Many federal judges want clerkship diversity but say the topic is rarely addressed in court, new study says

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In a recent study of federal appellate judges, many indicated that they had difficulties hiring Black law clerks. Black jurists, who make up less than one-eighth of the federal appellate courts, hired more than half of the Black clerks.

Titled Law Clerk Selection and Diversity: Insights from 50 Sitting Judges of the Federal Courts of Appeals, the study reports that judges surveyed had a hard time hiring Hispanic clerks, as well. Additionally, the pool uniformly indicated that the topic of law clerk diversity was rarely raised within the court.

According to the study, released Nov. 30, several judges surveyed said they want more faculty to identify and refer minority clerk candidates. However, many said they had never asked for that directly when speaking with law school faculty and deans.

One who did later described it as “risky,” according to the study. It cited a recent National Association for Law Placement report, which found that for graduates with federal clerkships, 79.2% were white, 7.9% were Latinx, 6% were Asian and 4.1% were Black.

Released by the Berkeley Judicial Institute at the University of California at Berkeley School of Law and the Pepperdine University Rick J. Caruso School of Law, the study was written by California Supreme Court Justice Goodwin Liu; Jeremy D. Fogel, a former U.S. district court judge who is now the executive director of the Berkeley Judicial Institute; and Mary S. Hoopes, a law professor at Pepperdine University.

Researchers conducted in-depth interviews with 50 active federal appellate court judges. All the circuits were represented, and on average, those surveyed had 14 years of tenure. The pool comprised 18 judges appointed by Republican presidents and 32 judges appointed by Democratic presidents, according to the study.

Almost every judge interviewed reported that they valued diversity. That included a range of characteristics, including gender, race, ethnicity sexual orientation, economic status and ideological views.

Judges appointed by Republican presidents indicated that socioeconomic diversity was the primary diversity that they were looking for when hiring clerks, the study found. Also, while many judges saw racial diversity as positive when considering clerk applicants, five were reluctant to consider it, and two “believe strongly” that such consideration was inappropriate. The authors noted that other judges who had those views probably did not participate in the study.

Gender diversity was also addressed. Only two said they selected clerks without considering gender, according to the study, and out of the 48 who did, 14 had specific goals. Judges appointed by Republican presidents reported having more difficulties drawing female applicants, according to the study.

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