention to this, the Democratic appointees said that this materialized fairly naturally within their applicant pools, whereas the Republican appointees said that they had a little more difficulty.
And I think there are data to support a gender skew in terms of ideology. If you look at ideology, there are far fewer women law students who identify as conservative, and that may skew the pool that Republican appointees see.
And several of the judges actually were quite candid in making comments that they felt this was problematic, that they felt that being identified as a Republican appointee did not help them with women. One of them went even so far as to say, I’m not seeing a lot that would attract women to the Republican Party right now or words to that effect.
So they were very aware of the societal context in which their hiring was occurring. But I would say that, overall, everyone was very attentive to this and felt that from a diversity standpoint. As one judge said, I don’t want my chambers to look basically like a fraternity house. And so it’s like a culture issue and also a diversity of perspectives issue for them.
JEREMY FOGEL: I know we’re going to talk about racial diversity in a minute, but I think it was interesting. One of the things that was very interesting to me, not so much surprising, is it confirms something that nobody really had a problem with making affirmative efforts to achieve gender diversity.
I don’t think there is any judge we talked to of the 50 who had a problem with that. And yet when we got to race, we had a much more complicated picture, which we’re going to talk about. But it’s just interesting how those two things differ.
ERWIN CHEMERINSKY: I wonder if there’s two things operating there. One is most law schools are now more than 50% women. Our law school is 63% women, which inevitably would make gender diversity somewhat easier. And second, I wonder if the issue with regard to racial diversity is so tied to the politics with regard to affirmative action.
JEREMY FOGEL: Yeah, I think that’s right. And I think we– I think that certainly came up when we talked about racial diversity. But I was struck by how uncontroversial gender diversity is. I mean, it’s great. I mean, I was very happy that it’s not controversial, but it just– I was surprised at how unanimous that sentiment was.
ERWIN CHEMERINSKY: Well, let me use that as a transition to move to talking about racial diversity. It’s a very substantial part of the article if it needs to be. We’re really interested in how you would present the differences among the judges you talked to, your different categories in the paper.
MARY HOOPES: So we ended up, as you say, dividing it into four categories, which, of course, are rough. There was a lot of nuance here. But the first was just two judges who we refer to as colorblind, and these were judges who simply said, I want the best people. I don’t think about people in this way. And I hope I never will.
We think this probably was underrepresented in our sample, this perspective that judges who felt this way may have been less likely to agree to participate. But then the remaining 48 did embrace racial diversity to at least some degree, and, of course, it varied quite a bit. But they were all willing to say they valued racial diversity.
And there was a second group that valued it, but very reluctantly, and would say that they often contrasted it to socioeconomic diversity, saying that that really was a better proxy for what they were looking for, but that they would look at race as essentially a plus factor between two candidates that were otherwise identical.
Then with the remaining judges– this was 11 Republican appointees and 32 Democratic appointees– they all embraced racial diversity. They were very happy to have it. They strive for it. But what we found was a further difference between aspiring to have it and the strategies that you needed to actually achieve it.
And so we had this last group of judges who had either taken efforts to shape their pool through going out and affirmatively recruiting– were also willing to go outside of the conventional criteria. So they were willing to look beyond the traditional schools and people from the top of their classes. So they had active strategies to achieve it. Rather than simply aspiring to have racial diversity, they had these strategies to be very intentional about it.
JEREMY FOGEL: Yeah, I would say from my perspective, I think that was the most significant finding that we made with regard to racial diversity was that the people who were successful in achieving that. And if the judge had that as a goal– and that was most of our sample, and I agree. I think we underrepresented people who see it differently because they didn’t participate in the study. It’s not that we didn’t invite them, but they just didn’t participate.
The people who were actually successful in achieving that goal were people who had an intentional strategy that the notion that wanting it is enough, that if you just want it, it’ll come to you. That really doesn’t work unless you– and in work, there were a couple of exceptions. I mean, people located in very, very desirable locations didn’t have any trouble getting diverse applicants.
But for the most part, if you wanted to get a diverse pool of candidates you were likely to hire, you had to go out and make some extra efforts. And I think that was the consistent message we got from the judges of color who were part of the study, that they said that’s how they’ve done it. That’s what they’ve needed to do.
MARY HOOPES: Yeah, and in some cases, that took the form of pretty extreme efforts of reading fellowship announcements, actually identifying people and sending them a letter, saying come to my chambers, consider clerking for me. For a lot of other judges, it was regularly being out and about at law schools, meeting people at dinners who would later become their clerks.
And they talked about how a lot of their racially diverse clerks might have been inclined to self-veto. They said there were clerks who said, I would have never applied to you had you not been sitting next to me at dinner and encouraged me. I would have thought I didn’t have the grades. I didn’t have the qualifications. And so that gave us a window into how this increases diversity by overcoming some of this inclination to self-veto.
ERWIN CHEMERINSKY: Goodwin, did you want to add anything in terms of the conclusions you came to with regard to racial diversity?
