More than a decade after minority groups first started pushing for more diversity among federal law clerks, legislators on Capitol Hill are questioning why the latest statistics from the federal courts show a move in the opposite direction.
Federal judges who appear on Capitol Hill for budget hearings have heard members of Congress criticize the lack of diversity among law clerks almost every year. This year, as in previous ones, those judges said there is value in diversity and ”significant room for improvement.”
But the latest breakdown of law clerks by race, cited at a House hearing last month, shows African-Americans fill fewer of those spots now than they did in 2000, and dropped even further between 2005 and 2009, the latest year for which statistics were available. At the appellate level in 2009, for example, only one in 40 clerks was African-American.
“I would like to get clarity,” Representative Barbara Lee (D-Calif.) said during an appropriations hearing about the U.S. courts last month. “We’re spending quite a bit of money to do the right thing, and if we’re going in the wrong direction in some of these categories, then something’s not right.”
As a result, Congress has asked the Administrative Office of the U.S. Courts (AO) to compile up-to-date statistics, which are expected to be delivered next week. This is the latest scrutiny into what by many accounts is an ingrained culture of federal law clerk hiring that is becoming more competitive and is, at best, tough to change.
Judges have long said recruiting minority attorneys is difficult. Missed educational opportunities put fewer minorities in the pipeline of applicants, and good candidates often have law school debt to repay — and big firms enticing them with far heftier salaries to offer. What’s more, judges can get overwhelmed with hundreds of applications, and often depend on recommendations from previous clerks or law school professors they know, many times freezing out applicants who may be equally qualified but come from schools with less-accomplished alumni.
The deck gets even more stacked against minority clerkship applicants. Julia Gibbons, the chairwoman of the U.S. Judicial Conference’s budget committee, told Congress that it is even more difficult now because more and more judges hire law clerks who spend their career working for the judge. “There are fewer opportunities for new people and fewer opportunities to diversify the law clerk ranks,” she said.
Gibbons said the judges make their own decisions about which clerks to hire. “Individual judges, when they make those decisions, may have good intentions, but they do not have in mind the big picture and the statistics you and I look at in terms of the insufficient minority representation among law clerks,” Gibbons told Lee.
According to statistics from the AO, as of fiscal year 2008, 10.9 percent of the 4,239 federal law clerks were minorities. During that time frame, 30.6 percent of minority judges’ clerks were likewise minorities, though only 7.6 percent of white judges’ clerks were.
A different AO report to Congress shows that during a recent five-year period, those numbers were generally, though not in all cases, heading down. From 2005 to 2009, overall, the percentage of minority clerks basically remained steady at federal district courts, and dropped by just shy of 1 percent in federal appellate courts.
The decrease for African-American clerks during this period was most pronounced. Their numbers dropped both in federal district courts, from 4.5 percent to 3.9 percent, and in appellate courts, from 3.1 percent to 2.5 percent. Likewise, the percentage of Asian-American and Native American clerks also dropped during this time, but by a smaller rate. At the same time, the rate of Hispanic judicial clerks increased slightly, from 3.3 percent to 4.4 percent in district courts, and from 1.8 percent to 2 percent in appellate courts.
The issue first gained national attention in 1998 with reports in USA Today and Legal Times (now merged with The National Law Journal) about the lack of diversity among law clerks at the U.S. Supreme Court. Members of Congress have grilled justices about their hiring practices ever since, but the Court has declined to tally or disclose the ethnic make-up of its clerks. The low numbers have triggered protests from minority bar and civil rights leaders. Legislators who oversee federal court budgets have inquired about it since.
The 2005 to 2009 statistics suggest “a troubling trend” that is cause for concern and worthy of more study, said Debra Strauss, a former law clerk who published a study on law clerk diversity in 2000 and is now an associate professor of business law at Fairfield University.
Congress should look at recent law school statistics and trends to reach a deeper understanding of the potential sources of the problem, especially with fewer clerk positions available, Strauss said. “It could very well be [that judges] are not having, high enough on their radar, the priority of ethnicity and race in their hiring practice,” Strauss said.
A fair employment practice report for U.S. courts that AO issued in 2008 found a correlation between the race of the judges and the race of their law clerks, as have been noted in the AO statistics. That suggests either that minority judges are more likely to select minority career and term law clerks than are white judges, or that minority attorneys are more likely to apply for law clerk positions with minority judges, or a combination of both, the report concluded.
Judge Raymond Jackson of the Eastern District of Virginia, who is African-American, said he has not had any difficulty finding and recruiting minority clerks, and thinks there are plenty out there for those judges are interested in hiring them. “First you have to be interested in hiring more minority clerks, in order to vigorously pursue the process,” said Jackson. “I believe the federal judiciary has to reflect the diversity of the nation it serves.”
To garner interest, the U.S. courts have put their hopes in a pilot internship program, started last summer, that encourages minority law students to apply for summer jobs in federal judges’ chambers. It has been successful so far. The initial goal was to place 20 interns, and the program ended up placing 42. Of the 20 participating judges, 19 said they would “absolutely write glowing letters of recommendation” for those wanting to become clerks this fall. There are 50 participating judges and 60 placed interns for the coming summer.
“I think a lot of that word of mouth is getting around the judiciary. It does bring something important to chambers and the judiciary as a whole,” said Dana Horst, director of development and marketing at the Just The Beginning Foundation in Chicago, which works to increase racial diversity in the legal profession.
Horst said change is slow-going, and it’s disappointing to hear numbers might be going down, but the response to the pilot program is “heartening.”
“It means we’re doing something right, and someone’s paying attention,” Horst said. “When these students are finishing, hopefully within the next few years we’ll start seeing more minority clerkship hires across the county.”
Gibbons hopes she’s right. “We’re hoping that all these efforts pay off for us,” she told Congress. “We recognize the deficiencies in our results today. And we’ll keep plugging at it.”
Todd Ruger can be contacted at email@example.com.