[ad_1]
I wasn’t everyone’s idea of what a law clerk “should” look like. I was assertive, confident, and voiced my opinions in chambers. For that, I was derided by the judge for whom I clerked as “bossy,” “aggressive,” having “personality issues,” and making him “uncomfortable.” In addition to the more serious problems I encountered during my clerkship — bullying, gender discrimination, and harassment — I probably wasn’t a “good fit” with the quiet, contemplative, older male judge for whom I clerked. But like most clerkship applicants, I applied broadly — across the U.S. and across the political spectrum, to any judge I was willing to work for — and I accepted the first clerkship I was offered.
I wasn’t looking for a lifelong mentor. I clerked because I aspired to be a homicide prosecutor in the D.C. U.S. Attorney’s Office. There was an unspoken expectation that applicants should clerk. Clerking in the courthouse where I aspired to practice law seemed like the right strategic move.
Both judges and law schools frame clerkship hiring as a question of “fit.” Judges look for the right person to “fit in” with their small chambers, and perhaps a clerk who complements their existing “law clerk family.” Clerks and judges work long hours, in close quarters and stressful circumstances, in small and physically secluded work environments, with just a handful of colleagues: there is an unspoken “chambers culture.” Clerkship applicants — law students and new attorneys often desperate for this “gold star” on their resumes — endeavor to pitch themselves as the right “fit” for whichever judge they are interviewing with — no matter the judge’s political ideology, geographic location, or professional background. Too often, applicants conceal their personality and identity to conform to societal expectations of what a clerk should look like: someone deferential who does not rock the boat or question the principal.
Who is a “good fit” in a small, hierarchical judicial chambers? Since the judiciary is still predominantly white and male, the “best fit” for a white male judge — especially as perceived by the white male Top 14 law school faculty members who help facilitate clerkship hiring for many judges — is probably a white male applicant. That’s who these older, white, male judges feel most “comfortable” with working long hours in close quarters — with whom they feel the most familial kinship. Because they’re hiring someone who looks like a member of their own family.
Law clerks are still overwhelmingly white and male: 79% of federal clerks and 72% of state court clerks in the 2019 graduating class were white, even though white students represented just 67% of law school graduates that year. Too few organizations focus on diversifying clerkship applicants, even though the lack of diversity among clerks has enormous implications for diversity in the legal profession generally. Today’s law clerks are tomorrow’s prosecutors and public defenders, Biglaw associates and partners, law professors, and judges. The pathway to the bench often starts with serving as a judicial law clerk.
The legal profession — including Biglaw — continues to prioritize the hiring of former clerks, who are overwhelmingly white and male. Firms lament the lack of diversity among hires, yet they focus on the same old strategies, including diversity fellowships and on-campus recruiting, while failing to recognize that the best way to diversify the profession is to address the root cause: a lack in diversifying judicial clerkships.
The federal judiciary has no formal diversity initiatives. There is no oversight over individual judges’ hiring. Judges are not required to report any data on diversity (or lack thereof) among their clerks — although legislation introduced in the last Congress would require them to. And since the federal judiciary is not subject to anti-discrimination laws, if you’re a diverse clerk who is discriminated against or harassed because of your gender, gender identity, race, ethnicity, age, or disability status, you have no legal recourse.
As recent research about diversifying appellate law clerk hiring highlighted, many judges are interested in hiring more diverse clerks. But to accomplish this, judges must expand their thinking about what a law clerk should look like. This means reaching beyond their standard criteria: the top law schools, the top 10% of the class, and the profile of clerks they’ve hired before — white men.
This same research revealed that nonwhite judges do the majority of diverse hiring. Yet even female and nonwhite judges have prior assumptions about what a clerk should look like, based on who they’ve hired and who their colleagues hire. There is perhaps even more pressure on these diverse judges if they are the “first” in their court or their circuit to achieve a judgeship, to ensure they hire only the best applicants, based on these prior assumptions.
“Good fit” is a euphemism for discrimination in hiring, as it is used by law school clerkship directors, deans, and faculty members facilitating clerkships, and by judges considering applicants. To be clear, this is likely unintentional: those who use this framing do not realize how much of the applicant pool they exclude. For law schools, it’s a form of shorthand to help applicants narrow their judge lists and to help clerkship advisors facilitate clerkships. For judges, while many tell me they intentionally work to diversify their hiring, they may not have fully considered whether this necessitates adjusting their expectations of law clerk profiles in order to capture a broader pool of applicants.
Because a judicial chambers is particularly hierarchical, “good fit” is also a euphemism for someone who toes the line, does not rock the boat, and does not question the power structure. An assertive, outspoken woman like me? Probably not the best fit for most chambers.
