Richard Lazarus has advised hundreds of clerkship hopefuls during his seven years on the faculty at Harvard Law School, and the 15 years he spent at Georgetown University Law Center before that.
Never once has he broached the subject of appearance with a student in regards to landing the job. That’s not entirely true. There was the time many years ago when he asked a female student, after the fact, whether she had removed her facial piercings for an interview with a federal appellate judge.
“I recall she looked at me quizzically and exclaimed something like, ‘Of course! I wanted to get the clerkship!’” Lazarus said. “Which she in fact did secure and she has since enjoyed a wonderfully successful career, first at the U.S. Department of Justice and later as a tenured law professor.”
Lazarus and others said that urging law students to look a certain way to appeal to a hiring judge—as prominent Yale Law School professor Amy Chua is said to have done with female students seeking clerkships with U.S. Supreme Court nominee Brett Kavanaugh—isn’t standard practice. Lazarus said he has no information about whether the allegation that Chua told Kavanaugh applicants that the judge on the U.S. Court of Appeals for the District of Columbia likes female clerks with a “model-like” femininity is true, but that such actions would be surprising. (Chua’s husband and fellow Yale law faculty member Jed Rubenfeld also reportedly told at least one student that Kavanaugh likes a “certain look.”)
Chua, who is reportedly in the hospital with a medical condition and is on leave from the school, and Rubenfeld, did not respond to requests for comment Friday. But on Saturday Rubenfeld sent an email to the Yale Law community with a statement from Chua in which she denied having counseled female students about their appearance in preparation for interviews with Kavanaugh.
“Everything that is being said about the advice I give to students applying to Brett Kavanaugh–or any judge–is outrageous, 100 percent false, and the exact opposite of everything I have stood for and said for the last fifteen years,” Chua wrote. “I always tell students to prep insanely hard–that substance is the most important thing.”
She went on to say she is proud of her record as a clerkship mentor, particularly for women and minorities.
Any indication that a judge has appearance-based preferences for clerks would be a warning sign, said Micah Schwartzman, a professor and chair of the clerkship committee at the University of Virginia School of Law. (Virginia is not an established feeder school for Kavanaugh, who predominantly hires from Yale and Harvard.) Schwartzman said he doesn’t address appearance in his conversations with clerkship applicants beyond the need for them to appear professional, as they would with any other job interview. He added that he has never gotten an indication from a judge that they prefer candidates who look any specific way.
“I just don’t think that the ability to do the job of a law clerk turns on how physically attractive you are. It shouldn’t be relevant to whether you are competitive for a clerkship,” he said. “As long as you are professional in chambers and have the ability and talent and ethic to do the job, then you ought to have an equal opportunity to do that job.”
Erwin Chemerinsky, dean of the University of California, Berkeley School of Law, also said that appearance never comes into the equation when he advises students.
“There are instances in which I have warned women students about a particular judge having heard from other of my students of inappropriate behavior,” Chemerinsky said. “But I never have discussed physical appearance preferences of a judge and would be very uncomfortable doing so.”
If Chua did in fact advise female Yale students that Kavanaugh tended to hire clerks of a certain look, she failed in her role as a mentor to law students, said Todd Peppers, a public affairs professor at Roanoke College who has extensively studied Supreme Court clerks.
“If true, it’s disconcerting that a law professor is telling applicants how to be more physically appealing to a judge or justice,” he said. “That seems inappropriate. What are you saying? You’re saying that you realize the applicant’s appearance and sexuality will not only impact their selection but might also impact their time there as well. If you’re saying a judge likes a certain physical type, aren’t you at least recognizing the possibility that female clerks might be opening themselves up to inappropriate behavior once they get there?”
Chua’s ties to Kavanaugh run deep. Not only has the influential professor advised a number of students who went on to clerk for him, but the judge also hired Chua and Rubenfeld’s daughter as a clerk. Chua penned an op-ed in The Wall Street Journal in July hailing Kavanaugh as a mentor to and champion of women. But according to The Guardian article that on Thursday broke the allegations about her and Rubenfeld’s advice to would-be Kavanaugh clerks, Chua advised one female student to send her pictures before going on an interview with the judge. (The article said the student did not comply.)
Chua also told The Guardian that qualifications are what matter when Kavanaugh selects clerks.
“For the more than 10 years I’ve known him, Judge Kavanaugh’s first and only litmus test in hiring has been excellence,” she said. “He hires only the most qualified clerks, and they have been diverse as well as exceptionally talented and capable.”
For her part, Yale law Dean Heather Gerken sent an email to the law school community Thursday calling the allegations an “enormous concern.” She urged anyone affected by misconduct to report it.
“While we cannot comment on individual complaints or investigations, the law school and the university thoroughly investigate all complaints regarding violations of university rules and take no options off the table,” Gerken wrote. “Neither the law school nor the university prejudges the outcomes of investigations.”
It’s not unusual for judges to have preferences in the clerk-hiring process, said Peppers and Schwartzman. But those preferences generally are focused on resumes, such as wanting clerks with prior work experience or high undergraduate grade point averages in addition to top law school grades. Appearance doesn’t typically enter the mix, they said.
Peppers pointed to former Supreme Court Justice’s Byron White’s preference for clerks who could perform on the basketball court, and the late U.S. Supreme Court Chief Justice William Rehnquist’s penchant for hiring just three clerks instead of four so they could play doubles tennis. Those preferences don’t cross any lines the way Kavanaugh’s alleged gravitation toward conventionally attractive female clerks would, he said.
“Sometimes there are law professors out there who think they know what would maximize the chances of a successful application,” Peppers said. “That may be based on fact or on conjecture. I think the proper role of the professor is to help your student apply for clerkships and also help them understand questions about fit. In a sense, you’re there to provide some wisdom and guidance, including protecting your students if they think a particular judge or justice has some issues.”