Published: July/August 2023
Written by: Harrell Watts, Esq.
This year marks the seventy-fifth year anniversary of Justice Felix Frankfuter hiring William Thaddeus Coleman Jr., the first African American to serve as a Supreme Court law clerk. Since then, members of diverse groups have strived to follow in the footsteps of Attorney Coleman, looking to obtain clerkships at all levels of the judiciary. However, many have found the process of obtaining federal clerkships to be an insurmountable task.
The percentage of diverse law clerks highlight the legitimacy of these sentiments. An article published by the ABA Journal cited to a recent study that found of graduates with clerkships, 79.2% were white, 7.9% were Latinx, 6% were Asian, and 4.1% were Black. Ultimately, the low numbers in diversity amongst federal law clerks is an unfortunate trend that has persisted even in light of advances in opportunities for minorities in other aspects of the legal profession.
How to Improve Diversity in Clerkships?
Recently, a law professor and two judges produced an article entitled Law Clerk Selection and Diversity: Insights From Fifty Sitting Judges of the Federal Courts of Appeal. This article provides a unique look at the way judges consider diversity in the hiring process. Despite the low numbers cited above, most judges surveyed in the study ascribed positive value to racial diversity and consider race to some degree in evaluating candidates. However, many judges who view racial diversity positively still report difficulty hiring Hispanic and Black law clerks, which begs the question: how can we solve this problem?
Fortunately, the study’s additional findings provide a basis for some ascertainable solutions. First, and likely the most obvious solution, is to increase diversity amongst the judiciary. As the authors of the article keenly stated, “[i]n short, diversity among judges affects diversity among law clerks.” Current diversity numbers regarding Black judges and Black law clerks underscore the residual value representation at the judicial level can have in creating a more diverse pool of law clerks. The study estimates that Black judges, who comprised less than one-eighth of active circuit judges during the study, accounted for more than half the Black clerks hired each year in the federal courts of appeals. Over the last several years, there has been an increase in diversity amongst judicial nominees, which features over seventy women, and also includes African Americans, Asian Americans, Latinos, a Native American, and a Muslim American. As this emphasis on diversity continues to increase amongst the judiciary, law clerk diversity numbers should also improve.
Another useful solution is for judges to expand the hiring criteria. Due to the sheer volume of applicants, most judges will select from previously developed networks based on familiarity. Undoubtedly, this process makes what can be a difficult decision much less daunting. However, by leaning on familiarity, judges can miss opportunities to connect with law clerks that may bring new perspectives and ideas to chambers. Often, to find these candidates judges may need to employ a wholistic approach to the evaluation process and must be intentional about seeking diverse candidates. Unsurprisingly, the study found that judges with the most successful records of diversity hiring are those who make deliberate efforts to draw minority candidates into their applicant pool and place greater emphasis on indicators of talent besides grades and law school rank. Importantly, judges who take this approach acknowledge that intelligence and ability are not confined to grades and the name of the institution behind the candidate. These judges also recognize that supporting diversity does not mean sacrificing the work product or hiring unqualified law clerks. Instead, supporting diversity brings value to the judiciary and society as whole by ensuring that all groups are represented.
Finally, increasing diversity in clerkships requires increasing awareness about their value and demystifying the clerkship process. For over twenty years, the American Bar Association has aimed to complete those tasks through its Judicial Clerkship Program (JCP). Every year, students who might not normally consider judicial clerkships and judges, who may not normally recruit clerks from certain schools, come together to modify their views and expectations. The three-day program allows law students to explore legal issues, perform legal research, and defend their positions to colleagues and judges. Inevitably, the JCP and other similar programs create pipelines for judges to explore opportunities to hire more diverse candidates. In order to increase diversity in clerkships, more programs need to be developed that follow the blueprint of the JCP.
For young lawyers, serving as a judicial law clerk is a mark of distinction and honor that can help advance their career trajectory. In many instances, former law clerks have an advantage when pursuing careers in academia, as litigators in prestigious areas of both the public and private sector, and in securing appointments to the bench. On this basis, increasing opportunities at the beginning of a young lawyer’s career to serve as a federal law clerk may lead to increased opportunities for growth in the future. Accordingly, as the legal field continues to champion diversity, an emphasis should be placed on clerkships.
Harrell Watts, Esq. currently serves as a federal law clerk in the Middle District of Florida.