Yet judicial clerkships are pathways to prestigious careers in academia, the government, Biglaw, and even a future judgeship. Many government job postings require one year of work experience — a euphemism for a clerkship requirement. Unfortunately, the characteristics that likely would have made me a strong homicide prosecutor — outspokenness, tenacity, assertiveness, confidence, and attention to detail — worked against me in my clerkship. While I imagine there are chambers where I would have fit in better, the aforementioned qualities are not the ones most judges look for in clerkship applicants right now. Yet foreclosing candidates who are not “good fits” — women, nonwhite applicants, first-generation, and disabled applicants, and anyone else who is an “other” — excludes large swaths of the legal profession from career advancement through clerkships, perpetuating the white, male status quo.
Too often, mistreatment is characterized as “poor fit” or a “personality conflict” between judge and clerk. This enables the judiciary to discount the scope of problematic behaviors in their ranks and empowers some clerkship advisors to continue sending applicants perceived as “good fits” (white, male applicants) to clerk for judges like the judge for whom I clerked.
Law schools and judges have relied for decades on the same strategies for clerkship advising and hiring. Specifically, relying on preconceived notions of what clerks should look like, not wanting to take any “risks” by advising or hiring outside standard methods. It’s time to admit the system does not work for most applicants. Both law schools and the judiciary must commit to achieving solutions. Clerkships are overwhelmingly homogeneous in part because reliance on “fit” over skill perpetuates what would otherwise be discriminatory hiring practices, were judges subject to any oversight in hiring.
Discussions about law clerks’ personalities as a gauge of fit have the effect of excluding large segments of the law school population. For assertive women like me, the double standard that plagues women throughout their legal careers — women must assert themselves to obtain opportunities typically reserved for men, but are perceived as “bossy” and “aggressive” when they do — begins by disadvantaging some female applicants in clerkship hiring.
Judges tell me that hiring law clerks is one of their most important responsibilities: they rely heavily on their clerks. Clerks — at the very beginning of their legal careers — have enormous responsibility for consequential decisions affecting litigants’ lives, livelihoods, and liberty. Judges only hire clerks once a year, sometimes very early in an applicant’s law school career. Yet I worry judges perceive their hiring as too consequential. Many attorneys could do clerkship work — writing, research, and some advising — given opportunity, training, and supervision, especially if law schools are willing to be honest with applicants about what the work entails and properly train students to prepare for their clerkships. Some applicants just need a chance.
I also speak with judges about clerks who “didn’t work out.” Judges view this as a substantial failing in their role as hiring manager and a significant disruption to their chambers when one clerk does not carry their weight. This fear cuts against implementing any changes to their hiring practices.
Judges should not drastically lower their standards for clerkship hiring. Yet the high-stakes nature of judicial research and writing may be overblown. Perhaps judges should rely slightly less on their clerks and slightly more on the expertise that got them appointed or elected in the first place. It’s also incumbent on both judges and clerks to adjust and try to make the professional relationship work.
I cannot think of any other legal job where hiring managers use “fit” as the primary criterion. Government employers and law firms are subject to more oversight and scrutiny over their hiring: in many workplaces, a conversation about an applicant’s “fit” would be flagged by the Diversity, Equity, and Inclusion director, hiring manager, or human resources office. These workplaces, while they have not achieved parity, are at least making greater strides toward diversity than the judiciary.
Unlike most legal jobs, the judiciary is not subject to hiring regulations or oversight. It should be. In the meantime, heading into this year’s clerkship hiring cycle, judges must be mindful of the ways their preconceived notions and hiring practices effectively exclude many aspiring clerks — particularly historically marginalized groups — as well as the enormous power their hiring decisions will have over young attorneys’ future career success. Judges can help diversify the profession.
It’s time for the legal profession — including judges who hire clerks and law schools that facilitate clerkships — to expand their idea of what a law clerk should look like, especially if they insist on continuing to message judicial clerkships as necessary for career advancement. No longer relying on “fit” as the ultimate benchmark benefits clerks, considering both the outsized influence of clerkships on future career success and the significant swath of applicants this antiquated heuristic excludes. Let’s retire phrases like “good fit” — not just from our vocabulary, but from our hiring practices.
Aliza Shatzman is the President and Founder of The Legal Accountability Project, a nonprofit aimed at ensuring that law clerks have positive clerkship experiences, while extending support and resources to those who do not. She regularly writes and speaks about judicial accountability and clerkships. Reach out to her via email at Aliza.Shatzman@legalaccountabilityproject.org and follow her on Twitter @AlizaShatzman.
[ad_2]