GOODWIN LIU: Well, I would just add one other thing, which is that it’s certainly true as we report that the minority judges in our study had, on the whole, greater success in hiring minority clerks.
And so we were interested– I think some people might look at that finding and say, well, they have the advantage of being prominent minority judges. And so there’s a, again, segmentation, natural attraction that applicants may have. I think there is an element of that that was reported to us.
But I think at least equally important was that the minority judges themselves said that it wasn’t like I just got appointed, and all these Black applicants appeared. They themselves had to go out, and pound the pavement, and show up at law schools, do the outreach, go to the dinners, judge the new courts, make themselves visible in essence, and build their own pipeline.
Some of them had built extremely extensive personal pipelines into their chambers through their network of former clerks, through district court judges whom they know, through their former clerks who are now in law firms. So a lot of effort goes into this.
And one of the things I think that our study supports is that this is not specific to minority judges, that any judge can do this. And in fact, we do have a few judges, who are not minority in our sample, who have done these efforts too.
And the good news I think is that the market does respond, which is many of them said there’s a snowball effect essentially. Like once you signal in the market that you actually will consider people from diverse backgrounds, and that you actually do end up hiring them, then more of those people will then apply to you in the future. And this builds on itself. And we heard this repeatedly from both minority and non-minority judges.
JEREMY FOGEL: Yeah, and I can think of two Republican appointees, both notably conservative who made conspicuous efforts to let people know that they were hiring very diverse groups of clerks. And they wanted to hire good. And they made extra efforts to do that. And they got the– that they got positive results.
ERWIN CHEMERINSKY: Are there other major conclusions that we didn’t touch on that you would want to discuss?
JEREMY FOGEL: I think that– and I really say this with all sincerity. I was impressed by how thoughtful the judges we interviewed are, all 50 of them. I mean, I think everybody really took seriously what we were doing. I think it’s one of the reasons that I ended up feeling very good about the study is I thought that people really gave it their best. And it made me proud of our judiciary.
And I just say that as really a compliment to the people who were the subjects of our study. Yeah, and I think so by pointing out things that we think need to be done, improvements we think are needed, I don’t want to take anything away from what people brought to the table because I was very impressed.
ERWIN CHEMERINSKY: And then asking about your recommendations, I was thinking of it in terms of what recommendations you would make to judges, because one of the points that you make from the very beginning is how decentralized the hiring is each judge does it, and how much we value the independence of the judges doing it, and how they do this in isolation from other judges.
So I’m interested in what recommendation you have to individual judges. I’m interested in what recommendations do you have to law schools. Obviously, as the dean of a law school, I’m particularly interested in that. And finally, what recommendations do you have to law students who are going into the process? So maybe to start with what this seems most directed at judges, do you advice based on this for judges?
MARY HOOPES: I think one of our findings relates to judicial culture because as you say, it’s necessarily decentralized. It promotes judicial independence, and yet at the same time, it potentially inhibits diversity in law clerk hiring because we find very consistently that there’s just this culture of silence around law clerk hiring.
But judges feel very reluctant to intrude upon what they see as the sacred prerogative of their colleagues, and yet at the same time, they express an eagerness to learn from their colleagues. They were very aware of their colleagues’ practices. They would sometimes say Judge So-and-so in our circuit regularly hires Black law clerks. I’ve seen them at en banc hearings or panel dinners, but I don’t know how they’re doing it.
And sometimes the interviews seem to be the first chance that a judge had really had to reflect on the hiring and to see that there was this real lack of diversity with respect to Black clerks, for example. And so judicial culture seems to be one of the most significant things that needs to change.
And yet also on an optimistic note, I think if there are opportunities, and it becomes a regular practice for judges to learn from each other, I think that could be very successful that a lot of judges are understandably worried about departing from what they called their comfort zone of hiring a clerk from a less elite school or not towards the top of their class. And yet if they could hear from their colleagues who regularly do this that they have very successful clerks, that really could be an opportunity for a change.
JEREMY FOGEL: Yeah, my advice to judges is just it’s helpful to talk about it. And I say that recognizing these are uncomfortable conversations a lot of the time. You feel like your colleagues might judge you. They might think less of you because of the criteria you’re using or the kinds of people you hire. And you’re disclosing something fairly intimate about yourself really when you talk about this. So I think it’s awkward, but I think the more judges can talk about it, the better.
GOODWIN LIU: I would just add that I would want to leave judges with a sense of possibility and the notion that they can make a difference on this. One way to think about the clerk hiring data is based on the information we found in the study.
We report that Black judges, though they comprised only about one eighth of the entire pool of the circuit judiciary at the time of our study, probably accounted for at least half of the Black clerks that are hired in a given year. Now, that’s a very significant disproportion.
But another way of viewing that data is I think we did the math to say that if every judge, who hires three or four clerks a year, were to hire just one additional Black clerk every three years, that would double the number of Black clerks clerking in the federal judiciary at the circuit level.
So a small gesture, a small decision, a small adjustment can make a huge difference given where we are. And I think hopefully that inspires in many judges an idea that they can individually make a difference on these issues.
ERWIN CHEMERINSKY: Let me shift to law schools. Are there things that law schools can do better based on the study that you’ve done?
JEREMY FOGEL: What made a difference to me in this dimension was getting to know people at law schools and say, I am looking for these kinds of people. I think the judges need to not be shy about having those conversations, and the law schools need not to be shy about having those conversations with judges.
And I never said I have quotas, or I want this kind of person this year. But I just said I’m particularly interested in highly qualified minority applicants. I’m interested in people from diverse economic backgrounds. And so I put criteria out that told the people I knew at the law schools– this is a judge who’s open to hiring these kinds of people. So when they were having conversations with students who are interested, they knew that.
And then I think the other thing– and it is nothing new. I mean, I’m sure, Erwin, you’ve said this so often. But the law schools need to do a better job of encouraging students who are self-vetoing, who might be thinking they’re not qualified and really, really making that extra effort.
GOODWIN LIU: Some of the judges did report to us that they felt that law school’s filtered a lot in terms of who they sent to particular judges. And some of them were a little bit disappointed, saying that I didn’t see this person appear in my pool because the law school didn’t think that I would even think about hiring this person when in fact, I actually was very interested.
And I think that this speaks to the need for ongoing efforts to really make dialogue between the judges and the schools. I think judges are, as we report, somewhat shy about this topic. It’s a sensitive topic. And some of them reported that they had never really reached out to law schools to tell them what they want. And some of them felt that it was kind of risky even to do so. So there is a kind of diffidence about this issue.
And I think if law schools, including the clerkship directors, can be more proactive in drawing out judges and asking what their preferences are that– we’re urging the judges actually to take the initiative, too, to start that conversation, but it’s in both directions. And I think there is a lot of– I wouldn’t say a lot, but there are sometimes misperceptions about what people want. And then that’s redounds to the detriment of the students.
ERWIN CHEMERINSKY: I think that’s a great point. I think your point about the importance of dialogue with judges is crucial. I think what Jeremy said of the law schools encouraging students to apply– it’s not only self-vetoing. It’s students not thinking about that path and reaching out to them and encouraging.
But the only good one that I’d say is I’m very careful in who I recommend, that I recognize that if I recommend somebody to a judge and they do poorly, that judge isn’t going to trust me in the future. And I’ve got to be very careful not to oversell my students while at the same time selling.
And there have been instances where I’ve said to a judge, you’ve taken to my students as clerks before. I don’t think this person is at that level. So well, you’re right. We need to sell our students. I also think there’s a burden on schools if we’re going to be trusted to not oversell our students, too.
JEREMY FOGEL: Yeah, there is a professor showing me nameless who would write to me often because I got a lot of recommendations from this professor. And they always would write something at the bottom of the letter, which was sort of an addendum to what was in the type letter. And that was how I knew.
ERWIN CHEMERINSKY: Finally, and this is the perfect place to end. I imagine that many of those who are listening to this are in law school or recent graduates who are thinking of clerkships. From your study, any advice or words of wisdom to them?
MARY HOOPES: I think one thing that stood out which I had mentioned before was the cover letters to take time to individually research judges. Judges often mentioned that they were interested and why is this person applying to me so showing some interest in that judge, being willing to be pretty candid about your own experiences because that can really matter to judges.
And then, of course, as we’ve talked about, to make sure that you’re not setting your sights too low, that you might not be self-vetoing, that you’re considering a really broad range. And if you’re not from an elite school, potentially looking at judges who themselves didn’t attend an elite school based on our findings might be one thing that you consider.
JEREMY FOGEL: And I think just to Mary’s point, I mean, personalizing yourself– I mean, not sending a form letter, but really, really thinking about the person to whom you’re writing and what that person is like and what you know about them. And I think judges on the receiving end of letters like that really appreciate them.
GOODWIN LIU: I echo what both Jeremy and Mary have said. And I would just say one last point about the times in which we live, I think the ideological polarization is a big issue. And it goes to the credibility of the judiciary. I’m very sensitive to that myself being a sitting judge.
And I would just urge students not to make overly categorical assumptions about judges based on the party of the president who appointed them and really do individual research into people to find out what they’re about, whether they are good mentors, what the quality of the clerkship experience is like.
And so to be a little thoughtful I guess and eschew the labels, because I think we all really need a judiciary that is viewed as not prone to the same partisan influences that we rightly expect in some ways in the political sphere. And that’s one thing that the clerkship process really, I think, we need to keep an eye on at this point in time.
ERWIN CHEMERINSKY: Great place to end the conversation. Judge Jeremy Fogel, Justice Goodwin Liu, Professor Mary Hoopes, thank you for your terrific, important article, and thank you for taking the time now to discuss it.
I hope you enjoyed this episode of More Just. Be sure to subscribe wherever you get your podcasts. If you have a question about the law or a topic you like to cover, send an email to morejust, all one word, email@example.com to tell us your thoughts. Until next time. I’m Berkeley Law Dean Erwin Chemerinsky.